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to him, even during his sickness; consequent- | all over with wit, was a consummate debauly his punishment comprehended an additional chee; and a fine lady, though set off with a sentence of divorce. This patriot having en- brilliant imagination, was an impudent codured many years imprisonment, sunk under quette. Satire, which in the hands Horace, the oppression, and died in prison : this was Juvenal, and Boileau, was pointed with a gesuch a wound to the authority and rights of nerous resentment against vice, now became parliament, that even after the restoration, the declared foe of virtue and innocence. As the judgment was revered by parliament. the city of London, in all ages, as well as the
That Englishmen of all ranks might be ef- time we are speaking of, was remarkable for fectually intimidated from publishing their its opposition to arbitrary power, the poets thoughts on any subject, except on the side levelled all their artillery against the metroof the court, his majesty's ministers caused an polis, in order to bring the citizens into coninformation, for several libels, to be exhibited tempt: an alderman was never introduced in the star-chamber, against Messrs. Prynn, on the theatre, but under the complicated Burton, and Bastwick. They were each of character of a sneaking, canting hypocrite; them fined five thousand pounds, and adjudged a miser and a cuckold; while the court-wits, to lose their ears on the pillory, to be brand- with impunity, libelled the most valuable part ed on the cheeks with hot irons, and to suffer of the nation. Other writers, of a different perpetual imprisonment! Thus these three stamp, with great learning and gravity, engentlemen, each of worth and quality in their deavoured to prove to the English people, several professions, viz. divinity, law, and that slavery was jure divino. Thus the stage physic, were, for no other offence, than writ- and the press under the direction of a licenser, ing on controverted points of church-govern- became battering engines against religion, ment, exposed on public scaffolds, and stigma- virtue, and liberty. Those who had courage tized and mutilated, as common signal rogues, enough to write in their defence, were stigor the most ordinary malefactors.
matised as schismatics, and punished as disSuch corporeal punishments, inflicted with turbers of the government. all the circumstances of cruelty and infamy, But when the embargo on wit was taken bound down all other gentlemen, under a ser- off, sir Richard Steele and Mr. Addison soon vile fear of the like treatment; so that for se- rescued the stage from the load of impurity it veral no one durst publicly speak or laboured under; with an inimitable address, write in defence of the liberties of the people; they strongly recommended to our imitation which the king's ministers, his privy council, the most amiable, rational, manly characters; and his judges, had trampled under their feet. and this with so much success, that I cannot The spirit of the administration looked hide suppose there is any reader to day conversant ous and dreadful: the hate and resentment in the writings of those gentlemen, that can which the people conceived against it, for a taste with any tolerable relish the comedies of long time lay smothered in their breasts, the once admired Shadwell. Vice was obliged where those passions festered and grew veno- to retire and give place to virtue: this will mous, and at last discharged themselves by an always be the consequence when truth has armed and vindictive hand.
fair play: falsehood only dreads the attack, King Charles II. aimed at the subversion and cries out for auxiliaries: truth never fears of the government; but concealed his designs the encounter: she scorns the aid of the secuunder a deep hypocrisy: a method which his lar arm, and triumphs by her natural strength. predecessor, in the beginning of his reign, But to resume the description of the reign scorned to make use of. The father, who of Charles II. the doctrine of servitude was affected a high and rigid gravity, discounte- chiefly managed by sir Roger Lestrange.nanced all barefaced immorality. The son, of He had great advantages in the argument, a gay, luxurious disposition, openly encouraged being licenser for the press, and might have it: thus their inclinations being different, the carried all before him, without contradiction, restraint laid on some authors, and the encou- if writings on the other side of the question ragement given to others, were managed af- had not been printed by stealth. The authors; ter a different manner.
