a solemn argument in the laws, and therefore ing to unbowel the sense of the following pas. 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. sage "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. The dissertation on the negative and affirmative, I once thought to be an exact counterpart of it. Our author labours 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 III. Northampton had wrote a libellous letter to one of the king's council, purporting that the judges would do no great thing, at the commandment of the king, &c., the said John was called, and the court pronounced judgment against him on those 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 John 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 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 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 this 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 labour, had I not been apprehensive of the fate of poor Don Quixotte, who ran distracted by endeavour judges. Eighthly, that the letter was address ed 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 grounds 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 un derstood by Noy, in whose mouth our author | put the whole upon that single point, whether 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 III. 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 (i. e. 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 harboured a suspicion so unworthy of him, might be justly incensed against them: therefore the record truly says, that the letter was utterly false, and that there was couched under it, an insinuation (certainly malicious) that might raise an indignation in this king against the court, &c., since it evidently appears, that not only the falsehood, but also the malice was the ground of the judgment. I agree with the remarker, that Noy, citing this case, says that the letter contained no ill, yet the writer was punished; but these words are absolutely as they stand in the remarks attached from the context. Noy adduces Northampton's case, to prove that a man is punishable for contemplating without a cause, though the words of the complaint (simply considered) should contain no ill in them, it is not natural to inquire whether the application be just it is only an expression of a counsel at the bar. The case was adjourned, and we hear no more of it. Yet these words of Noy, the remarker, would pass on the reader as a good authority. "This book, therefore," quoth he, referring to Godbolt's reports, "follows the record of Northampton's case, and says, that because it might incense the king against the judges he was punished;" which is almost a translation of Prætextu cujus, &c. I could readily pardon our author's gibberish, and want of apprehension, but cannot so easily digest his insincerity. The remarker in the next place proceeds to the trial of the seven bishops; I shall quote his own words, though I know they are so senseless and insipid, that I run the risk of trespassing on the reader's patience; however here they be," Mr. Justice Powell also does say, that to make it a libel, it must be false, it must be malicious, and it must tend to sedition." Upon which words of this learned and worthy judge, I would not presume to offer any comment, except that which other words of his own afford, that plainly show in what sense he then spoke. His subsequent words are these "the bishops tell his majesty, it is not out of averseness," &c. So that the judge it be true that the king had a dispensing power or not; which is a question of law, and not of fact, and accordingly the judge appeals to his own reading in the law, not to witnesses or other testimonies for a decision of it." Now the bishops had asserted in the libel they were charged with, that the dispensing power, claimed by the king in his declaration, was illegal. The remarker, by granting that the prelates might prove part of their assertion, viz. that the dispensing power was illegal, which is a question of law, necessarily allows them to prove the other part of their assertion, viz. That his majesty had claimed such a power, which is a question of fact; for the former could not be decided without proving or admitting the latter, and so in all other cases, where a man publishes of a magistrate, that he has acted, or commanded an illegal thing, if the defendant shall be admitted to prove the mode or illegality of the thing, it is evidently implied that he may prove the thing itself; so that on the gentleman's own premises, it is a clear consequence that a man prosecuted for a libel, shall be admitted to give the truth in evidence. The remarker has a method of reasoning peculiar to himself; he frequently advances arguments, which directly prove the very point he is labouring to confute. But in truth, judge Powell's words would not have given the least colour to such a ridiculous distinction, if they had been fairly quoted. He affirms with the strongest emphasis, that to make it a libel, it must be false, it must be malicious, and it must tend to sedition. (Let it be observed that these three qualities of a libel against the government are in the conjunctive) his subsequent words are these, "as to the falsehood, I see nothing that is offered by the king's counsel; nor any thing as to the malice." Here the judge puts the proof both of the falsehood and malice on the persecutor; and though the falsehood in this case was a question of law, it will not be denied, but that the malice was a question of fact. Now shall we attribute this omission to the inadvertency of the remarker? No, that cannot be supposed; for the sentence immediately followed. But they were nailing decisive words, which if they