From the Boston Gazette.

Mr. Printer, I defire you as a Friend to the Liberty of the Prefs, to infert the fallowing Copy of a Letter from an eminent COUNSELLOR, and a Friend of Liberty, to his Correfpondent at NEW

66

YORK.

I

Rejoice at the attack upon Captain M'Dougall—

-What

ever was the defign of your old lieutenant governor and his adherents, in ftirring up a profecution against that gallant fon of liberty, it will rather advance than injure the grand caufe of America- The ftroke meant at him, will prove a fatal one to the mutiny act; for a fpirit of jealoufy and enquiry is gone forth, and no future wheedling to procure fresh compliances with that ftatute will fucceed.

"Before this alarm, our zeal for liberty began to languish. Uniformity of fentiment induced a degree of fupineness; and as every man trufted to the vigilance of his neighbour, we were all compofing ourselves for a nap of fecurity. There was a neceffity for fresh oil to quicken the expiring lamp: and let the miniftry reftrain their gratitude if they pleafe, certainly we should be forward in a fort of thanks to Mr. Colden, and the politicians of his train. They have done a good service continent, in fending a fon of liberty to gaol, and I hope they will increase the obligation, by bringing him to trial.

to the

"I take it for granted, that he wrote or published the paper of the 16th of December, which all the three branches of your legiflature are pleased to call a libel. And if he is not profecuted (as I prefume he is not) for the glances in it at Major Pullian and Mr Jauncy, the libellous matter must confift in the charge, that your donation of zoool. for the ufe of the troops, and in compliance of the mutiny act, was unfriendly to the liberties of the people; and that this was the effect of a late coalition between the lieutenant governor and a certain family of influence.

"The point therefore to be tried, is, whether this is a libeland can a jury, think you, be found in this day of light and liberty, that will fay, upon their oaths, that it is a crime to refuse a fubmiffion to British taxation? for it is this fubmiffion that is called a betraying the liberties of the people- -God forbid that any province upon the continent fhould ever give proofs of fuch a profligate apoftacy from the virtuous principles which all our affemblies have repeatedly avowed, in their refolves, their addreffes, petitions, memorials, and reprefentations, and in their remonftrances to the very commons of Great Britain, ever fince the publication of the peftilent and accursed stamp act, of 1765.

"You afk my opinion, whether Mr. Colden and his council have done right or wrong? If you mean, fir, by this question,

whether

whether their conduct was prudent or not? I am at a loss without the knowledge of the end they had in view, to give you

a determinate answer.

Upon a fuppofition, that their aim was to revive a fpirit of liberty, and put an end to any further inftances of condefeenfion to parliamentary taxations in this country, they deferve thanks.

"If they meditated by this project, to intimidate the fons of liberty, and fupprefs their generous ardour for the glorious caufe we have fo long been contending for, they merit

but I forbear

mean.

every true friend of America knows what I

A fuffering and provoked people will manifeft their ábhorrence of a confederacy, if ever any one should happen to be formed against the felicity of fo many millions of their fellow fubjects.

"But perhaps your question is only an enquiry about the law concerning libels, and the application of it to the papers abovementioned; and here too we must be careful to make proper diftinctions. The general courfe of proceedings in England, with refpect to defamatory publications, is conducted according to resolutions abfurd in themselves, and fubverfive of a free state; and confidering the progrefs of knowledge, and the independency of the judges, ever fince the glorious revolution, 'tis aftonifhing, that a Holt, a Parker, a Fofter, and fuch other lights of the age, have not established fuch maxims (extracted from the grounds and principles of the law) as are compatible with common fenfe, and the public fafety Hitherto they have followed the irrational and pernicious decifions of defpotic times; for all the state law usually urged in cafes of this kind by the informer general for the government has no higher authority in its favour than the meer dictum of the judges.