whenever found, were prosecuted as seditious In this reign a licenser was appointed for libellers; on all these occasions, the king's the stage and the press; no plays were en- counsel, particularly Sawyer and Finch, apcouraged but what had a tendency to debase peared most abjectly obsequious to accomplish the minds of the people. The orignal design the ends of the court. of comedy was perverted; it appeared in all During this blessed management, the king the shocking circumstances of immodest dou- had entered into a secret league with France, ble entendre, obscure description, and lewd to render himself absolute, and enslave his representation. Religion was sneered out of subjects. This fact was discovered to the countenance, and public spirit ridiculed as an world by doctor Jonathan Swift, to whom sir awkward old-fashioned virtue; the fine gen- William Temple had intrusted the publicatleman of the comedy, though embroidered tion of his works. VOL. II. ...31
Sidney, the sworn foe of tyranny, was a This case is a pregnant instance of the dairgentleman of noble family, of sublime under- ger that attends a law for punishing words, standing, and exalted courage. The minis- and of the little security the most valuable try were resolved to remove so great an ob- men have for their lives, in that society where stacle out of the way of their designs. He a judge by remote inferences and distant inwas prosecuted for high treason. The overt nuendoes may construe the most innocent exact charged in the indictment, was a libel pressions into capital crimes. Sidney, the found in his private study. Mr. Finch, the British Brutus ; the warm, the steady friend king's own solicitor-general, urged, with great of liberty; who from a diffusive love to manvehemency, to this effect, “that the imagining kind left them that invaluable legacy, his imthe death of the king is treason, even while mortal discourses on government, was for that imagination remains concealed in the these very discourses, murdered by the hands mind; though the law cannot punish such se- of lawless power. cret treasonable thoughts, till it arrives at the After the revolution of 1688, when law and knowledge of them by some overt act. That justice were again restored, the attainder of the matter of the libel composed by Sidney this great man was reversed by parliament. was an imagining how to compass the death Being in Holland, (says bishop Burnet) of king Charles Il. ; and the writing of it the princess of Orange, afterwards queen was an overt act of the treason; for that to Mary, asked me what had sharpened the king write was to act. (Scribere est agere.") It her father so much against Mr. Jurieu? I told seems that the king's counsel in this reign her he had writ with great indecency of Mary had not received the same direction as queen queen of Scots, which cast reflections on them Elizabeth had given her's; she told them they that were descended from her. The princess were to look upon themselves as retained not said, Jurieu was to support the cause he deso much-(pro domina regina, as pro domi- fended, and to expose those that persecuted it, na veritate) --for the power of the queen as in the best way he could; and if what he said for the power of truth.
of Mary queen of Scots wàs true, he was not Mr. Sidney made a strong and legal de- to be blamed who made that use of it: and fence. He insisted that all the words in the she added, that if princes would do ill things, book, contained no more than general specu- they must expect that the world will take relations on the principles of government, free venge on their memories, since they cannot for any man to write down; especially since reach their persons. That was but a small the same are written in the parliament rolls suffering, far short of what others suffered at and in the statute laws.
their hands." He argued on the injustice of applying by in In the former part of this paper it was ennuendoes, general assertions concerning prin- deavoured to prove by historical facts, the faciples of government, as overt acts, to prove tal dangers that necessarily attend a restraint the writer was compassing the death of the of freedom of speech and the liberty of the king; for then no man could write of things press: upon which the following reflection nadone even by our ancestors, in defence of the turally occurs, viz. that whoever attempts to constitution and freedom of England, without suppress either of these our natural rights, exposing himself to capital danger.
ought to be regarded as an enemy to liberty He denied that scribere est agere, but al- and the constilution. An inconveniency is allowed that writing and publishing is to act, ways to be suffered when it cannot be remov(Scribere et publicare est agere) and therefore ed without introducing a worse. he urged, that as his book had never been pub I proceed in the next place to inquire into lished nor imparted to any person, it could the nature of the English laws, in relation of not be an overt act, within the statutes of libelling. To acquire a just idea of them, the treasons, even admitting that it contained knowledge of history is necessary, and the getreasonable positions; that on the contrary it nius and disposition of the prince is to be conwas a covert fact, locked up in his private stu- sidered in whose time they are introduced dy, as much concealed from the knowledge of and put in practice. any man, as if it where locked up in the au To infuse into the minds of the people an thor's mind. This was the substance of Mr. ill opinion of a just administration, is a crime Sidney's defence : but neither law, nor rea- that deserves no indulgence; but to expose son, nor eloquence, nor innocence ever avail the evil designs or weak management of a ed, where Jefferies sat as judge. Without magistrate is the duty of every member of sotroubling himself with any part of the defence, ciety. Yet king James I. thought it an unhe declared in a rage, that Sidney's known pardonable presumption in the subject to pry principles were a sufficient proof of his inten- into the (arcana imperii,) the secrets of kings. tion to compass the death of the king. He imagined that the people ought to believe
A packed jury therefore found him guilty the authority of the government infallible, and of high treason: great applications were made that their submission should be implicit. It for his pardon. He was executed as a traitor. may therefore be reasonably presumed, that
the judgment of the star-chamber, concern- ed down by that worthy jury, who were on ing libels, was influenced by this monarch's the trial of the seven bishops, prosecuted for a notions of government. No law could be bet- libel, in the reign of James II., the liberties ter framed to prevent people from publishing of Britain, in all human probability, had been their thoughts on the administration, than that lost, and slavery established in the three which makes no distinction, whether a libel kingdoms. be true or false. It is not pretended that any This was a cause of the greatest expectasuch decision is to be found in our books, be- tion and importance that ever came before the fore this reign. That is not at all to be won-judges in Westminster-hall
. dered at; king James was the first of the The bishops had petitioned the king, that British monarchs, that laid claim to a divine he would be graciously pleased not to insist right.
