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:
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’sJournalswithout 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 theJournals, and which sets forththat 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.
James Alexander on Freedom of the Press
In 1737 the verdict of the Zenger trial was severely criticized in two anonymous letters to theBarbados Gazette, and these were reprinted by Andrew Bradford of Philadelphia. Alexander wrote a reply in thePennsylvania Gazette. His essay is an important historical document, although strangely overlooked by the historians of American democracy. It presents him as the most important theorist of freedom of the press this country has ever produced. These are some of the key passages:
In 1737 the verdict of the Zenger trial was severely criticized in two anonymous letters to theBarbados Gazette, and these were reprinted by Andrew Bradford of Philadelphia. Alexander wrote a reply in thePennsylvania Gazette. His essay is an important historical document, although strangely overlooked by the historians of American democracy. It presents him as the most important theorist of freedom of the press this country has ever produced. These are some of the key passages:
Freedom of speech is a principal pillar in a free government. When this support is taken away, the Constitution is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the actions of the magistrates.
These abuses of the freedom of speech are the excrescences of liberty. They ought to be suppressed; but to whom dare we commit the care of doing it? An evil magistrate, entrusted with a power to punish words, is armed with a weapon the most destructive and terrible. Under the pretense of pruning off the exuberant branches, he frequently destroys the tree.
Augustus Caesar, under the specious pretext of preserving the characters of the Romans from defamation, introduced the law whereby libeling was involved in the penalties of treason against the state. This established his tyranny; and for one mischief itprevented, ten thousand evils, horrible and tremendous, sprang up in the place.
Henry VIII, a prince mighty in politics, procured that act to be passed whereby the jurisdiction of the Star Chamber was confirmed and extended.... The subjects were terrified from uttering their griefs while they saw the thunder of the Star Chamber pointing at their heads. This caution, however, could not prevent several dangerous tumults and insurrections. For when the tongues of the people are restrained, they commonly discharge their resentments by a more dangerous organ, and break out into open acts of violence.
But to resume the description of the reign of Charles II. The doctrine of servitude was chiefly managed by Sir Roger Lestrange. He had great advantages in the argument, being licenser for the press, and might have carried all before him without contradiction if writings of the other side of the question had not been printed by stealth. The authors were prosecuted as seditious libelers.
In the two former papers the writer endeavored to prove by historical facts the fatal dangers that necessarily attend a restraint on freedom of speech and the liberty of the press: upon which the following reflection naturally occurs, viz.,THAT WHOEVER ATTEMPTS TO SUPPRESS EITHER OF THOSE, OUR NATURAL RIGHTS, OUGHT TO BE REGARDED AS AN ENEMY TO LIBERTY AND THE CONSTITUTION.
In civil actions an advocate should never appear but when he is persuaded the merits of the cause lie on the side of his client. In criminal actions it often happens that the defendant in strict justice deserves punishment; yet a counsel may oppose it when a magistrate cannot come at the offender without making a breach in the barriers of liberty and opening a floodgate to arbitrary power. But when the defendant is innocent and unjustly prosecuted, his counsel may, nay ought to, take all advantages and use every stratagem that his skill, art, and learningcan furnish him with. This last was the case of Zenger at New York, as appears by the printed trial and the verdict of the jury. It was a popular cause. The liberty of the press in that Province depended on it. On such occasions the dry rules of strict pleading are never observed. The counsel for the defendant sometimes argues from the known principles of law, then raises doubts and difficulties to confound his antagonist, now applies himself to the affections, and chiefly endeavors to raise the passions. Zenger’s defense is to be considered in all those different lights.
Upon the whole: To suppress inquiries into the administration is good policy in an arbitrary government. But a free Constitution and freedom of speech have such a reciprocal dependence on each other that they cannot subsist without consisting together.