were fairly quoted, had put an end to the dispute, and left the remarker without the least room for evasion; and therefore he very honestly dropped them. Our author says it is necessary to consult Bracton, in order to fix our idea of a libel. Now Bracton, throughout his five books de legibus, et consuetudinibus angliæ, only once happens to mention libels, very perfunctorily. He says, no more than, that a man may receive an injury by a lampoon and things of that nature. Fit injuria cum de eo factum carmen famosum et heujusmodi. Pray how is any person's idea of a libel the better fixt | lawyer is not supposed to be acquainted with by this description of it? Our author very sa- military terms; but is it not highly ridiculous, gaciously observes, on these words of Brac- that the gentleman will not allow a squib to ton, that the falsity of a libel is neither ex- be fired from the bulwark of liberty, yet freepressed nor implied by them. That it is not ly gives permission to erect on it a battery of expressed is self-evident; but that it is not cannon. implied, we have only the remarker's ipse dixit for it. But it was really idle and impertinent to draw this ancient lawyer into the dispute, as nothing could be learned from him, only that a libel is an injury, which every body will readily grant. I have good ground to suspect, that our author did not consult Bracton on this occasion; the passage cited in the remarks, is literally transcribed from Coke's ninth report, folio 60; by which an unlearned reader might be easily led to believe, that our author was well skilled in ancient learning: ridiculous affectation and pedantry this. To follow the remarker through all his incoherencies and absurdities, would be irksome; and indeed nothing is more vexatious than to be obliged to refute lies and nonsense. Besides, a writer who is convicted of imposing wilful falsehoods on the reader, ought to be regarded with abhorrence and contempt. It is for this reason I have treated him with an acrimony of style, which nothing but his malice and want of sincerity, and not his ignorance, his dullness, or vanity, could have justified: however, as to the precedents and proceedings against libelling, before the case of the seven bishops, he ought to be left undisturbed in the full enjoyment of the honour he has justly acquired by transcribing them from common-place books, and publishing them in gazettes. Pretty speculations these to be inserted in newspapers, especially when they come clothed and loaded under the jargon and tackle of the law. I am sure that by this time the reader must be heartily tired with the little I have offered on the subject, though I have endeavoured to speak so as to be understood; yet it in some measure appeared necessary to expose the folly and ignorance of this author, inasmuch as he seemed to be cherished by some pernicious insects of the profession, who neglecting the noblest parts feed on the rotten branches of the law. Upon the whole, to suppress inquiries into the administration is good policy in an arbitrary government; but a free constitution and freedom of speech, have such a reciprocal dependence on each other, that they cannot subsist without consisting together. On Government.-From the Pennsylvania Gazette, April 1, 1736. GOVERNMENT is aptly compared to architecture; if the superstructure is too heavy for the foundation, the building totters, though assisted by outward props of art. But leaving it to every body to mould the similitude according to his particular fancy, I shall only observe, that the people have made the most considerable part of the legislature in every free state; which has been more or less so, in proportion to the share they have had in the administration of affairs. The English constitution is fixt on the strongest basis, we choose whomsoever we please for our representatives, and thus we have all the advantages of a democracy, without any of its inconveniences. Popular governments have not been framed without the wisest reasons. It seemed highly fitting, that the conduct of magistrates created by and for the good of the whole should be made liable to the inspection and animadversion of the whole. Besides, there could not be a more potent counterpoise to the designs of ambitious men, than a multitude that hated and feared ambition. Moreover the power they possessed though great coilectively, yet being distributed among a vast number, the share of each individual was too inconsiderable to lay him under any temptations of turning it to a wrong use. Again, a body of people thus circumstanced, cannot be supposed to judge amiss on any essential points; for if they decide in favour of themselves, which is extremely natural, their decision is just, inasmuch as whatever contributes to their benefit is a general benefit, and adBesides, the liberty of the press would be vances the real public good. Hence we have wholly abolished, if the remarker could have an easy solution of the sophism, so often propropagated the doctrine of punishing truth.