upon their reading in the church his majesty's It was a refined piece of policy in Augus- declaration for liberty of conscience, because tus Cæsar, when he proposed a law to the se- it was founded on a dispensing power, declarnate, whereby invectives against private men ed illegal in parliament; and they said, that were to be punished as treason. The pill they could not in prudence, honour, or conwas finely gilded and easily swallowed; but science, so far make themselves parties to it. the Romans soon found that the preservation In the information exhibited by the attorneyof their characters was only a pretext:-to general, the bishops were charged with writpreserve inviolable the sacred name of Cæsar ing and publishing a false, malicious, and sewas the real design of the law. They quickly ditious libel, (under pretence of a petition) in discovered the intended consequence-if it be diminution of the king's prerogative, and contreason to libel a private person, it cannot be tempt of his government. less than blasphemy to speak ill of the em Sawyer and Finch were among the biperor.
shops' counsel, the former had been attorney, Perhaps it
may not appear a too refined the latter solicitor-general. In these stations conjecture, that the star-chamber acted on the they had served the court only too well. They same views with Augustus, when they gave were turned out because they refused to supthat decision which made it criminal to pub- port the dispensing power. Powis and Willish truth of a private person as well as a ma- liams, who stood in their places, had great gistrate. I am the more inclined to this con- advantages over them, by reflecting on the jecture from a passage in lord chief justice precedents and proceedings, while those were Richardson's speech, which I find in the trial of the king's counsel. 6 What was good in the star-chamber, against Mr. Prynn, who law for Sidney and others, ought to be law was prosecuted there for a libel. If sub- for the bishops ; God forbid that in a court jects have an ill prince,” says the judge, of justice any such distinction should be marry, what is the remedy ? they must pray made.” to God to forgive him : Mr. Prynn saith Williams took very indecent liberties with there were three worthy Romans that con- the prelates, who were obliged to appear in spired to murder Nero. This is most hor- court: he reproached them with acting rerible.”
pugnant to their doctrine of passive obeTremendous wickedness indeed, my lord dience: he reminded them of their preaching chief justice! Where slept the thunder when against himself, and stirring up their clergy these three detestable Romans, unawed by the to libel him in their sermons. For Williams sacred majesty of the diadem, with hands sacri- had been for many years a bold pleader in all legious and accursed, took away the precious causes against the court. He had been speaker life of that imperial wolf, that true epitome of in two successive parliaments, and a zealous the Lord's anointed ;-who had murdered his promoter of the bill of exclusion. Jefferies own mother, who had put to death Seneca and had fined him ten thousand pounds for having Burrhus, his two best friends and benefac- licensed, in the preceding reign, by virtue tors ;—who was drenched in the blood of man- of an order of the house of commons, the kind, and wished and endeavoured to extir- printing of Dangerfield's Narrative, which pate the human race! I think my lord chief charged the duke of York with conspiracies justice has clearly explained the true intent of a black complexion. This gentleman had and meaning of the star-chamber doctrine; no principles, was guided by his own interit centres in the most abjectively passive obe- ests, and so wheeled about to the court. The dience.
