overruled by DeLancey, who, as an appointee of Cosby, was naturally on the side of the Governor. As a matter of fact, though, the law as it then stood was on the side of the Chief Justice.[1]
From the time of the Star Chamber there had been little addition to, or development of the law with regard to seditious offenses. It was under the law as laid down by Lord Chief Justice Holt that Zenger was being tried: "If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is necessary for all governments that the people should have a good opinion of it."[2]
This was still the law of England, and necessarily of the colonies. It is said that a great deal of the vivacity and energy used at that time in cases where the liberty of the press was concerned, was due to the fact that the lawyers realized the insecurity of the legal foundation of that liberty.[3] We have seen how William Bradford was tried under this law, but in his case the jury was instructed to find whether the papers printed by Bradford tended to weaken the hands of the magistrates as well as to find whether Bradford printed it. "Comme la virite, Verreur a ses heros."[4]
The law had already been tested and accepted in the colonies. In 1702 Colonel Nicholas Bayard was charged with alleged libels which were not put in evidence but which were declared to contain charges that "the hottest and ignorantest of the people were put in places of trust," and on this verbal statement Colonel Bayard was sen-