-posed by the abettors of tyranny, who tell us, Yet he declares he would not be thought to that when differences arise between a prince derogate from that noble privilege of a free peo- and his subjects, the latter are incapable of ple. How does he reconcile those contradic-being judges of the controversy, for that tions? why truly thus: he says, that the li- would be setting up judge and party in the berty of the press is a bulwark and two-edged same person. weapon, capable of cutting two ways, and is only to be trusted in the hands of men of wit and address, and not with such fools as rail without art. I pass over the blunder of his calling a bulwark a two-edged weapon, for a Some foreigners, have had a truer idea of our constitution. We read in the memoirs of the late archbishop of Cambray, Fenelon, the celebrated author of Telemachus, a conversation which he had with the pretender, (son of James II. of England.) "If ever you come to the crown of England," says the bishop, "you will be a happy prince; with an unlimited power to do good, and only restrained from doing evil." A blunt Briton, perhaps, would have said in plain English, "You'll be at liberty to do as much good as you please, but by G- you shall do us no hurt." The bishop sweetened the pill; for such it would appear in its simple form, to a mind fraught with notions of arbitrary power, and educated among a people, who, with the utmost simplicity, boast of their slavery. What can be more ridiculous than to hear them frequently object to the English gentlemen that travel in their country.* What is your king? Commend me to our grand monarch, who can do whatever he pleases. But begging pardon of these facetious gentlemen, whom it is not my intention to disturb in their many notions of government, I shall go on to examine what were the sentiments of the ancient Romans on this head. We find that their dictator, a magistrate never created but in cases of great extremity, vested with power as absolute during his office (which never exceeded six months) as the greatest kings were never possessed of; this great ruler was liable to be called to an account by any of the tribunes of the people, whose persons were at the same time rendered sacred, by the most solemn laws. This is evident proof, that the Romans were of opinion, that the people could not in any sense divest themselves of the supreme authority, by conferring the most extensive power they possibly could imagine, on one or more persons acting as magistrates. This appears still more evident, in remarking that the people sat as umpire of the differences which had arisen between the dictator and senate, in the case of young Fabius. The great deference which Cicero paid to the judgment of the Roman people, appears by those inimitable orations, of which they were the sole judges and auditors. That great orator had a just opinion of their understanding. Nothing gave him a more sensible pleasure than their approbation. But the Roman populace was more learned than oursmore virtuous perhaps; but their sense of discernment was not better than ours. How ever, the judgment of a whole people, especially of a free people, is looked upon to be infallible, so that it is become a common proverb, that the voice of God is the voice of the people-Vox Dei est populi vox. And this is universally true, while they remain in their *Qu'est ce qui votre roi ? parles moi de notre grand monarque, morblieu! qui peut faire tout ce qu'il veut. Si antiquus duimus plebi Romanæ esset, (says one of the tribunes.) Se audacter laturum de abrogando. Q. Fabii, Dictatoris Imperio, T. Liv. lib. 22. chap. 25. Tribunes plebis appello, (says an illustrious senator to the dictator) provoco ad populum, eumque tibi fugienti senatus judicium, judicem fero. lib 8. chap. 33. proper sphere, unbiassed by faction, undeluded by the tricks of designing men. Thank God! we are in the full enjoyment of all these privileges. But can we be taught to prize them too much? or how can we prize them equal to their value, if we do not know their intrinsic worth, and that they are not a gift bestowed upon us by other men, but a right that belongs to us by the laws of God and nature? Since they are our right, let us be vigilant to preserve them uninfringed, and free from encroachments; if animosities arise, and that we should be obliged to resort to party; let each of us range himself on the side which unfurls the ensigns of public good. Faction will then vanish, which if not timely suppressed, may overturn the balance, the palladium of liberty, and crush us under its ruins. The design of this paper, is to assert the common rights of mankind, by endeavouring to illustrate eternal truths, that cannot be shaken even with the foundations of the world. I may take another opportunity to show, how a government founded on these principles rises into the most beautiful structure, with all the graces of symmetry and proportion, as much different from that raised on arbitrary power, as Roman architecture from a gothic building. On Government.-From the Pennsylvania Gazette, April 8, 1736. AN ancient sage of the law,* says,-the king can do no wrong; for if he doeth wrong he is not the king. And in another place,when the king doth justice he is God's vicar, but when he doth unjustly he is the agent of the devil. The politeness of the latter times, has given a softer turn to the expression. It is now said, the king can do no wrong, but his ministers may. In allusion to this the parliament of 1741, declared they made war against the king for the king's service. But his majesty affirmed that such a distinction was absurd, though by the way his own creed contained a greater absurdity, for he believed he had an authority from God to oppress the subjects, whom by the same authority he was obliged to cherish and defend. Aristotle calls all princes tyrants, from the moment they set up an interest different from that of their subjects; and this is the only definition he gives us of tyranny. Our own countryman, before cited, and the sagacious Greek, both agree on this point, that a governor who acts contrary to the ends of government, loses the title bestowed on him at his institution. It would * Bracton de leg. Angl. An author of great weight, contemporary with Henry III. Rex non facit injuriam, qui si facit injuriam, non est rex. 1 Dum facit justitiam vicarius est regis æterni minister autere diaboli dum declinet ad injuriam. On Paper Money. per money.