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.