Chapter VIII: A Newspaper War (2)

The outcome touched off reactions throughout the other Colonies. The published account of the trial was hailed as a notable addition to the documentation of freedom—something to be referred to whenever the liberties of the subject were endangered. No longer could anyone claim with any kind of justice that resistance to crown officials was always wrong, that it had no real basis in American legal development or political experience: the _Brief Narrative of the Case and Tryal of John Peter Zenger_ was always there to give the lie to the proposition. When resistance became really outspoken in the time of Adams and Otis and Hancock, its leaders could thank Peter Zenger as one of their forerunners who helped generate the mental atmosphere in which revolutionary ideas could grow, thrive, and spread.

Resistance to governors led directly to resistance to the crown. Until the time of the Zenger case, it had been conventional to solve American problems by British experience, to look to the common tradition for both principles and their correct application. After 1735 that procedure was no longer to be accepted without quibble. Speaking to the jury, Andrew Hamilton based his argument on the common sense notion that British law, as such, could not always apply to America, because conditions in the New World were in many respects unique, that in such cases our law would have to develop its own rules and regulations.

Hamilton referred only to legal development since he was defending a client in a court of law; but from his premise a political conclusion could be drawn, namely, that government might not necessarily be directly transferable either: if the Hanoverian monarchy, however successful in Britain, could not rule satisfactorily the Colonial democracy that was developing on this side of the Atlantic, then perhaps something else should be put in its place. In Hamilton’s time the crown itself was not yet suspect; it remained inviolate, the _sanctum sanctorum_ of allegiance and veneration, when its representatives over here were attacked with unmitigated animosity. Hamilton himself remarked that the king differed from his officials in kind rather than merely in degree.

Once, however, the authority of the king had been challenged, then Hamilton’s appeal from British precedent to Colonial experience became very much to the point. His efforts in behalf of liberty for New York helped pave the way for liberty for America, the rebels of the 1770’s drawing from his legal premise the political conclusion that lay implicit in it. He enabled them to argue cogently that independence was not a scandalous novelty but a natural issue of the American situation in the face of an authority three thousand miles away.

The men of the Revolution were well aware of their indebtedness. Gouverneur Morris spoke for them all when he delivered his famous judgment that “The trial of Zenger in 1735 was the morning star of that liberty which subsequently revolutionized America.”

Britain herself did not go unaffected by what had happened in the City Hall of her New York Colony. As far as it concerned freedom of the press, the Zenger case fell into place in a transition that had long been developing in the classical home of libertarian ideas. The account of the trial was reprinted there, and cited as an ideal of what British journalists were striving for. In 1738 a London correspondent wrote to Benjamin Franklin’s _Pennsylvania Gazette_ to say that Andrew Hamilton’s address to the jury was causing something of a furor in the coffeehouses where the gentry and the intelligentsia met, as well as among the professional lawyers. The correspondent quoted one leader of the British bar as saying of Hamilton’s argument, “If it is not law, it is better than law, it ought to be law, and will always be law wherever justice prevails.”

The two great principles—that truth may be used as a defense in libel cases, and that the jury has a right to decide on both the “fact” and the “law”—did eventually become legal for both Britain and America. The process of formal acceptance took time, and the mother country divided with her former Colonies the primacy of writing them into the lawbooks. Britain gave the jury its proper function as early as 1792, with the Fox Libel Act, whereas America had to wait for the Sedition Act of 1798; but we admitted that veracity might be alleged in the Sedition Act, a right which the British were without until Lord Campbell’s Act was passed in 1843.

The struggle for the two principles on both sides of the Atlantic is a monument to the sagacity of Andrew Hamilton. No one could have won their vindication at a single stroke against the inertia of old tradition and habitual usage. But he defended them at the critical moment when change had become a real possibility, and did it so powerfully as to give them a forward drive that could not be stopped. Their triumph was therefore his—at the remove of half a century and more.

The current of ideas set in motion by the Zenger case continued throughout the nineteenth century, and became an integral part of journalism as we know it. Libel suits did not diminish; on the contrary, they increased; but they did not follow the lines of the Zenger prosecution. They were mainly suits against “false, scandalous, and malicious” statements in the newspapers, the growing number of such cases reflecting the widening latitude within which editors worked. The word “false” retained the significance that Andrew Hamilton had attributed to it back in 1735. If the threat of the libel action still hung over the heads of journalists (as it rightly did and does), it was not the “libel” that Chief Justice James Delancey had tried to pin on Peter Zenger.