"Every body will agree that private flander ought to be punished; and few if any will deny it to be reafonable, that a man who accufes magiftrates and officers in high ftations, of an abuse of their trufts, ought to be amenable to justice, if his motive is a malicious defign to afperfe without caufe,

"It seems neceffary alfo, that the magiftrate fhould have the power of committing offenders of this kind, at difcretion; and that while the matter is before him upon the queftion, fhall I commit or not? It should be perfectly immaterial, whether the accufation in the defamatory writing is true or falfe: And upon this principle your governor and chief juftice, may have a legal apology for the imprifonment of Captain M'Dougal, if there was fufficient proof of his writing or publishing the paper laid to his charge, whatever may be thought of the means used to extract a difcovery.

But the malignancy of the crown law, in the decifions relative to libels, refpects the mode and power of bringing a man to trial, for what he writes or prints, by information and at the arbitrary pleasure of an attorney general, a dependent, will and pleasure officer, and the practice of the courts, first in overruling all proof of the truth of the publication, then labouring to get the jury to confine themselves merely to declare the point of fact by special verdict, that the defendant wrote or published the paper; and laft of all in pronouncing the horrid judgment that the truth of the facts rather aggravates than mitigates the of fence.

"This is what Englishmen call ftar-chamber law; a court, of which no friend to his country can fpeak without emotion; and indeed it was fuch a cruel engine of oppreffion, that it deferves the sharpest invectives.

"It was a tribunal in which our Kings anciently prefided in perfon; and their affiftants were their own privy counfellors. Its name is owing to the cieling of the chamber where it was held, which was garnished with golden ftars; and proceeding without a jury, well might the poor Jubject tremble before a bar where every circumftance infpired terror and confufion.

At first it interfered only, as Lord Coke informs us, in caufes enormous and exorbitant, and fat rarely; but its authority and jurifdiction were afterwards amazingly augmented by divers acts of parliament. In Henry the 7th's reign, the chancellor, the treasurer and keeper of the privy feal, with a bishop, a privy counsellor, and two judges were authorised to proceed upon a bill of information, against any perfon for maintenance, and for almoft all crimes. In the next reign the prefident of the council was added to the judges, and the court had power to punish at difcretion.

"Sometimes they proceeded againft a man ore tenus, that is in a fummary way, without any formality, and as the failor says, knocked off the cause in a jirk.

"Profecutions were most commonly by a bill or information, which the King's attorney general brought in and managed. They heard witnelles, examined even the accused, and pronounced judgment both as judges and jurors.

"The inquifition of Portugal and Spain was not more inimical to the rights of private judgment in matters of religion, than the ftar chamber to thofe which refpected the behavior of public officers in civil concerns.- -Agents themselves, in the conduct of the affairs of the nation, how deeply were they not interefted in the fuppreffion of all private complaints that might creare a general alarm!- -And how was it poffible for any man to lifp an accufation with fafety, or efcape with impunity, when the inftruments of government were to be both parties against him, and judges of his caufe.

"A court fo well adapted to fan the fparks of ambition and corruption, and ftrengthen the arm of oppreffion, exerted its Vol. VII. formidable

H

formidable power to the utmoft; and then it was that those damnable berefies (if I may fo fpeak) crept into our law, that a libel is not the less fo for being true, and that the accufed (which by the way feems to be its natural confequence) fhall not be permitted to fay a word in fupport of the allegations charged upon him as a crime.

"Profecutions for libels became a great part of their bufinefs, and proceeding from one inftance of cruelty to another, the nation at length grew impatient of this horrible judicatory, and in the fixteenth year of the reign of Charles the firft, it was totally abolished by an act of parliament, which records its enormities, and brands it with everlafting infamy; for it exprefsly recites, That the proceedings, anfwers, and decrees of that court, bave by experience, been found to be an intolerable burden to the fubject, and the means to introduce an arbitrary power and government.

"The precedent nevertheless furvived, though the court was deftroyed; and a temporifing fpirit in the fucceeding reigns of Charles and James the IId. princes not yet rid of the fears of the men, who had cut off their father's head, feized, and often triumphed in the courts of justice, and led them to favour, as much aspoffible, the arbitrary dogmas of the haughty judges. of the ftar-chamber bench.

