but a dangerous one in the cafe of a judge.) To fay more to this point may not be proper. And yet I cannot think it unwarrantable, to fhew the unhappy influence that a fovereign has fometimes had, not only upon judges, but even upon parliaments themselves.

It has already been fhewn, how the judges differed in their opinions about the nature of a libel, in the cafe of the seven bishops. There you fee three judges of one opinion, that is, of a wrong opinion, in the judgment of the beft 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 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 uponthem, to their immortal honour, to determine both law and fact, and to understand the petition of the bifhops to be no libel, that is, to contain no falfhood nor fedition, and therefore found them not guilty. And remarkable is the cafe of Sir Samuel Barnardifton, who was fined 10,000l. for writing a letter, in which, it may be faid, none faw any scandal or falfhood but the court and jury; for that judgment was afterwards looked upon as a cruel and deteftable judgment, and therefore was reverfed by parliament. Many more inftances might be given of the complaifance of court judges, about those times and before; but I will mention only one cafe more, and that is the cafe of Sir Edward Hales, who, tho a Roman Catholic, was by king James II. preferred to be a colonel of his army, notwithstanding the ftatute of 25 Cha. 2d. Chap. 2. by which it is provided, "That every one that accepts of an office, civil or military, &c. fhall take the oaths, fubfcribe the declaration, and take the facrament, within three months, &c. otherwife he is difabled to hold fuch office, and the grant for the fame to be null and void, and the party to forfeit 500l." Sir Edward Hales did not take the oaths or facrament, and was profecuted for the 500l. for exercifing the office of a colonel by the fpace of three months, without conforming as in the act is directed. Sir Edward pleads, "That the king by his letters-patents did difpense with his taking the oaths and facrament, and fubfcribing the declaration, and had pardoned the forfeiture of 500l." And "whether the king's difpenfation was good, against the said act of parliament ?" was the question. I fhall mention no more of this cafe, than to fhew how in the reign of an arbitrary prince, where judges hold their feats at pleasure, their determinations have not always been fuch as to make precedents of, but the contrary;

contrary; and fo it happened in this cafe where it was folemnly judged, "That, notwithstanding this act of parliament, made in the ftrongest terms for prefervation of the proteftant religion, That yet the king had, by his royal prerogative, a power to difpenfe with that law;" and fir Edward Hales was acquitted by the judges accordingly. So the king's difpenfing power, being by the judges fet up above the act of parliament, this law, which the people looked upon as their chief fecurity against popery and arbitrary power, was by this judgment rendered altogether ineffectual. But this judgment is fufficiently expofed by fir Edward Atkins*, late one of the judges of the court of Common-pleas in his Enquiry into the king's power of difpenfing with poenal ftatutes; where it is fhewn, who it was that first invented difpenfations; how they came into England; what ill ufe has been made of them there; and all this principally owing to the countenance given them by the judges. He fays of the difpenfing power †, The pope was the inventor of it; our kings have borrowed it from them; and the judges have from time to time nurfed and dreffed it up, and given it countenance; and it is ftill upon the growth, and encroaching, 'till it has almoft fubverted all law, and made the regal power abfolute if not diffolute. This feems not only to fhew how far judges have been influenced by power, and how little cafes of this fort, where the prerogative has been in queftion in former reigns, are to be relied upon for law but I think it plainly fhews too, that a man may use a greater freedom with the power of his fovereign and the judges in Great-Britain, than it seems he may with the power of a governor in the plantations, who is but a fellow-fubject. Are thefe words with which we are charged, like thefe Do Mr. Zenger's papers contain any fuch freedoms with his governor or his council, as fir Edward Atkins has taken with the regal power and the judges in England? And yet I never heard of any information brought against him for these freedoms.

If then upon the whole there is fo great an uncertainty among judges (learned and great men) in matters of this kind; if power has had fo great an influence on judges, how cautious ought we to be in determining by their judgments, efpecially in the plantations, and in the cafe of libels? There is herefy in law, as well as in religion, and both have changed very much; and we well know, that it is not two centuries

*Sir Edward Atkins's enquiry into the power of difpenfing with ponal ftatutes. Postfcript to the Enquiry, pag. 51.

ago that a man would have been burnt as an heretic, for owning fuch opinions in matters of religion as are publicly wrote and printed at this day. They were fallible men, it feems, and we take the liberty not only to differ from them in religious opinions, but to condemn them and their opinions. too; and I must prefume, that in taking these freedoms in thinking and speaking about matters of faith or religion, we are in the right for, tho' it is faid there are very great liberties of this kind taken in New-York, yet I have heard of no information_preferred by Mr. Attorney for any offences of this fort. From which I think it is pretty clear, That in New-York a man may make very free with his God, but he must take special care what he fays of his governor. It is agreed upon by all men that this is a reign of liberty, and while men keep within the bounds of truth, I hope they may with fafety both speak and write their fentiments of the conduct of men in power, I mean of that part of their conduct only, which affects the liberty or property of the people under their adminiftration. Were this to be denied, then the next step may make them flaves: for what notions can be entertained of flavery, beyond that of fuffering the greateft injuries and oppreffions, without the liberty of complaining; or if they do, to be diteroyed, body and eftate, for fo doing.

