As there was but one printer in the Province of New York who printed a
public newspaper, I[2] was in hopes that if I undertook to publish
another I might make it worth my while. I soon found my hopes were not
groundless. My first paper was printed on November 5, 1733; and I
continued printing and publishing them, I thought to the satisfaction of
everybody, till the January following, when the Chief Justice was
pleased to animadvert upon the doctrine of libels in a long “charge”
given in that term to the grand jury. Afterwards, on the third Tuesday
of October, 1734, he was again pleased to charge the grand jury in the
following words:
“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 shall be
said to be a libel, and secondly who are liable to be punished for it.
Under the first he says:
Nor can there be any doubt but that a writing which defames a private
person only is as much a libel as that which defames persons intrusted
in a public capacity, inasmuch as it manifestly tends to create ill
blood, and to cause a disturbance of the public peace. However, it is
certain that it is a very high aggravation of a libel that it tends to
scandalize the government, by reflecting on those who are intrusted
with the administration of public affairs; which does not only
endanger the public peace, as all other libels do, by stirring up the
parties immediately concerned in it to acts of revenge, but also has a
direct tendency to breed in the people a dislike of their governors,
and incline them to faction and sedition.
“As to the second point, he says:
It is certain that not only he who composes or procures another to
compose it but also that he who publishes, or procures another to
publish it, are in danger of being punished for it. And it is not
material whether he who dispersed a libel knew anything of the
contents or effects of it or not; for nothing could be more easy than
to publish the most virulent papers with the greatest security if
concealing the purport of them from an illiterate publisher would make
him safe in dispersing them.
“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:
[_The message asked the Assembly to appoint a committee to act with
one from the Council. The committees met and decided that the wishes
of the Council should be reduced to writing, which was done in these
terms_]:
“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.”
[_The Assembly flatly refused its concurrence, and the letter from the
Council was returned to it along with the copies of the_ Journal _that
were marked for burning_.]
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 city on Wednesday the 6th between the hours of
11 and 12 in the forenoon, as containing in them many things tending to
sedition and faction, to bring His Majesty’s government into contempt,
and to disturb the peace thereof, and containing in them likewise not
only reflections upon His Excellency the Governor in particular, and the
legislature in general, but also upon the most considerable persons in
the most distinguished stations in this Province;
“_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, which, when once opened, they know not what
dangerous consequences may attend it;
“_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, and thought he could
charge his memory that the judgment of the House of Lords in that case
was that only the mayor and sheriffs of London and Middlesex should
attend the burning of the sermon, and not the aldermen; and further he
remembered that the order upon that judgment was only directed to the
sheriffs of London, and not even to the mayor, who did not attend the
doing of it. And farther said that would Mr. Recorder show that the
Governor and Council had such authority as the House of Lords, and that
the papers ordered to be burned were in like manner legally prosecuted
and condemned, there the case of Doctor Sacheverell might be to the
purpose. But without showing that, it rather proved that a censure ought
not to be pronounced till a fair trial by a competent and legal
authority were first had.
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.
[_Zenger’s lawyers, James Alexander and William Smith, got a habeas
corpus, and then argued before the court that their client had a right
to reasonable bail. In support of their case they appealed to English
law and precedent._]
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.”
[_When the Court reconvened, Alexander and Smith impugned the right of
the Chief Justice, James Delancey, and his colleague, Frederick
Philipse, to preside over the case. The lawyers took the position that
the commissions of Delancey and Philipse were defective because, among
other things, Governor Cosby had appointed the two judges without the
consent of his Council, and “at pleasure” instead of “during good
behavior.”_]
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 paper to the Chief Justice.
After which the Chief Justice ordered the clerk to read publicly what he
had written, an attested copy whereof follows:
“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.
[_At a meeting of the Court two days later Alexander and Smith asked
for a ruling on the extent to which they were affected by the Court
order._]
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 as usual, produced a list of 48 persons whom he said he had
taken out of the Freeholders book.
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
48, and allow of such exceptions as were just. In pursuance of that
order a jury was that evening struck to the satisfaction of both
parties. My friends and counsel insisted on no objections but want of
freehold, although they did not insist that Mr. Attorney General should
show any particular cause against any persons he disliked, but
acquiesced that any person he disliked should be left out of the 48.