"Upon the demolition of that tremendous judicature, the bufinefs of it fell into the court of King's bench, and then no man could be convicted without the verdict of a jury, according to the ancient law of the land; but the glorious fecurity thereby given for freedom in writing and speaking, was offenfive to the great, and a wicked attempt was foon made to enflave the jurors, and raife a new ftar-chamber, even in Weftminsterhall, for to induce them to caft an obnoxious defendant into the hands of the judges, it was held, that if they would not find verdicts according to the direction of the court, they were fubject both to fine and imprisonment; an experiment for robbing the people of this unfpeakable privilege, was made on the trial of William Mead and the famous William Pen, the fame to whom we owe one of the freeft and fairest of our colonies. Twelve undaunted jurors at that time refolved rather to perish than give up the defendants to the rage of a malicious court, and were fined forty marks each, and fent to Newgate; but to the honour and immortal memory of Mr. Bushel, a renowned fon of liberty, who brought his habeas corpus, a victory was foon obtained over their infamous judges, whofe proceedings were adjudged to be illegal; nor has any court fince the year 1670, when that memorable trial was had, (which every friend of liberty ought to read, and will find in the fecond volume of the State of Trials at large) dared to invade this bulwark of fafety against the pride, infolence, and partiality of power.

"Deprived

"Deprived of the means to compel, the judges have fince laboured to perfuade juries into fuch verdicts as they wished to have found; and proceeding upon the old. Starchamber principles, the more easily to gain conviction, they have refused to let the jurors hear any proof of the truth of the libel, foreseeing the extreme difficulty of perfuading twelve honeft men of common fenfe, to bring in a verdict against a defendant for publishing what it is proper for the country to be informed of, and what he had clearly made out in proof.

"The trial of Capt. Mc Dougall, may bring the propriety of this practice to a folemn decifion in America; certainly it can never be difcuffed at a more favourable juncture; and I hope your judges will embrace an opportunity of acquiring to themselves lafting and univerfal applaufe and renown.-No antiquity can juftify what is incompatible with reafon, the public fafety and found principles of law. They are bound down by no act of parliament. The meer dicta of fome of their predeceffors, is all the authority they can have against an enquiry into the truth of the charge; and our books are full of inftances of a departure from precedent, and the correction of ancient grey-headed errors. How often have the English judges ruled, that all treafons out of England, may be tried there; and will an American judge follow their opinion in the cafe of an American treafon ?- -Undoubtedly the English comment upon the ftatute was erroneous-and a good judge will depart from error, and not only rifk the confequences of being fingularly right, but feel a noble pride in his fuperiority to the influence of exceptionable examples.

"The defendant juftifies in flander, by proving the truth of the words fpoken on an indictment for a battery, an affault demefne, or that he gave the blow in his own defence, is good evidence for an acquittal, and daily admitted.

"It is a rule, that the Special matter may be proved on the plea of not guilty, in criminal profecutions; and it is beyond the wit of man to reconcile the Star-Chamber practice with thofe indubitable decifions of the law.

It is also a rule not to admit explanatory affidavits for the mitigation of a fine after a trial had; and the very reafon affigned, why they are only read upon a fubmiffion to the mercy of the court, is because on a trial, the judges acquire all the information neceffary for applying proper degrees of punishment; and how is it poffible to avoid error, unless an opportunity is given for all the juftifying mitigation and apologetical proof to come fairly out? Suppofe a man to be charged with robbing the treasury of the nation: is it not a virtue to make a charge, if it is true? admit to a crown hireling, that it is a crime, is it no mitigation that the accufation is proved to be true? Away with all the StarChamber nonfenfe-Nonfenfe do I call it!-It is monstrous for a judge to rife up and tell a jury, that the enquiry into the realig of the robbery is immaterial to the defence; and to add, that the libel

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