  As there was but one printer in the Province of New York who printed a public newspaper, I “Gentlemen, I shall conclude with reading a paragraph or two out of the same book concerning libels. They are arrived to that height that they call loudly for your animadversion. It is high time to put a stop to them. For at the rate things are now carried on, when all order and government is endeavored to be trampled on, and reflections are cast upon persons of all degrees, must not these things end in sedition, if not timely prevented? Lenity you have seen will not avail. It becomes you then to inquire after the offenders, that we may in a due course of law be enabled to punish them. If you, gentlemen, do not interpose, consider whether the ill consequences that may arise from any disturbances of the public peace may not in part lie at your door? “Hawkins,[1] in his chapter on libels, considers, first what
“As to the second point, he says:
“These, gentlemen, are some of the offenses which are to make part of your inquiries. If any other should arise in the course of your proceedings, in which you are at a loss or conceive any doubts, upon your application here we will assist and direct you.” The grand jury not indicting me as was expected, the gentlemen of the Council proceeded to take my Journals into consideration, and sent the following message to the Assembly:
“Gentlemen, the matters we request your concurrence in are that Zenger’s papers, Nos. 7, 47, 48, 49—which were read, and which we now deliver—be burned by the hands of the common hangman, as containing in them many things derogatory of the dignity of His Majesty’s government, reflecting upon the legislature and upon the most considerable persons in the most distinguished stations in the Province, and tending to raise seditions and tumults among the people thereof. “That you concur with us in addressing the Governor to issue his proclamation with a promise of reward for the discovery of the authors or writers of these seditious libels. “That you concur with us in an order for prosecuting the printer thereof. “That you concur with us in an order to the magistrates to exert themselves in the execution of their offices in order to preserve the public peace of the Province.”
On Tuesday, November 5, 1734, the Quarter Sessions for the City of New York began, when the sheriff delivered to the Court an order which was read in these words: “Whereas by an order of this Council some of John Peter Zenger’s journals, entitled The New York Weekly Journal, Nos. 7, 47, 48, 49, were ordered to be burned by the hands of the common hangman or whipper near the pillory in this “It is therefore ordered that the mayor and magistrates of this city do attend at the burning of the several papers or journals aforesaid, numbered as above mentioned.” Upon reading of which order, the Court forbade the entering thereof in their books at that time, and many of them declared that if it should be entered they would have their protest entered against it. On Wednesday, November 6, the sheriff of New York moved the Court of Quarter Sessions to comply with the said order, upon which one of the aldermen offered a protest which was read by the clerk and approved by all the aldermen, either expressly or by not objecting to it, and is as follows: “Whereas an order has been served on this Court; “And whereas this Court conceives that they are only to be commanded by the king’s mandatory writs, authorized by law, to which they conceive that they have the right of showing cause why they do not obey them if they believe them improper to be obeyed; or by orders which have some known laws to authorize them; “And whereas this Court conceives this order to be no mandatory writ warranted by law, nor knows of no law that authorizes making the order aforesaid, so they think themselves under no obligation to obey it. Which obedience they think would be in them the opening of a door for arbitrary commands, “Therefore this Court conceives itself bound in duty (for the preservation of the rights of this Corporation, and, as much as they can, of the liberty of the press and of the people of the Province, since the Assembly of the Province and several grand juries have refused to meddle with the papers when applied to by the Council) to protest against the order aforesaid, and to forbid all the members of this Corporation to pay any obedience to it until it be shown to this Court that the same is authorized by some known law, which they neither know nor believe that it is.” Upon the reading of which it was required of the honorable Francis Harison, recorder of this Corporation and one of the members of the Council (who was present at the making of the said order), to show by what law or authority the said order was made. Upon which he spoke in support of it, and cited the case of Doctor Sacheverell’s sermon,[2] which was by the House of Lords ordered to be burned by the hands of the