It is faid and infifted on by Mr. Attorney, "That government is a facred thing; That it is to be fupported and rever enced; it is government that protects our perfons and estates; That prevents treafons, murders, robberies, riots, and all the train of evils that overturns kingdoms and ftates, and ruins particular perfons; and if thofe in the adminiftration, efpecially the fupreme magistrate, must have all their conduct cenfured by private men, government cannot fubfift." This is called a licentioufnefs not to be tollerated. It is faid, "That it brings the rulers of the people into contempt, and their authority not to be regarded, and fo in the end the laws cannot be put in execution." Thefe I fay, and fuch as thefe, are the general topics infifted upon by men in power, and their advocates. But I wish it might be confidered at the fame time, how often it has happened, that the abufe of power has been the primary caufe of thefe evils, and that it was the injuftice and oppreffion of thefe great men, which has commonly brought them into contempt with the people. The craft and art of fuch men is great, and who, that is the leaft acquainted with history or law, can be ignorant of the fpecious pretences, which have often been made ufe of by men in power, to introduce arbitrary rule, and destroy the liberties of a free peo

ple,

ple. I will give two inftances; and as they are authorities not to be denied, nor can be misunderstood, I prefume they will be fufficient.

The firft is the ftatute of 3d of Hen. 7. Cap r The preamble of the ftatute will prove all, and more than I have alleged. It begins, "The king our fovereign lord remembereth how by unlawful maintenances, giving of liveries, figns and tokens, &c. untrue demeanings of fheriffs in making of pannels, and other untrue returns, by taking of money, by injuries, by great riots and unlawful affemblies; the policy and good rule of this realm is almoft fubdued; and for the not punishing these inconveniencies, and by occafion of the premiffes, little or nothing may be found by inquiry, &c. to the increase of murders, &c. and unfureties of all men living, and loffes of their lands and goods." Here is a fine and fpecious pretence for introducing the remedy, as it is called, which is provided by this act, that is; instead of being lawfully accufed by 24 good and lawful men of the neighbourhood, and afterwards tried by 12 like lawful men, here is a power given to the lord chancellor, lord treasurer, the keeper of the king's privy-feal, or two of them, calling to them a bishop, a temporal lord, and other great men mentioned in the act, (who, it is to be obferved, were all to be dependents on the court) to receive information against any perfon for any of the mifbehaviours recited in that act, and at their difcretion to examine and to punish them according to their demerit.

The second statute I proposed to mention, is the 11th of the fame king, Cap. 3. the preamble of which act has the like fair pretences as the former; "for the king calling to his remembrance the good laws made against the receiving of liveries, &c. unlawful extortions, maintenances, embracery, &c. unlawful games, &c. and many other great enormities, and offences committed against many good ftatutes, to the dif pleasure of almighty God," which, the act fays, "could not, nor yet can, be conveniently punished by the due order of the law, except it were firft found by 12 men, &c. which, for the causes aforefaid, will not find nor yet prefent the truth." And therefore the fame ftatute directs, That the juftices of affize, and justices of the peace, shall upon information for the king before them made, have full power, by their difcretion, to hear and determine all fuch offences." Here are two statutes that are allowed to have given the deepest wound to the liberties of the people of England of any that I remember to have been made, unless it may be faid, that the

ftatute made in the time of Henry VIIIth, by which his preclamations were to have the effect of laws, might in its confequence be worse. And yet we fee the plaufible pretences found out by the great men to procure thefe acts. And it may justly be faid, That by thofe pretences the people of England were cheated or awed into the delivering up their antient and facred right of trials by grand and petit juries. I hope to be excused for this expreffion, feeing my Lord Coke (in his 4th institute) calls it "an unjust and ftrange act, that tended in its execution to the great difpleasure of almighty God, and the utter fubverfion of the common law."

Thefe, I think, make out what I alleged, and are flagrant inftances of the influence of men in power, even upon the representatives of a whole kingdom. From all which I hope it will be agreed, that it is a duty which all good men owe to their country, to guard against the unhappy influence of ill men when intrufted with power, and especially against their creatures and dependants, who, as they are generally more neceffitous, are furely more covetous and cruel. But it is worthy of obfervation, that tho' the spirit of liberty was borne down and oppreffed in England at that time, yet it was not loft; for the parliament laid hold of the first opportunity to free the fubject from the many infufferable oppreffions and outrages committed upon their perfons and estates by colour of these acts, the last of which being deemed the moft grievous, was repealed in the first year of Henry VIIIth. Tho' it is to be obferved, that Henry VIIth and his creatures reaped fuch great advantages by the grievous oppreffions and exactions, grinding the faces of the poor fubjects, as my lord Coke fays, by colour of this ftatute by information only, that a repeal of this act could never be obtained during the life of that prince. The other ftatute, being the favourite law for fupporting arbitrary power, was continued much longer. The execution of it was by the great men of the realm; and how they executed it, the fenfe of the kingdom, expreffed in the 17th of Charles Ift, (by which the court of ftar-chamber, the foil where informations grew rankeft) will beft declare. In that ftatute Magna Charta, and the other ftatutes made in the time of Edward III. which, I think, are no less than five, are particularly enumerated as acts, by which the liberties and privileges of the people of England were fecured to them, against fuch oppreffive courts as the ftar-chamber and others of the like jurifdiction. And the reafon affigned for their pulling down the ftar-chamber, is, "That the proceedings, cenfures and decrees of the court of ftar chamber, even tho' the great

men