The name of the Colonial printer did not, however, gleam as brightly as it should have in the age of Bennett and Greeley and Raymond and Dana. He was, if not forgotten, at least overlooked or ignored to a surprising extent. Naturally he found a place in the volumes on his art—in Isaiah Thomas’ _History of Printing in America_, a masterpiece that appeared in 1810, and in Charles Hildeburn’s _Sketches of Printers and Printing in Colonial New York_ at the other end of the century (1895). The astonishing thing is that no major work on the Zenger case was written for more than a hundred and fifty years after it.

The twentieth century redressed the balance with Livingston Rutherfurd’s _John Peter Zenger, His Press, His Trial and a Bibliography of Zenger Imprints_ (1904), which, with all its defects, remains the only attempt to treat Peter Zenger and his newspaper extensively and completely. With its full reprint of the trial, it is the standard work on the subject. The past fifty years have produced a mass of periodical essays, learned monographs, and printed documents on the Zenger case; and, of course, we can interpret the event more intelligently through our added experience of how the press fares under tyrannies so abominable that they leave Governor Cosby looking like a rather mild specimen of the juvenile delinquent.

The memory of Peter Zenger was given a fillip in 1933, the year of the bicentennial of the founding of the _New York Weekly Journal_. In October a distinguished group of newsmen gathered at St. Paul’s Church in Eastchester to commemorate the first issue of “Zenger’s paper”—that being the place where the Popular party won the election (in spite of Cosby’s attempt to rig it) that was the feature story on November 5, 1733. The New York Public Library participated in the celebrations of 1933 by giving an exhibition of its Zenger material. In January of 1934 Senator Borah read into the _Congressional Record_ the words from a tablet which the New York Bar Association set up to the memory of Andrew Hamilton: the inscription mentions how Hamilton came from Philadelphia to defend Peter Zenger:

and thus early in the history of the colony of New York, in connection
with the events out of which the accusation arose, contributed to the
foundation and the subsequent establishment in the American Colonies
and the United States of America of the now cherished principles of
constitutional liberty, freedom of the press, independence of the
judiciary, independence of the bar, freedom of elections and
independence of the jury.

These words Senator Borah considered of such moment to the American people and their government that they ought to be permanently enshrined in the proceedings of the national legislature—and so they are.

Fittingly enough, New York City paid the final tribute to one of her great sons. In 1953 was established the John Peter Zenger Memorial Room. Located in the old Sub-Treasury Building, which stands on the site of the City Hall in which Zenger was first imprisoned and then tried, the Memorial Room depicts various scenes from the life and career of the German immigrant who looms so large in the history of our journalism and of our free institutions.

This tribute does not take Peter Zenger out of living history to place him in a museum. Rather does it emphasize the truth that his memory will never die as long as American democracy survives. Interest in his trial should never flag if only because freedom of the press is not something that can be taken for granted. In our time the Communist and Fascist challenges have compelled us to go back to our national origins to justify our way of life. That way of life stands or falls with the right of journalists to criticize the government. We cannot afford to ignore or slur over the printer and his colleagues who first insisted on independence in publishing the news, put their principle into practice, produced a great newspaper that magnificently vindicated them, defended their newspaper in the teeth of official condemnation and judicial indictment, and were so obviously in the right that a jury of their fellow citizens upheld them in spite of a hostile court. Peter Zenger was never more of a portent and a precedent than he is today.

3. The Text

This edition of the trial is, like all others, based on _A Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the New York Weekly Journal_, which was edited by James Alexander and printed by the Zenger press in 1736.

Alexander’s is the only authentic version, for he was the sole person close to the affair who undertook to prepare a written text. He was in this, as in so many other ways, the formal apologist for his side. A rival edition would have been logical, and could easily have been produced by the men of the prosecution, but they never saw fit to attempt their own vindication.

Indeed, Attorney General Bradley declined even to participate in publication, withholding his notes and his brief when the Zenger camp asked to see them, refusing any kind of advice, comment, correction, or even objection; obviously because, staggered and humiliated by the acquittal, he was in no mood to help embalm his courtroom defeat in print. It is a pity that he allowed his case to go by default. He could not, of course, have changed the pleading as we find it set down, except possibly for minor points of emphasis or phraseology, but he might have made a more respectable showing than he does in the bare synopses to which the _Brief Narrative_ is reduced from time to time. True, he might have appeared in an even worse light; perhaps he was afraid that that was exactly what his opponents had in mind. Nevertheless, at the very least he would have allowed the public and posterity to view what happened from his angle of vision. He deliberately chose not to do so.

The defense had no inhibitions about publishing a full account of the trial. The cheering and shouting had scarcely died away before Alexander was at work copying out the arguments, arranging notes, gathering information from those who could fill in the gaps for him.