[1]Cadwallader Colden,History of William Cosby’s Administration as Governor of the Province of New York, and of Lieutenant-Governor George Clarke’s Administration through 1737(New York Historical Society Collections, 1935), p. 286.[2]Documents Relative to the Colonial History of the State of New York, ed. E. B. O’Callaghan (Albany, 1853-87), V, 937.[3]William Smith,The History of the Late Province of New York, from Its Discovery to the Appointment of Governor Colden in 1762(New York, 1829-30), II, 3.[4]Livingston Rutherfurd,John Peter Zenger, His Press, His Trial and a Bibliography of Zenger Imprints(New York, 1904), p. 15.[5]N.Y. Col. Docs., V, 949.[6]Colden,op. cit., p. 298.[7]N.Y. Col. Docs., V, 955.[8]Colden,op. cit., pp. 298-299.[9]Ibid., p. 313.[10]New York Gazette, November 5, 1733.[11]Ibid., January 7, 1734.[12]Ibid., March 18, 1734.[13]N.Y. Col. Docs., V, 940.[14]Documents Relating to the Colonial History of the State of New Jersey, ed. William A. Whitehead (Newark, 1880-1928), V, 359.[15]Ibid., V, 360.[16]N.Y. Col. Docs., VI, 21.[17]Ibid., VI, 5.[18]New York Weekly Journal, January 21, 1734.[19]Ibid., January 28, 1734.[20]New York Gazette, February 4, 1734.[21]New York Weekly Journal, November 26, 1733.[22]Ibid., December 31, 1733.[23]New York Gazette, April 1, 1734.[24]Colden,op. cit., p. 323.[25]N.Y. Col. Docs., V, 978.[26]Ibid., V, 975.[27]Ibid., V, 976.[28]Ibid.[29]Ibid.[30]Ibid.[31]Ibid., V, 984.[32]The Papers of Lewis Morris, Governor of the Province of New Jersey from 1738 to 1746, ed. William A. Whitehead (New York, 1852), pp. 22-23.[33]Ibid., pp. 24-25.[34]N.Y. Col. Docs., VI, 21.[35]Ibid., VI, 34-35.[36]Rutherfurd,op. cit., pp. 127-128.
[1]Cadwallader Colden,History of William Cosby’s Administration as Governor of the Province of New York, and of Lieutenant-Governor George Clarke’s Administration through 1737(New York Historical Society Collections, 1935), p. 286.
[2]Documents Relative to the Colonial History of the State of New York, ed. E. B. O’Callaghan (Albany, 1853-87), V, 937.
[3]William Smith,The History of the Late Province of New York, from Its Discovery to the Appointment of Governor Colden in 1762(New York, 1829-30), II, 3.
[4]Livingston Rutherfurd,John Peter Zenger, His Press, His Trial and a Bibliography of Zenger Imprints(New York, 1904), p. 15.
[5]N.Y. Col. Docs., V, 949.
[6]Colden,op. cit., p. 298.
[7]N.Y. Col. Docs., V, 955.
[8]Colden,op. cit., pp. 298-299.
[9]Ibid., p. 313.
[10]New York Gazette, November 5, 1733.
[11]Ibid., January 7, 1734.
[12]Ibid., March 18, 1734.
[13]N.Y. Col. Docs., V, 940.
[14]Documents Relating to the Colonial History of the State of New Jersey, ed. William A. Whitehead (Newark, 1880-1928), V, 359.
[15]Ibid., V, 360.
[16]N.Y. Col. Docs., VI, 21.
[17]Ibid., VI, 5.
[18]New York Weekly Journal, January 21, 1734.
[19]Ibid., January 28, 1734.
[20]New York Gazette, February 4, 1734.
[21]New York Weekly Journal, November 26, 1733.
[22]Ibid., December 31, 1733.
[23]New York Gazette, April 1, 1734.
[24]Colden,op. cit., p. 323.
[25]N.Y. Col. Docs., V, 978.
[26]Ibid., V, 975.
[27]Ibid., V, 976.
[28]Ibid.
[29]Ibid.
[30]Ibid.
[31]Ibid., V, 984.
[32]The Papers of Lewis Morris, Governor of the Province of New Jersey from 1738 to 1746, ed. William A. Whitehead (New York, 1852), pp. 22-23.
[33]Ibid., pp. 24-25.
[34]N.Y. Col. Docs., VI, 21.
[35]Ibid., VI, 34-35.
[36]Rutherfurd,op. cit., pp. 127-128.
