Abbildungen der Seite

trial were equally divided in their opinions; but we shall find a majority on the bench in favor of the bishops, when we consider, that the cause, as to Allibone, was beyond the jurisdiction of the court (coram non judice.)

Here, then, is a late authority, which sets aside, destroys, and annuls the doctrine of the Star-chamber, reported by Sir Edward Coke, in his case de libellis famosis.

Agreeable to this late impartial decision is the civil law concerning libels. It is there said, that the calumny is criminal only when it is false, Calumniari est falsa crimina dicere; and not criminal when it is true, (vera crimina dicere ;) and therefore a writing, that insinuates a falsehood, and does not directly assert it, cannot come under the denomination of a libel, (JYbn Melius famosus quoad accusationem, quia non constat directis assertionibus, in quibus venit verum aut falsum, quod omnino requirit libellus famosus.) In those cases where the design to injure does not evidently appear from the nature of the words, the intention is not to be presumed; it is incumbent on the plaintiff to prove the malice; (Jlnimus injuriandi non preesumitur, et incumbit injuriato eum probare.)

These resolutions of the Roman lawyers bear so great a conformity with the sentiments of Powell and Holloway, that it seems they had them in view, when they gave their opinions. Sir Robert Sawyer makes several glances at them in his argument; but, throwing that supposition out of the question, natural equity, on which the civil law is founded, (the principle of passive obedience always excepted,) would have directed any impartial man of common understanding to the same decision.

In civil actions, an advocate should never appear but when he is persuaded the merits of the cause lie on

VOL. II. z

[ocr errors][merged small]

the side of his client . In criminal actions, it often happens that the defendant in strict justice deserves punishment; yet a counsel mar oppose it when a magistrate cannot come at the offender, without making a breach in the barriers of liberty, and opening a flood-gate to arbitrary power. But, when the defendant is innocent, and unjustly prosecuted, his counsel may, nay ought to take all advantages, and use every stratagem, that skill, art, and learning can furnish him with. This last was the case of Zenger, at New York, as appears by the printed trial and the verdict of the jury. It was a popular cause. The liberty of the press in that province depended on it . On such occasions the dry rules of strict pleading are never observed. The counsel for the defendant sometimes argues from the known principles of law; then raises doubts and difficulties, to confound his antagonist; now applies himself to the affections; and chiefly endeavours to raise the passions. Zenger's defence is not to be considered in all those different lights; yet a gentleman of Barbadoes assures us, that it was published as a solemn argument in the Laws, and therefore writes a very elaborate confutation of it.

I propose to consider some of his objections, as far as they interfere with the freedom of speech and the liberty of the press, contended for in this paper.

This author begun his remarks by giving us a specimen of Mr. Hamilton's method of reasoning. It seems the attorney-general on the first objected, that a negative could not be proved; to which the counsel for Zenger replied, that there are many exceptions to that general rule; and instanced when a man is charged with killing another; if he be innocent, he may prove the man, said to be killed, to be still alive. The remarker will not allow this to be a good proof of the negative, for, says he, "This is no more than one instance of one affirmative being destroyed by another, that infers a negative of the first." It cost me some time to find out the meaning of this superlative nonsense; and I think I have at last discovered it. What he understands by the first affirmative, is the instance of the man's being charged with killing another; the second affirmative is the man's being alive; which certainly infers, that the man was not killed; which is undoubtedly a negative of the first. But the remarker of Barbadoes blunders strangely. Mr. Hamilton's words are clear. He says, the party accused is on the negative, viz. that he did not kill; which he may prove by an affirmative, viz. that the man said to be killed is still alive.

Again. "At which rate," continues our Barbadoes author, "most negatives may be proved." There indeed the gentleman happened to stumble right; for every negative capable of proof can only be proved after the same manner, namely, by an affirmative. "But then," he adds, "a man will be put upon proving he did not kill, because such proof may be had sometimes, and so the old rule will be discarded." This is clearly a non seqvitur (not an argument); for, though a man may prove a negative, if he finds it for his advantage, it does by no means follow that he shall be obliged to do it, and so that old rule will be preserved.

After such notable instances of a blundering, unlogical head, we are not to be surprised at the many absurdities and contradictions of this author, which occur in the sequel of his no-argument.

But I shall only cite those passages where there is a probability of guessing at his meaning; for he has so preposterously jumbled together his little stock of ideas, that, even after the greatest efforts, I could find but very little sense or coherence in them. I should not, however, have discontinued my labor, had I not been apprehensive of the fate of poor Don Quixote, who ran distracted by endeavouring to unbowel the sense of the following passage; "The reason of your unreasonableness, which against my reason is wrought, doth so weaken my reason, as with all reason I do justly complain." There are several profound passages in the remarks, not a whit inferior to this. This dissertation on the negative and affirmative, I once thought to be an exact counterpart of it.

Our author labors to prove that a libel, whether true or false, is punishable. The first authority for this purpose is the case of John de Northampton, adjudged in the reign of Edward the Third. Northampton had wrote a libellous letter to one of the king's council, purporting that the judges would do no great things at the commandment of the king, &c.; the said John was called, and the court pronounced judgment against him on these grounds, that the letter. contained no truth in it, and might incense the king against his judges. Mr. Hamilton says, that by this judgment it appears the libellous words were utterly false, and that the falsehood was the crime, and is the ground of the judgment. The remarker rejects this explanation, and gives us an ingenious comment of his own. First, he says, there is neither truth nor falsehood in the words, at the time they were wrote. Secondly, that they were the same as if Jphn had said the roof of Westminster-hall would fall on the judges. Thirdly, that the words taken by themselves have no ill meaning. Fourthly, that the judges ought to do their duty, without any respect to the king's commandment (they are sworn so to do). Fifthly, he asks, Where then was the offence? He answers, sixthly, The record shows it . Seventhly, he says that the author of the letter was an attorney of the court, and, by the contents thereof, (meaning the contents of the letter, not the contents of the court,) he presumes to undertake for the behaviour of the judges. Eighthly, that the letter was addressed to a person of the king's council. Ninthly, that he might possibly communicate it to the king. Tenthly, that it might naturally incense the king against the court . Eleventhly, that great things were done in those days by the king's commandment , for the judges held their post at will and pleasure. Twelfthly, that it was therefore proper for the judges to assert, that the letter contained no truth, in order to acquit themselves to the king. Thirteenthly, that the judges asserted a falsehood, only to acquit themselves to his Majesty, because what they asserted was no ground of their judgment . Fourteenthly, and lastly, the commentator avers {with much modesty) that all this senseless stuff is a plain and natural construction of the case; but he would not have us take it wholly on his own word, and undertakes to show that the case was so understood by Noy, in whose mouth our author puts just such becoming nonsense as he entertained us with from himself.

It requires no great penetration to make this discussion in question appear reasonable and intelligible. But it ought first to be observed that Edward the Third was one of the best and wisest , as well as the bravest of our kings, and that the law had never a freer course than under his reign. Where the letter mentions, that the judges would do no great things (that is, illegal things) by the king's commandment , it was plainly insinuated, that the judges suspected that the king might command them to do illegal things. Now, by the means of that letter, the king being led to imagine that the judges

Vol. ii. 39 z*

« ZurückWeiter »