Zenger’s Lawyers on the Behavior of His Judges

James Alexander and William Smith, disbarred for their exceptions to the commissions of the two Justices of the Supreme Court, won reinstatement in their practice after an appeal to the legislature. Their appeal was printed by Peter Zenger under the title, The Complaint of James Alexander and William Smith to the Committee of the General Assembly of the Colony of New York (1735). Here is the centerpiece of their argument:

We conceived the innocence of our client no sufficient security while we esteemed the Governor his prosecutor, who had the judges in his power. We had too much reason for caution from the conduct of the Chief Justice. We heard how His Honor had vented his displeasure against him when he accidentally met him in the street on the Sunday before his arrest. We had been witnesses to sundry warm charges and moving addresses to several grand juries plainly leveled against Zenger, and with intention to procure his country to indict him. And we saw his name among that committee of the Council that conferred with a committee of this House in order to procure a concurrence to condemn some of Zenger’s Journals without giving him an opportunity to defend them. We heard that the Chief Justice was a principal manager at that conference and spoke much on that occasion. We saw his name among those who issued that order of the Council that commanded the magistrates of this city to attend the burning of some of the Journals, and which sets forth that they had been condemned by the Council to be burned by the hands of the common hangman. We much doubted the legality of these extraordinary proceedings of the Chief Justice and the rest of the Council. We saw the Chief Justice’s name among those who issued that extraordinary warrant by which our client was apprehended. We had seen his want of moderation in demanding security in 800 pounds when Zenger was brought before him on his habeas corpus, though the act required bail to be taken only according to the quality of the prisoner and nature of the offense, and though at the same time this poor man had made oath before him that he was not worth 40 pounds, besides the tools of his trade and his apparel. We had heard the Chief Justice declare, in the fullest court we had then ever seen in that place, that if a jury found Zenger not guilty they would be perjured, or words to that effect; and this even before any information in form was lodged against him. As for Justice Philipse, we had been told how vigorous and active he had been in the General Assembly to procure the concurrence of that House with the Council in the order for the burning of Zenger’s papers, even before they were legally condemned, and in addressing the Governor to issue a proclamation with a promise of reward for the discovery of the writers of them, and in an order for prosecuting the poor printer.

We wish we had no occasion to repeat these things to show the motives of our conduct. Had we not been obliged thereto in order to vindicate ourselves, we had much rather that they had been buried in silence. But under these many forewarnings what could we do, what ought we to do, for our client? Surely everything that was lawful and likely to contribute to his safety.