[1]William Hawkins was, during Zenger’s own period, probably the outstanding author of legal textbooks. Delancey’s quotations are from hisTreatise of the Pleas to the Crown(London, 1724), I, 192-193.[2]Henry Sacheverell, a Tory divine, attacked the Whig Ministry for not being Royalist or High Church enough. He was tried for seditious libel and found guilty (1710), but his case was instrumental in the decline of the Whigs and the rise of the Tories under Queen Anne. See G. N. Clark,The Later Stuarts(Oxford, 1940), pp. 216-217.[3]Gilbert Burnet, Bishop of Salisbury, was the historian of his time as well as one of its most controversial ecclesiastico-politicians. His pastoral letter sounds innocuous enough now, but his enemies in Parliament impugned it as too Royalist and too favorable to the Dissenters (1693). See Macaulay’sHistory of England, “Fireside” ed. (Boston and New York, 1910), IV, 464-466. Bishop Burnet was the father of New York’s Governor William Burnet.[4]Thomas Brewster, one of the many printers prosecuted during the reign of Charles II, was convicted (1663) of violating the licensing laws when he publishedThe Phoenix, or the Solemn League and Covenant, which defended the regicides who executed Charles I. For Chief Justice Robert Hyde’s excoriating summing up, see J. W. Willis-Bund,A Selection of Cases from the State Trials(Cambridge, 1882), II, 415.[5]Sir John Holt, one of the great chief justices in the history of British law, handed down numerous important rulings on the subject of libel. See Fredrick Seaton Siebert,Freedom of the Press in England, 1476-1776(Urbana, Ill., 1952),passim.[6]John Tutchin, publisher of theObservator, made broad charges of treason and corruption against the government, and was tried in a court presided over by Chief Justice Holt (1704). See Siebert,op. cit., p. 275.[7]William Fuller was one of the notorious impostors who abounded in England at the time of the Popish Plot. His grossly fictitious account of a sinister scheme to restore the Stuarts was exposed by the House of Commons (1692), and he was promptly arrested, prosecuted, and convicted. Macaulay has a good description of the Fuller incident,op. cit., pp. 280-289.[8]These ecclesiastics, led by William Sancroft, Archbishop of Canterbury, refused to promulgate from their pulpits the Declaration of Indulgence by which James II would have granted freedom of worship to his subjects. The Seven Bishops argued that he was attempting to exercise a dispensing power that the crown did not possess. They were prosecuted before Parliament, but acquitted (1688). See Clark,op. cit., pp. 120-121.[9]Francis Nicholson, a stormy petrel among colonial administrators, was Governor of Virginia at the time of this episode (1704). His intended victim was John Monroe, a clergyman of the Church of England. The information against Monroe is in theExecutive Journals of the Council of Virginia(Richmond, 1927), II, 451-452.[10]Laurence Echard, Tory divine and historian, wrote the bitterly anti-WilliamiteHistory of the Revolution of 1688. See Eugene Lawrence,Lives of the British Historians(New York, 1855), I, 312-315.[11]Paul de Rapin de Thoyras, although a Frenchman, became the foremost authority on English history. HisHistoire d’Angleterreappeared in 1723, and long remained the standard work on the subject, influencing a whole generation of British historians including Hume. See Lawrence,op. cit., I, 226-229.[12]Marcus Brutus, one of the assassins of Julius Caesar, is most familiar to the English-speaking world as Shakespeare’s “noblest Roman of them all.” Hamilton’s anecdote is based on the laudatory picture of the man drawn in Plutarch’sLives.[13]Lucius Junius Brutus was the Roman patriot who, according to legend, led the revolt that drove out Tarquin the Proud and put an end to the Kings of Rome. The story of his execution of his sons is told repeatedly by the Roman historians, the most familiar source being Livy’sHistory of Rome, bk. I.[14]John Hampden occupies a special niche in British history as the man who refused to pay the Ship Money levied by Charles I for the building of a fleet (1637). His defiance of the crown caught the imagination of later generations as a major step toward the development of parliamentary government in England. See George Macaulay Trevelyan,England Under the Stuarts(19th ed., London, 1947), p. 152.
[1]William Hawkins was, during Zenger’s own period, probably the outstanding author of legal textbooks. Delancey’s quotations are from hisTreatise of the Pleas to the Crown(London, 1724), I, 192-193.