king's counsel having produced their eviThe punishment for writing truth, is pillo-dences as to the publication of the petition, ry, loss of ears, branding the face with hot the question then to be debated was, whether irons, fine, and imprisonment, at the discre- it contained libellous matter or not. tion of the court. Nay, the punishment is to It was argued in substance for the bishops, be heightened in proportion to the truth of that the matter could not be libellous because the facts contained in the libel. But if this it was true; sir Robert Sawyer makes use of monstrous doctrine could have been swallow the words false and libellous, as synonymous
terms, through the whole course of his argu- 1 bench in favour of the bishops, when we conment; and so does Mr. Finch: accordingly sider, that the cause, as to Allibone, was bethey proceeded to show by the votes and jour-yond the jurisdiction of the court (coram non nals of the parliament, which were brought judice.) from the tower to the court, that the kings of Here then is a late authority, which sets England, in no age, had any power to dis- aside, destroys, and annuls the doctrine of the pense with or set aside the laws of the land : star-chamber, reported by sir Edward Coke, and consequently, the bishops' petition, which in his case de libellis fumosis. denied that his majesty had any dispensing Agreeable to this late impartial decision, is power, could not be false, nor libellous, nor in the civil law, concerning libels. It is there contempt or diminution of the king's preroga- said, that calumny is criminal only when it is tive, as no such power was ever annexed to it. false, (calumniaria est falsa crimina dicere ;) This was the foundation laid down through and not criminal when it is true, (vera crimina the whole course of the debate, and which dicere,) and therefore a writing, that insinuguided and governed the verdict.
ates a falsehood, and does not directly assert it, It was strongly urged in behalf of the cannot come under the denomination of a libel, king, that the only point to be looked into (Non libellus famosus quoad accusatione quia was, whether the libel be reflecting or scan- non constat directis assertionibus, in quibus dalous, and not whether it be true or false. venit verum aut falsum quod omnino requirit That the bishops had injured and affronted the libellus famosus.) In those cases where the king by presuming to prescribe to him their design to injure does not evidently appear opinions in matters of government; that under the nature of the words, the intention is not pretence of delivering a petition, they come to be presumed, it is incumbent on the plainand tell his majesty, he has commanded an tiff to prove the malice, (animus injuriandi illegal thing; that by such a proceeding, they non præsumitur et incumbit injuriatio cum threw dirt in the king's face, and so were li- probare.) bellers with a witness.
These resolutions of the Roman lawyers Previous to the opinions of the judges, it bear so great a conformity with the sentiments will be necessary to give the reader a short of Powell and Holloway, that it seems they had sketch of their characters; Wright was be- them in view, when they gave their opinions. fore on the bench, and made chief justice, as Sir Robert Sawyer makes several glances at a proper tool to support the dispensing power. them, in his argument; but throwing that Rapin, mentioning this trial, calls Hollo- supposition out of the question, natural equity, way a creature of the court; but that excel- on which the civil law is founded, (the princilent historian was mistaken in this particular; ple of passive obedience always excepted) Powell was a judge of obstinate integrity. His would have directed any impartial man of obstinacy gained him immortal honour. Al- common understanding to the same decision. libone was a professed papist, and had not In civil actions an advocate should never taken the tests, consequently he was no judge, appear but when he is persuaded the merits and his opinion of no authority. Wright, in of the cause lie on the side of his client. In his charge, called the petition a libel, and de- criminal actions it often happens, that the de clared that any thing which disturbs the go- fendant in strict justice deserves punishment; vernment is within the case de libellis famosis yet a counsel may oppose it when a magis (the star-chamber doctrine.) Holloway told trate cannot come at the offender, without the jury, that the end and intention of every making a breach in the barriers of liberty, and action, is to be considered; and that as the opening a flood-gate to arbitrary power. But bishops had no ill intention, in delivering their when the defendant is innocent, and unjustly petition, it could not be deemed malicious or prosecuted, his counsel may, nay ought to take libellous. Powell declared, that falsehood and all advantages, and use every stratagem that malice were two essential qualities of a libel, skill, art, and learning can furnish him with. which the prosecutor is obliged to prove. Al- This last was the case of Zenger, at New libone replied upon Powell, that we are not York, as appears by the printed trial, and the to measure things from any truth they have verdict of the jury. It was a popular cause. in themselves, but from the aspect they have The liberty of the press in that province de on the government; for that every tittle of a pended on it. On such occasions the dry rules libel may be true, and yet be a libel still. of strict pleading are never observed. The
The compass of this paper would not admit counsel for the defendant sometimes argues me to quote the opinion of the judges at length; from the known principles of law; then raises but I have endeavoured, with the strictest re- doubts and difficulties, to confound his antago gard to truth, to give the substance and effect nist; now applies himself to the affections; of them as I read thern.
and chiefly endeavours to raise the passions. It has been generally said, that the judges, Zenger's defence is not to be considered in on this trial, were equally divided in their all those different lights; yet a gentleman of opinions ; but we shall find a majority on the Barbadoes assures us, that it was published as
a solemn argument in the laws, and therefore, ing to unbowel the sense of the following pas. writes a very elaborate confutation of it.
