+ whether he would fay they were true? And as he never pretended, that they were true, the chief-justice was not to say fo. But the point will still be clearer on our fide from Fuller's cafe, for falfly and wickedly caufing to be printed a false and fcandalous libel, in which (amongst other things) were contained thefe words: "Mr. Jones has alfo made oath, That he paid 5000l. more by the late king's order, to several perfons in places of truft, that they might complete my ruin, and invalidate me for ever. Nor is this all; for the faid Mr. Jones will prove, by undeniable witness and demonftration, that he has diftributed more than 180,000 1. in eight years laft paft, by the French king's order, to perfons in public truft in this kingdom." Here you fee is a fcandalous and infamous charge against the late king; here is a charge, no less than high-treafon, against the men in public truft, for receiving money of the French king, then in actual war with the crown of GreatBritain; and yet the court were far from bearing him down with Star-chamber doctrine; to wit, That it was no matter, whether what he faid was true or falfe: no; on the contrary, lord-chief-juftice Holt afks Fuller, "Can you make it appear they are true? Have you any witneffes? You might have had fubpoenas for your witnesses againft this day. If you take upon you to write fuch things as you are charged with, it lies upon you to prove them true, at your peril. If you have any witneffes, I will hear them. How came you to write those books which are not true? If you have any witnesses, produce them. If you can offer any matter to prove what you have wrote, let us hear it." Thus faid, and thus did, that great man lord chief-juftice Holt, upon a trial of the like kind with ours; and the rule laid down by him in this cafe is, "That he who will take upon him to write things, it lies upon him to prove them at his peril." Now, Sir, we have acknowledged the printing and publishing of those papers, fet forth in the information, and (with the leave of the court) agreeable to the rule laid down by chief-juftice Holt, we are ready to prove them to be true, at our peril.

Mr. Ch. Juftice. Let us fee the book.

[Here the court had the cafe under confideration a confiderable time, and every one was filent.]

Mr. Ch. Juftice. Mr. Attorney, you have heard what Mr. Hamilton has faid, and the cafes he has cited, for having his witneffes examined, to prove the truth of the feveral facts con

State Trials, vol. v. 445.

tained in the papers fet forth in the information. What do you fay to it?

Mr. Attorney. The law, in my opinion, is very clear; they cannot be admitted to justify a libel; for, by the authorities I have already read to the court, it is not the less a libel because it is true. I think I need not trouble the court with reading the cafes over again: the thing feems to be very plain, and I fubmit it to the court.

Mr. Ch. Juftice. Mr. Hamilton, the court is of opinion, you ought not to be permitted to prove the facts in the papers: thefe are the words of the book, "It is far from being a justification of a libel, that the contents thereof is true, or that the perfon upon whom it is made had a bad reputation, fince the greater appearance there is of truth in any malicious invective, fo much the more provoking it is.'

Mr. Hamilton. These are Star-chamber cafes, and I was in hopes, that practice had been dead with the court.

Mr. Ch. Juftice. Mr. Hamilton, the court have delivered their opinion, and we expect you will ufe us with good manners; you are not to be permitted to argue against the opinion of the court.

Mr. Hamilton. With fubmiffion, I have feen the practice in very great courts, and never heard it deemed unmannerly to

Mr. Ch. Juftice. After the court have declared their opinion, it is not good manners to infift upon a point, in which you are over-ruled.

Mr. Hamilton. I will fay no more at this time; the court I fee is against us in this point; and that I hope I may be allowed to fay.

Mr. Ch. Juftice. Ufe the court with good manners, and fhall be allowed all the liberty you can reasonably defire.

you

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 feem ftrange, that I apply myself to you in this manner; I am warranted fo to do both by law and reafon. The law fuppofes you to be fummoned, 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 fay, the papers referred to in the information, and which we acknowledge we printed and publifhed, are falfe, fcandalous, and feditious; but of this I ca

have no apprehenfion. You are citizens of New-York; you are really what the law supposes you to be, honeft 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 juftice lies our safety. And as we are denied the liberty of giving evidence, to prove the truth of what we have publifhed, I will beg leave to lay it down as a standing rule in fuch cafes, That the fuppreffing of evidence ought always to be taken for the strongest evidence: and I hope it will have that weight with you. But fince we are not admitted to examine our witneffes, I will endeavour to fhorten the difpute with Mr. Attorney, and to that end, I de fire he would favour 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 fay † it is, In a ftrict sense, taken for a malicious defamation, expreffed either in writing or printing, and tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and to expofe him to public hatred, contempt, or ridicule. §. 2. But it is faid, That in a larger fenfe the notion of a libel may be applied to any defamation whatsoever, expreffed either by figns or pictures; as by fixing up a gallows againft a man's door, or by painting him in a fhameful and ignominious manner. $3. And fince the chief caufe for which the law fo feverely punishes all offences of this nature, is the direct tendency of them to a breach of public peace, by provoking the parties injured, their friends and families, to acts of revenge, which it would be impoffible to restrain by the fevereft laws, were there no redress from public juftice for injuries of this kind, which of all others are moft fenfibly felt; and fince the plain meaning of fuch fcandal, as is expreffed by figns or pictures, is as obvious to common fenfe, and as eafily understood by every common capacity, and altogether as provoking as that which is expreffed by writing or printing, why fhould it not be equally criminal? S. 4. And from the fame ground it feemeth alfo clearly to follow, That fuch scandal as is expreffed in a scoffing and ironical manner, makes a writing as properly a libel, as that which is expreffed in di rect terms; as where a writing, in a taunting manner reckoning up feveral acts of public charity done by one, fays, You will not play the Jew, nor the hypocrite, and fo goes on in a strain of ridicule to infinuate, that what he did was owing to his

