The Trial of Peter Zenger

by Unknown

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.]