He was the obvious man for the job. Writer, journalist, and editor, he had been schooled in the task of integrating written material and in working up connecting links and explanatory passages as they were needed. Again, not only did he stand near the head of the legal profession, so that he was fully equipped to juggle the problem of libel, the textbook citations, and the technicalities and philosophy of the law (essentials in dealing with any such trial), but he had an unparalleled position at the center of the Zenger turmoil.

No one in New York knew more than James Alexander about how and why Peter Zenger came to be tried before the Supreme Court of the Colony. How could it have been otherwise when the _New York Weekly Journal_ was under fire, and Alexander was the _Journal_’s editor? He himself had approved, and perhaps written, the “libelous” issues on which the prosecution was based. He himself would have been in the dock as defendant instead of the printer if only the attorney general had been able to get him indicted.

Alexander had been a leader of the Popular party from the beginning of its struggle with Governor Cosby. He had conspired against the Governor, fought him in the Courts and through the press, and used every weapon to hand in an all-out effort to ruin him politically. There was hardly a dissident movement in New York with which Alexander was not allied as adviser or mentor. It was only natural that he should have been one of Zenger’s lawyers, for he understood as few others could just what the administration attack amounted to, and how a counterattack should be developed. It is not difficult to imagine the intelligence and the alertness with which he noted every word that was spoken at the trial. He must have been the perfect spectator if ever there was one.

And all this does not exhaust the depths of his familiarity with the incident. Until his disbarment he had been one of the counsel for the defense, which made it his duty to draw up a brief in preparation for his plea. He fulfilled his duty so well that when he was summarily removed by order of Chief Justice Delancey he was able to hand over to Andrew Hamilton a whole plan of campaign, and Hamilton (brought in unprepared and at the last moment) relied on it substantially throughout the proceedings.

It takes nothing from Hamilton, whose performance remains one of the classical things in the history of American law, that Alexander gave him the lead which he followed with such stunning success—that is, the decision to base Zenger’s defense on the truth of the _Journal_ articles, and on that basis to ask the jury to bring in a verdict of “Not guilty.” Alexander already held that guiding thread in his hand months before Hamilton appeared on the scene. (Not that he invented the idea, but he saw that it was the gambit to play.)

Hamilton’s own record of the trial went into the _Brief Narrative_, as is indicated by this passage from one of the letters that the Philadelphia barrister wrote to his friend and colleague in New York:

I have at last sent you my draft of Mr. Zenger’s trial.... I have had
no time to read it over but once since it was finished. I wrote it by
half-sheets and copied it as fast as I wrote. The meaning of all this
is to beg you to alter and correct it agreeable to your own mind.[36]

Thus Alexander even edited the text submitted by the defense attorney, and the latter’s acceptance of the result shows how faithfully it reflected the spoken word. Alexander clearly has given us the events of August 4, 1735, almost to the life.

His account had an enormous success in his own time. Lawyers, journalists, and political philosophers felt the impact of the acquittal as something new, either hopeful or foreboding, and there sprang up a market for the text in both America and England. Other editions began to appear to meet the demand, several of them published in London as early as 1738. The eighteenth century, when the problems involved were still fighting issues, was the golden age of Zenger republication. One of these versions, that issued by J. Almon of London in 1765, is generally available today in the form of a reprint prepared by the Work Projects Administration and sponsored by the California State Library for its series of “Occasional Papers” (1940).

The nineteenth century saw two particularly useful editions in T. B. Howell’s _State Trials_ (1816) and in Peleg W. Chandler’s _American Criminal Trials_ (1841), the first following Alexander almost word for word, the second modified and abridged. With the turn of the century Livingston Rutherfurd made available a literal reprint of the _Brief Narrative_ in his _John Peter Zenger, His Press, His Trial and a Bibliography of Zenger Imprints_ (1904). Fifty years later Frank Luther Mott did the same for our generation in _Oldtime Comments on Journalism_ (1954).

The first edition of any text (putting aside the corrupt or otherwise unreliable) always has a presumption in its favor. This is how the author saw his own work; this is the form in which he cast his own thoughts; this is the union of his own logic with his own rhetoric. Nothing else can begin to approach the authority and authenticity of his imprimatur. Consequently it is mandatory for later editors to justify tampering with the text instead of simply reproducing it.