* be highly improper to give the same name to things of different qualities, or that produce Remarks and Facts relative to the American Padifferent effects; matter, while it communicates heat, is generally called fire, but when the flames are extinguished, the appellation is changed. Sometimes indeed the same sound serves to express things of a contrary nature; but that only denotes a defect, or poverty in the language. A wicked prince imagines that the crown receives a new lustre from absolute power, whereas every step he takes to obtain it, is a forfeiture of the crown. His conduct is as foolish as it is detestable; he aims at glory and power, and treads the path that leads to dishonour and contempt; he is a plague to his country, and deceives himself. In the Report of the board of trade, dated February 9, 1764, the following reasons are given for restraining the emission of paperbills of credit in America, as a legal tender. 1. "That it carries the gold and silver out of the province, and so ruins the country; as experience has shown, in every colony where it has been practised in any great degree. 2. "That the merchants trading to America have suffered and lost by it. 3. "That the restriction of it has had a beneficial effect in New England. 4. "That every medium of trade should have an intrinsic value, which paper-money has not. Gold and silver are therefore the fittest for this medium, as they are an equivalent; which paper never can be. 5. "That debtors in the assemblies make paper-money with fraudulent views. 6. "That in the middle colonies, where the credit of the paper-money has been best supported, the bills have never kept to their nominal value in circulation; but have constantly depreciated to a certain degree, whenever the quantity has been increased." To consider these reasons in their order; the first is, During the inglorious reigns of the Stuarts (except a part of queen Anne's) it was a perpetual struggle between them and the people; those endeavouring to subvert, and these bravely opposing the subverters of liberty. What were the consequences? One lost his life on a scaffold, another was banished. The memory of all of them stinks in the nostrils of every true lover of his country; and their history stains with indelible blots the English annals. The reign of queen Elizabeth furnishes a beautiful contrast. All her views centred in one object, which was the public good. She made it her study to gain the love of her sub- 1." That paper-money carries the gold and jects, not by flattery or little soothing arts, silver out of the province, and so ruins the but by rendering them substantial favours. country; as experience has shown, in every It was far from her policy to encroach on their colony where it has been practised in any privileges; she augmented and secured them.great degree."-The opinion, of its ruining And it is remarked to her eternal honour, that the acts presented to her for her royal approbation (forty or fifty of a session of parliament) were signed without any examining farther than the titles. This wise and good queen only reigned for her people, and knew that it was absurd to imagine they would promote any thing contrary to their own interests, which she so studiously endeavoured to advance. On the other hand, when this queen asked money of the parliament, they frequently gave her more than she demanded, and never inquired how it was disposed of, except for form sake, being fully convinced she would not employ it but for the general welfare. Happy princess, happy people! what harmony, what mutual confidence! Seconded by the hearts and purses of her subjects, she crushed the exorbitant power of Spain, which threatened destruction to England, and chains to all Europe. That monarchy has ever since pined under the stroke, so that now when we send a man of war or two to the West Indies, it puts her into such a panic fright, that if the galleons can steal home, she sings Te Deum as for a victory. This is a true picture of government, its reverse is tyranny. VOL. II.... 3 K the country, seems to be merely speculative, or not otherwise founded than upon misinformation in the matter of fact. The truth is, that the balance of their trade with Britain being greatly against them, the gold and silver are drawn out to pay that balance; and then the necessity of some medium of trade has induced the making of paper-money, which could not be carried away. Thus, if carrying out all the gold and silver ruins a country, every colony was ruined before it made papermoney.-But, far from being ruined by it, the *The occasion of the Report, to which this paper is a reply, was as follows. During the war there had been a considerable and an unusal trade to America, in consequence of the great fleets and armies on foot there, and the clandestine dealings with the enemy, who were cut off from their own supplies. This made great debts. The briskness of the trade ceasing with the war, the merchants were anxious for payment, which occasioned some confusion in the colonies, and stirred up a cla mour in England against paper-money. The board of trade, of which lord Hillsborough was the chief, joined in this opposition to paper-money, as appears by the report. Dr. Franklin being asked to draw up an answer to the report, wrote the paper given here; adapted to the then condition of the colonies; in relation to which tain no more is said than what is accordant with unithe principles are sound; but in relation to Great Bri versal experience. When paper was over-issued in lieu of money, bankruptcies followed, and the British credi tors suffered accordingly; as they have since suffered through similar causes. |