[2]Henry Sacheverell, a Tory divine, attacked the Whig Ministry for not being Royalist or High Church enough. He was tried for seditious libel and found guilty (1710), but his case was instrumental in the decline of the Whigs and the rise of the Tories under Queen Anne. See G. N. Clark,The Later Stuarts(Oxford, 1940), pp. 216-217.
[3]Gilbert Burnet, Bishop of Salisbury, was the historian of his time as well as one of its most controversial ecclesiastico-politicians. His pastoral letter sounds innocuous enough now, but his enemies in Parliament impugned it as too Royalist and too favorable to the Dissenters (1693). See Macaulay’sHistory of England, “Fireside” ed. (Boston and New York, 1910), IV, 464-466. Bishop Burnet was the father of New York’s Governor William Burnet.
[4]Thomas Brewster, one of the many printers prosecuted during the reign of Charles II, was convicted (1663) of violating the licensing laws when he publishedThe Phoenix, or the Solemn League and Covenant, which defended the regicides who executed Charles I. For Chief Justice Robert Hyde’s excoriating summing up, see J. W. Willis-Bund,A Selection of Cases from the State Trials(Cambridge, 1882), II, 415.
[5]Sir John Holt, one of the great chief justices in the history of British law, handed down numerous important rulings on the subject of libel. See Fredrick Seaton Siebert,Freedom of the Press in England, 1476-1776(Urbana, Ill., 1952),passim.
[6]John Tutchin, publisher of theObservator, made broad charges of treason and corruption against the government, and was tried in a court presided over by Chief Justice Holt (1704). See Siebert,op. cit., p. 275.
[7]William Fuller was one of the notorious impostors who abounded in England at the time of the Popish Plot. His grossly fictitious account of a sinister scheme to restore the Stuarts was exposed by the House of Commons (1692), and he was promptly arrested, prosecuted, and convicted. Macaulay has a good description of the Fuller incident,op. cit., pp. 280-289.
[8]These ecclesiastics, led by William Sancroft, Archbishop of Canterbury, refused to promulgate from their pulpits the Declaration of Indulgence by which James II would have granted freedom of worship to his subjects. The Seven Bishops argued that he was attempting to exercise a dispensing power that the crown did not possess. They were prosecuted before Parliament, but acquitted (1688). See Clark,op. cit., pp. 120-121.
[9]Francis Nicholson, a stormy petrel among colonial administrators, was Governor of Virginia at the time of this episode (1704). His intended victim was John Monroe, a clergyman of the Church of England. The information against Monroe is in theExecutive Journals of the Council of Virginia(Richmond, 1927), II, 451-452.
[10]Laurence Echard, Tory divine and historian, wrote the bitterly anti-WilliamiteHistory of the Revolution of 1688. See Eugene Lawrence,Lives of the British Historians(New York, 1855), I, 312-315.
[11]Paul de Rapin de Thoyras, although a Frenchman, became the foremost authority on English history. HisHistoire d’Angleterreappeared in 1723, and long remained the standard work on the subject, influencing a whole generation of British historians including Hume. See Lawrence,op. cit., I, 226-229.
[12]Marcus Brutus, one of the assassins of Julius Caesar, is most familiar to the English-speaking world as Shakespeare’s “noblest Roman of them all.” Hamilton’s anecdote is based on the laudatory picture of the man drawn in Plutarch’sLives.
[13]Lucius Junius Brutus was the Roman patriot who, according to legend, led the revolt that drove out Tarquin the Proud and put an end to the Kings of Rome. The story of his execution of his sons is told repeatedly by the Roman historians, the most familiar source being Livy’sHistory of Rome, bk. I.
[14]John Hampden occupies a special niche in British history as the man who refused to pay the Ship Money levied by Charles I for the building of a fleet (1637). His defiance of the crown caught the imagination of later generations as a major step toward the development of parliamentary government in England. See George Macaulay Trevelyan,England Under the Stuarts(19th ed., London, 1947), p. 152.
[1]SeeAppendix I.[2]Peter Zenger is the ostensible narrator throughout.
[1]SeeAppendix I.
[2]Peter Zenger is the ostensible narrator throughout.
Chandler, Peleg W.American Criminal Trials(New York, 1841).
Howell, T. B.State Trials(London, 1816).
Mott, Frank Luther.Oldtime Comments on Journalism(Columbia, Mo., 1954).