The justification for the version here presented of James Alexander’s _A Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the New York Weekly Journal_ is that his text of 1736, however fine an achievement for his own time, is not quite so satisfactory after the lapse of two hundred years. Literary conventions have changed too much for so characteristic a piece of eighteenth-century writing to be allowed to remain as it is when modern standards of readability are in question. Moreover, in places it shows signs of haste, or possibly even of another writer at work. An instance is the opening passage, which falls far below Alexander’s best style, and may be by someone else, perhaps Zenger himself. Lastly, there is too much technical law for the lay reader. On all these counts the _Brief Narrative_ needs overhauling for our purposes.

This does not imply any distortion: the bulk of Alexander’s text is here just as it came from Zenger’s press. Most of the pamphlet is still perfectly clear, and it would be pointless to change anything simply for the sake of change. More than that, it is preferable to keep to the original wherever possible in order to catch something of the eighteenth-century atmosphere.

Clarity is the touchstone. Nothing has been allowed to stand that might trouble readers who are not familiar with obsolete usages. The simplest revision is in the spelling, where I use “trial” instead of “tryal,” “jail” instead of “gaol,” “public” instead of “publick,” etc. More important is the change in punctuation. Like most publications of its time, the _Brief Narrative_ shows a plethora of commas, colons, and semicolons, a type of punctuation that tends to produce long, complicated, tedious sentences. There are too many capitals and italics, which today not only irritate the eye but also lose their force by doing too much duty. In certain places the grammar calls for the addition or omission of words.

A comparison of the following passages, the first two from the original, the second pair from my edition of the text, will show exactly what changes these considerations have led to:

As There was but one Printer in the Province of _New-York_, that
printed a publick News Paper, I was in Hopes, if I undertook to
publish another, I might make it worth my while; and I soon found my
Hopes were not groundless: My first Paper was printed, _Nov. 5th_,
1733. and I continued printing and publishing of them, I thought to
the Satisfaction of every Body, 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, and afterwards
on the third _Tuesday_ of _October_, 1734. was again pleased to charge
the Grand Jury in the following Words. “_Gentlemen_; I shall
conclude....”

Be it remembered, that _Richard Bradly_, Esq: Attorney General of Our
Sovereign Lord the King, for the Province of _New-York_, who for Our
said Lord the King in this Part prosecutes, in his own proper Person
comes here into the Court of our said Lord the King, and for our said
Lord the King gives the Court here to understand and be informed, That
_John Peter Zenger_, late of the City of _New-York_, Printer, (being a
seditious Person; and a frequent Printer and Publisher of false News
and seditious Libels, and wickedly and maliciously devising the
Government of Our said Lord the King of this His Majesty’s Province of
_New-York_, under the Administration of His Excellency _William
Cosby_, Esq; Captain General and Governour, in Chief of the said
Province, to traduce, scandalize and vilify, and His Excellency the
said Governour, and the Ministers and Officers of Our said Lord, the
King of and for the said Province to bring into Suspicion and the ill
Opinion of the Subjects of Our said Lord the King residing within the
Province) the Twenty eighth Day of _January_, in the seventh Year of
the Reign of Our Sovereign Lord _George_ the second, by the Grace of
God of _Great-Britain_, _France_ and _Ireland_, King Defender of the
Faith, &c. at the City of _New-York, did falsly, seditiously and
scandalously_ print and publish, and cause to be printed and
published, a certain _false, malicious, seditious scandalous_ Libel,
entitled _The New-York Weekly Journal, containing the freshest
Advices, foreign and domestick_;

In the present edition, these passages read as follows:

As there was but one printer in the Province of New York who printed a
public newspaper, I 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....”

Be it remembered that Richard Bradley, Attorney General of the king
for the Province of New York, who prosecutes for the king in this
part, in his own proper person comes here into the Court of the king,
and for the king gives the Court here to understand and be informed:

That John Peter Zenger, of the City of New York, printer (being a
seditious person; and a frequent printer and publisher of false news
and seditious libels, both wickedly and maliciously devising the
administration of His Excellency William Cosby, Captain General and
Governor in Chief, to traduce, scandalize and vilify both His
Excellency the Governor and the ministers and officers of the king,
and to bring them into suspicion and the ill opinion of the subjects
of the king residing within the Province), on the twenty-eighth day of
January, in the seventh year of the reign of George the Second, at the
City of New York did falsely, seditiously and scandalously print and
publish, and cause to be printed and published, a certain false,
malicious, seditious, scandalous libel entitled _The New York Weekly
Journal_.

The major departure from Alexander’s text remains to be mentioned, since it is not involved in these passages—namely, the excision of some parts and the summarizing of others. Summaries are used when a faster pace seems advisable, for example at the start, when the preliminary maneuverings of the Governor are described. The excisions concern mainly the technicalities of the law. The long quotations from dusty legal tomes, the appeal to long-past precedents, can be of little interest to any except those trained in the law, and so only those passages have been retained that are necessary to the intelligibility of the arguments. But that in itself means a solid core, enough to show the dialectic of the lawyers moved, how the prosecution set up positions, and how the defense knocked them over.