hangman, and that the mayor and aldermen of London should attend the doing of it. To which one of the aldermen answered to this purpose, that he conceived the case was no ways parallel because Doctor Sacheverell and his sermon were impeached by the House of Commons of England, which is the grand jury of the nation and representative of the whole people of England. That this, their impeachment, they prosecuted before the House of Lords, the greatest court of justice of Britain, and which beyond the memory of man has had cognizance of things of that nature. That Sacheverell had a fair hearing in defense of himself and his sermon. And after that fair hearing he and his sermon were justly, fairly, and legally condemned. That he had read the case of Doctor Sacheverell, Mr. Recorder was desired to produce the books from whence he cited his authorities, that the court might judge of them themselves; and was told that if he could produce sufficient authorities to warrant this order they would readily obey it, but not otherwise. Upon which he said that he did not carry his books around with him. To which it was answered that he might send for them, or order a constable to fetch them. Upon which he arose, and at the lower end of the table he mentioned that Bishop Burnet’s pastoral letter was ordered by the House of Lords to be burned by the high bailiff of Westminster.[3] Upon which he abruptly went away without waiting for an answer or promising to bring his books, and did not return. After Mr. Recorder’s departure it was moved that the protest should be entered. To which it was answered that the protest could not be entered without entering also the order, and that it was not fit to take any notice of it; and therefore it was proposed that no notice should be taken in their books of either, which was unanimously agreed to by the court. The sheriff then moved that the court would direct their whipper to perform the said order. To which it was answered that as he was an official of the Corporation they would give no such order. Soon after the court adjourned, and did not attend the burning of the papers. Afterwards, about noon, the sheriff, after reading the numbers of the several papers which were ordered to be burned, delivered them into the hands of his own Negro and ordered him to put them into the fire, which he did. Mr. Recorder and several of the officers of the garrison attended. On the Lord’s Day, November 17, 1734, I was taken and imprisoned by virtue of a warrant in these words: “At a Council held at Fort George in New York, November 2, 1734. Present: His Excellency William Cosby, Captain General and Governor in Chief, Mr. Clarke, Mr. Harison, Mr. Livingston, Mr. Kennedy, the Chief Justice, Mr. Cortlandt, Mr. Lane, Mr. Horsmanden. “It is ordered that the sheriff for the City of New York do forthwith take and apprehend John Peter Zenger for printing and publishing several seditious libels dispersed throughout his journals or newspapers, entitled The New York Weekly Journal; as having in them many things tending to raise factions and tumults among the people of this Province, inflaming their minds with contempt of His Majesty’s government, and greatly disturbing the peace thereof. And upon his taking the said John Peter Zenger, to commit him to the prison or common jail of the said city and county.” And being by virtue of that warrant so imprisoned in the jail, I was for several days denied the use of pen, ink and paper, and the liberty of speech with any persons.
Sundry other authorities and arguments were produced and insisted on by my counsel to prove my right to be admitted to moderate bail, and to such bail as was in my power to give. Sundry parts of history they produced to show how much the requiring of excessive bail had been resented by Parliament. And in order to enable the court to judge what surety was in my power to give, I made affidavit that (my debts paid) I was not worth forty pounds (the tools of my trade and wearing apparel excepted). Some warm expressions (to say no worse of them) were dropped on this occasion, sufficiently known and resented by the listeners, which for my part I desire may be buried in oblivion. In the end it was ordered that I might be admitted to bail, myself in 400 pounds with two sureties, each in 200 pounds, and that I should be remanded till I gave it. As this was ten times more than was in my power to countersecure any person in giving bail for me, I conceived that I could not ask any to become my bail on these terms; and therefore I returned to the jail, where I lay until Tuesday, January 28, 1735, the last day of the court term. Then, the grand jury having found nothing against me, I expected to be discharged from my imprisonment. But my hopes proved vain, for the attorney general then charged me by “information” for printing and publishing parts of my Journals Nos. 13 and 23 as being “false, scandalous, malicious and seditious.”