Rutherfurd, Livingston.John Peter Zenger, His Press, His Trial and a Bibliography of Zenger Imprints(New York, 1904).
Documents Relating to the Colonial History of the State of New Jersey, ed. William A. Whitehead (Newark, 1880-1928).
Documents Relative to the Colonial History of the State of New York, ed. E. B. O’Callaghan (Albany, 1853-87).
New York Gazette, 1732-36.
New York Weekly Journal, 1732-36.
Colden, Cadwallader.History of William Cosby’s Administration as Governor of the Province of New York, and of Lieutenant-Governor George Clarke’s Administration through 1737(New York Historical Society Collections, 1935).
Goodwin, Maud Wilder.Dutch and English on the Hudson(New Haven, Conn., 1919).
History of the State of New York, ed. A. C. Flick (New York, 1933).
Osgood, Herbert L.The American Colonies in the Eighteenth Century(New York, 1924).
Smith, William.The History of the Late Province of New York, from Its Discovery to the Appointment of Governor Colden in 1762(New York, 1829-30).
Cobb, Sanford.The Story of the Palatines(New York, 1897).
Hildeburn, Charles R.Sketches of Printers and Printing in Colonial New York(New York, 1895).
McMurtrie, Douglas.A History of Printing in the United States(New York, 1936).
Rutherfurd, Livingston.Op. cit.
Thomas, Isaiah.The History of Printing in America, with a Biography of Printers and an Account of Newspapers(Worcester, Mass., 1810).
Wroth, Lawrence C.A History of Printing in Colonial Maryland, 1686-1776(Baltimore, 1922).
Bleyer, William Grosvenor.Main Currents in the History of American Journalism(Boston, 1927).
Cheslaw, Irving.John Peter Zenger and His, “New York Weekly Journal”(New York, 1952).
Cook, Elizabeth Christine.Literary Influences in Colonial Newspapers(New York, 1912).
Emery, Edwin, and William Ladd Smith.The Press and America(New York, 1954).
Hudson, Frederic.Journalism in the United States from 1690 to 1872(New York, 1873).
Jones, Robert W.Journalism in the United States(New York, 1947).
Kobre, Sidney.The Development of the Colonial Newspaper(Pittsburgh, 1944).
Lee, James Melvin.History of American Journalism(Boston, 1917).
Morris, Richard B.Fair Trial(New York, 1952).
Mott, Frank Luther.American Journalism, a History of Newspapers in the United States through 260 Years: 1690-1950(New York, 1950).
Payne, George Henry.History of Journalism in the United States(New York, 1920).
Rutherfurd, Livingston.Op. cit.
Akers, Dwight.The High Crimes of Colonel Mathews(Goshen, N. Y., 1954).
Chenery, William L.Freedom of the Press(New York, 1955).
Goebel, Julius, Jr., and T. Raymond Naughton.Law Enforcement in Colonial New York(New York, 1944).
Hamlin, Paul.Legal Education in Colonial New York(New York, 1939).
Keys, Alice.Cadwallader Colden, a Representative Eighteenth Century Official(New York, 1912).
Konkle, Burton Alva.The Life of Andrew Hamilton, 1676-1741, “The Day-Star of the American Revolution”(Philadelphia, 1941).
The Papers of Lewis Morris, Governor of the Province of New Jersey from 1738 to 1746, ed. William A. Whitehead (New York, 1852).
Siebert, Fredrick Seaton.Freedom of the Press in England, 1476-1776(Urbana, Ill., 1952).
Swindler, William F.Problems of Law in Journalism(New York, 1955).
Thayer, Frank.Legal Control of the Press(Chicago, 1944).
Crossman, Ralph L. “The Legal and Journalistic Significance of the Trial of John Peter Zenger,”Rocky Mountain Law Review, X (1938), 258-268.
Paltsits, V. H. “Some Recent Manuscript Accessions,”Bulletin of the New York Public Library, XLIV (1940), 523-526.
Price, Warren C. “Reflections on the Trial of John Peter Zenger,”Journalism Quarterly, XXXII (1955), 161-168.
“Publications Relating to New York Affairs under Governor Cosby,”Bulletin of the New York Public Library, II (1898), 249-255.
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