Four fifths of the _Brief Narrative_ are here—including all the passages-at-arms between Andrew Hamilton on the one side, and Bradley and Delancey on the other, and all of the defense attorney’s splendid peroration on liberty that clinched the acquittal for Peter Zenger.

NOTE: Editorial summaries are enclosed within brackets. Other changes
are not indicated, and anyone interested in them should consult the
original. In particular, blank lines do not necessarily stand for the
deletion of material: they are there mainly for convenience in
following the case step by step.

Part Two. The Trial

1. Dramatis Personae

James Alexander, a lawyer for the Defendant
Richard Bradley, Attorney General
John Chambers, Counsel for the Defense
James Delancey, Chief Justice of the Supreme Court
Andrew Hamilton, Counsel for the Defense
Francis Harison, Recorder for the City of New York
Frederick Philipse, Associate Justice of the Supreme Court
William Smith, a lawyer for the Defendant
JOHN PETER ZENGER, the Defendant

2. Preliminaries

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.

3. Pleading

Before James Delancey, Chief Justice of the Province of New York, and Frederick Philipse, Associate Justice, my trial began on August 4, 1735, upon an information for printing and publishing two newspapers which were called libels against our Governor and his administration.

The defendant, John Peter Zenger, being called, appeared.

MR. CHAMBERS, _of counsel for the defense_. I humbly move, Your Honors, that we may have justice done by the sheriff, and that he may return the names of the jurors in the same order as they were struck.

MR. CHIEF JUSTICE. How is that? Are they not so returned?

MR. CHAMBERS. No they are not. For some of the names that were last set down in the panel are now placed first.

MR. CHIEF JUSTICE. Make that out and you shall be righted.

MR. CHAMBERS. I have the copy of the panel in my hand as the jurors were struck, and if the clerk will produce the original signed by Mr. Attorney and myself, Your Honor will see that our complaint is just.

MR. CHIEF JUSTICE. Clerk, is it so? Look upon that copy. Is it a true copy of the panel as it was struck?

CLERK. Yes, I believe it is.

MR. CHIEF JUSTICE. How came the names of the jurors to be misplaced in the panel?

SHERIFF. I have returned the jurors in the same order in which the clerk gave them to me.

MR. CHIEF JUSTICE. Let the names of the jurors be ranged in the order they were struck, agreeable to the copy here in Court.

Which was done accordingly; and the jury, whose names were as follows, were called and sworn: Thomas Hunt (Foreman), Harmanus Rutgers, Stanly Holmes, Edward Man, John Bell, Samuel Weaver, Andries Marschalk, Egbert van Borsom, Benjamin Hildreth, Abraham Keteltas, John Goelet, Hercules Wendover.

Mr. Attorney General opened the information, which was as follows:

MR. ATTORNEY. May it please Your Honors and you, Gentlemen of the Jury. The information now before the Court, and to which the defendant, Zenger, has pleaded “Not guilty,” is an information for printing and publishing a false, scandalous, and seditious libel in which His Excellency, the Governor of this Province, who is the king’s immediate representative here, is greatly and unjustly scandalized as a person that has no regard to law or justice; with much more, as will appear upon reading the information. Libeling has always been discouraged as a thing that tends to create differences among men, ill blood among the people, and oftentimes great bloodshed between the party libeling and the party libeled. There can be no doubt but you, Gentlemen of the Jury, will have the same ill opinion of such practices as judges have always shown upon such occasions. But I shall say no more at this time, until you hear the information, which is as follows:

Be it remembered that Richard Bradley, Attorney General of the king for the Province of New York, who prosecutes for the king in this part, in his own proper person comes here into the Court of the king, and for the king gives the Court her to understand and be informed:

That John Peter Zenger, of the City of New York, printer (being a seditious person; and a frequent printer and publisher of false news and seditious libels, both wickedly and maliciously devising the administration of His Excellency William Cosby, Captain General and Governor in Chief, to traduce, scandalize, and vilify both His Excellency the Governor and the ministers and officers of the king, and to bring them into suspicion and the ill opinion of the subjects of the king residing within the Province), on the twenty-eighth day of January, in the seventh year of the reign of George the Second, at the City of New York did falsely, seditiously, and scandalously print and publish, and cause to be printed and published, a certain false, malicious, seditious, scandalous libel entitled _The New York Weekly Journal_.