-" The reason of your unreasonableness, I propose to consider some of his objections, which against my reason is wrought, doth só as far as they interfere with the freedom of weaken my reason, as with all reason I do speech and the liberty of the press, contended justly complain.” There are several profound for in this paper.
passages, in the remarks, not a whit inferior This author begun his remarks, by giving this. The dissertation on the negative and us a specimen of Mr. Hamilton's method of affirmative, I once thought to be an exact reasoning. It seems the attorney-general on counterpart of it. the first objected, that a negative could not be Our author labours to prove that a libel, proved ; to which the counsel for Zenger re- whether true or false, is punishable. The plied, that there are many exceptions to that first authority for this purpose, is the case of general rule; and instanced when a man is John de Northampton, adjudged in the reign charged with killing another; if he be inno- of Edward III. Northampton had wrote a cent, he may prove the man said to be killed, libellous letter to one of the king's council, to be still alive. The remarker will not allow purporting that the judges would do no great this to be a good proof of the negative, for, thing, at the commandment of the king, &c., says he, this is no more than one instance the said John was called, and the court proof one affirmative, being destroyed by another nounced judgment against him on those that infers a negative of the first." It cost grounds, that the letter contained no truth in me some time to find out the meaning of this it, and might incense the king against his superlative nonsense; and I think I have at judges. Mr. Hamilton says, that by this last discovered it. What he understands by judgment it appears, the libellous words were the first affirmative, is the instance of the man's utterly false, and that the falsehood was the being charged with killing another; the se- crime, and is the ground of the judgment. cond affirmative, is the man's being alive; The remarker rejects this explanation, and which certainly infers, that the man was not gives us an ingenious comment of his own. killed : which is undoubtedly a negative of First, he says, there is neither truth nor falsethe first. But the remarker of Barbadoes, hood in the words, at the time they were blunders strangely. Mr. Hamilton's words wrote. Secondly, that they were the same as are clear. He says, the party accused is on if John had said the roof of Westminster-hall the negative, viz. that he did not kill ; which would fall on the judges. Thirdly, that the he may prove by an affirmative, viz. that the words taken by themselves have no ill meanman said to be killed, is still alive.
ing. Fourthly, that the judges ought to do Again, “ at which rate,” continues our Barba- their duty, without any respect to the king's does author,“ most negatives may be proved." commandment (they are sworn so to do.) There indeed the gentleman happened to stum- Fifthly, he asks where then was the offence? ble right; for every negative, capable of proof, he answers, sixthly, the record shows it. can only be proved after the same manner, Seventhly, he says that the author of the letter namely by an affirmative. “ But then," he was an attorney of the court, and by the conadds, that a man will be put upon proving, tents thereof, (meaning the contents of the he did not kill, because such proof may be had letter not the contents of the court) he presometimes, and so the old rule will be discard- sumes to undertake for the behaviour of the ed.” This is clearly a non sequitur, (not an judges. Eighthly, that the letter was addressargument ;) for though a man may prove a ed to a person of the king's council. Ninthly, negative, if he finds it for his advantage, it that he might possibly communicate it to the does by no means follow that he shall be king. Tenthly, that it might naturally inobliged to do it, and so that old rule will be cense the king against the court. Eleventhly, preserved.
that great things were done in those days by After such notable instances of a blunder the king's commandment, for the judges held ing unlogical head, we are not to be surprised their post at will and pleasure. Twelfthly, at the many absurdities and contradictions of that it was therefore proper for the judges to this author, which occur in the sequel of his assert, that the letter contained no truth, in No-argument.
order to acquit themselves to the king. ThirBut I shall only cite those passages where teenthly, that the judges asserted a falsehood, there is a probability of guessing at his mean- only to acquit themselves to his majesty, being, for he has so preposterously jumbled toge- cause what they asserted was no grounds of ther this little stock of ideas, that even after their judgment. Fourteenthly and lastly, the the greatest efforts, I could find but very little commentator avers (with much modesty) that sense or coherence in them. I should not all this senseless stuff, is a plain and natural however, have discontinued my labour, had I construction of the case; but he would not not been apprehensive of the fate of poor Don have us take it wholly on his own word, and Quixotte, who ran distracted by endeavour- undertakes to show that the case was so un