Mr. Alexander offered the above “exceptions” to the Court and prayed that they might be filed. Upon this the Chief Justice said to Mr. Alexander and Mr. Smith that they ought well to consider the consequences of what they offered. To which both answered that they had well considered what they offered, and all the consequences. Mr. Smith added that he was so well satisfied of the right of the subject to take an exception to the commission of a judge, if he thought such commission illegal, that he durst venture his life upon that point. As to the validity of the exceptions then offered, he said he took that to be a second point, but was ready to argue them both, if Their Honors were pleased to hear him. To which the Chief Justice replied that he would consider the exceptions in the morning, and ordered the clerk to bring them to him. On Wednesday, April 16, 1735, the Chief Justice delivered one of the exceptions to the clerk, and to Justice Philipse the other, upon which Mr. Smith arose and asked the judges whether Their Honors would hear him. To which the Chief Justice said that they would neither hear nor allow the exceptions. “For,” said he, “you thought to have gained a great deal of applause and popularity by opposing this Court; but you have brought it to that point that either we must go from the bench or you from the bar. Therefore we exclude you and Mr. Alexander from the bar.” He delivered a paper to the clerk and ordered it to be entered, which the clerk entered accordingly, and returned the “James Alexander and William Smith, attorneys of this Court, having presumed (notwithstanding they were forewarned by the Court of their displeasure if they should do it) to sign, and having actually signed and put into Court, exceptions in the name of John Peter Zenger, thereby denying the legality of the judges’ commissions (though in the usual form) and the being of this Supreme Court; “It is therefore ordered that, for the said contempt, the said James Alexander and William Smith be excluded from any farther practice in this Court, and that their names be struck out of the roll of attorneys of this Court.” After the order of the Court was read, Mr. Alexander asked whether it was the order of Mr. Justice Philipse as well as of the Chief Justice? To which both answered that it was their order. Mr. Alexander added that it was proper to ask the question that they might know how to have their relief. He further observed to the Court, upon reading of the order, that they were mistaken in their wording of it because the exceptions were only to their commissions, and not to the being of the Court, as is therein alleged; and prayed that the order might be altered accordingly. The Chief Justice said they conceived the exceptions were against the being of the Court. Both Mr. Alexander and Mr. Smith denied that they were, and prayed the Chief Justice to point to the place that contained such exception. They further added that the Court might well exist although the commissions of all the judges were void; which the Chief Justice confessed to be true. Therefore they prayed again that the order in that point might be altered. But it was denied.
They both also mentioned that it was a doubt whether by the words of the order they were debarred of their practice as counsel as well as attorneys, whereas they practiced in both capacities. To which the Chief Justice answered that the order was plain: That James Alexander and William Smith were debarred and excluded from their whole practice at this bar, and that the order was intended to bar their acting both as counsel and as attorneys, and that it could not be construed otherwise. It being asked Mr. Philipse whether he understood the order so, he answered that he did. Upon this exclusion of my counsel I petitioned the Court to order counsel for my defense, who thereon appointed John Chambers; who pleaded “Not guilty” for me. But as to the point whether my exceptions should be part of the record as was moved by my former counsel, Mr. Chambers thought not proper to speak to it. Mr. Chambers also moved that a certain day in the next term might be appointed for my trial, and for a struck jury. Whereupon my trial was ordered to be on Monday, August 4, and the Court would consider till the first day of next term whether I should have a struck jury or not, and ordered that the sheriff should in the meantime, at my charge, return the Freeholders book. On Tuesday, July 29, 1735, the Court opened. On the motion of Mr. Chambers for a struck jury, pursuant to the rule of the preceding term, the Court were of the opinion that I was entitled to have a struck jury. That evening at five o’clock some of my friends attended the clerk for striking the jury; when to their surprise the clerk, instead of producing the Freeholders book, to strike the jury from it in their presence My friends told him that a great number of these persons were not freeholders; that others were persons holding commissions and offices at the Governor’s pleasure; that others were of the late displaced magistrates of this city, who must be supposed to have resentment against me for what I had printed concerning them; that others were the Governor’s baker, tailor, shoemaker, candlemaker, joiner, etc.; that as to the few indifferent men that were upon that list, they had reason to believe (as they had heard) that Mr. Attorney had a list of them, to strike them out. And therefore they requested that he would either bring the Freeholders book, and choose out of it 48 unexceptional men in their presence as usual, or else that he would hear their objections particularly to the list he offered, and that he would put impartial men in the place of those against whom they could show just objections. Notwithstanding this, the clerk refused to strike the jury out of the Freeholders book, and refused to hear any objections to the persons on the list; but told my friends that if they had any objections to any persons, they might strike those persons out. To which they answered that there would not remain a jury if they struck out all the exceptional men, and according to the custom they had a right to strike out only twelve. Finding no arguments could prevail with the clerk to hear their objections to his list, nor to strike the jury as usual, Mr. Chambers told him that he must apply to the Court; which the next morning he did. And the Court upon his motion ordered that the 48 should be struck out of the Freeholders book as usual, in the presence of the parties, and that the clerk should hear objections to persons proposed to be of the |
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