+ Hawk, chap. 73. §. 1. & feq.

vain-glory; or where a writing, pretending to recommend to one the characters of feveral great men for his imitation, instead of taking notice of what they are generally esteemed famous for, pitched on fuch qualities only which their enemies charge them with the want of, as by propofing such a one to be imitated for his courage, who is known to be a great statesman, but no foldier; and another to be imitated for his learning, who is known to be a great general, but no scholar, &c. 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 exprefly done fo.

Mr. Hamilton. Ay, Mr. Attorney; but what certain ftandard-rule have the books laid down, by which we can certainly know, whether the words or the figns are malicious? Whether they are defamatory? Whether they tend to the breach of the peace; and are a fufficient ground to provoke a man, his family, or friends, to acts of revenge, especially thofe of the ironical fort of words? And what rule have you to know when I write ironically? I think it would be hard, when I fay, fuch a man is a very worthy, honeft gentleman, and of fine understanding, that therefore I meant he was a knave or a fool.

Mr. Attorney. I think the books are very full; it is faid, in 1 Hawk. p. 193, juft now read, "That such scandal as is expreffed in a fcoffing and ironical manner, makes a writing as properly a libel, as that which is expreffed in direct terms; as where a writing, in a taunting manner fays, reckoning up feveral acts of charity done by one, fays, You will not play the Jew or the hypocrite; and fo goes on to infinuate, that what he did was owing to his vain-glory, &c. Which kind of writing is as well understood to mean only to upbraid the parties with the want of thefe qualities, as if it had directly and exprefly done fo." 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 fcruple to allow (when we are agreed that the words are false and fcandalous, and were spoken in an ironical and fcoffing manner, &c.) that they are really libellous; but here ftill occurs the uncertainty, which makes the difficulty to know, what words are fcandalous, and what not; for you fay, they may be fcandalous, true or falfe: befides, how fhall we know whether the words were spoke in a fcoffing and ironical manner, or feriously? 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 confequently no libel. But, under favour, Mr. Attorney, I think the fame book, and the fame fection, will E

fhew

fhew us the only rule by which all these things are to be known. The words are thefe; "Which kind of writing is as well understood to mean only to upbraid the parties with the want of thefe qualities, as if they had directly and exprefly done fo." Here it is plain, the words are fcandalous, fcoffing, 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. Ch. Juftice. Mr. Hamilton, do you think it fo hard to know when words are ironical, or fpoke in a fcoffing

manner.

Mr. Hamilton. I own it may be known; but I infit, the only rule to know is, as I do or can understand them; I have no other rule to go by, but as I understand them.

Mr. Ch. Juftice. That is certain. All words are libellous or not, as they are understood. Those who are to judge of the words, muft judge whether they are fcandalous or ironical, tend to the breach of the peace, or are feditious: there can be no doubt of it.

Mr. Hamilton. I thank your honour; I am glad to find the court of this opinion. Then it follows that those twelve men must understand the words in the information to be fcandalous, that is to fay, falfe; for I think it is not pretended they are of the ironical fort; and when they understand the words to be fo, they will fay we are guilty of publishing a falfe libel, and not otherwife.

know

Mr. Ch. Juftice. No, Mr. Hamilton; the jury may find that Zenger printed and published thofe papers, and leave it to the court to judge whether they are libellous. ; you 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 honour, the jury may do fo; but I do likewife know, they may do otherwife. I know they have a right beyond all difpute, to determine both the law and the fact, and where they do not doubt of the law, they ought to do fo. This of leaving it to the judgment of the court, whether the words are libellous or not, in effect renders juries ufelets (to fay no worfe) in many cafes; but this I fhall have occafion to fpeak to by-and-by; and I will, with the court's leave, proceed to examine the inconve niences that muft inevitably arife from the doctrines Mr. Attorney has laid down; and I obferve, in fupport of this pro fecution, he has frequently repeated the words taken from the cafe of Libel, Famofus, in 5 Co. This is indeed the leading cafe, and to which almost all the other cafes upon the fubject of libels

do