Accordingly, after about two hours’ delay in getting benches, chairs, and tables, they began to poll. Soon after one of those called Quakers, a man of known worth and estate, came to give his vote for the late judge. Upon this Forster and the two Fowlers, Moses and William, chosen by him to be inspectors, questioned his having an estate, and required of the sheriff to tender him the Book to swear in due form of law; which he refused to do, but offered to take his solemn affirmation, which by both the laws of England and the laws of this Province was indulged to the people called Quakers, and had always been practiced from the first election of Representatives in this Province to this time, and never refused. But the sheriff was deaf to all that could be alleged on that side; and notwithstanding that he was told by both the late Chief Justice and James Alexander, one of His Majesty’s Council and counsellor-at-law, and by William Smith, counsellor-at-law, that such a procedure was contrary to law and a violent attempt on the liberties of the people, he still persisted in refusing the said Quaker to vote; and in like manner did refuse seven and thirty Quakers more, men of known and visible estates. About eleven o’clock that night the poll was closed, and it stood thus:
| For the late Chief Justice | 231 |
| Quakers | 38 |
| In all | 269 |
| For William Forster | 151 |
| The difference | 118 |
| 269 |
So that the late Chief Justice carried it by a great majority without the Quakers.
The indentures being sealed, the whole body of electors waited on their new Representative to his lodgings with trumpets sounding and violins playing; and in a little time took their leave of him. Thus ended the Westchester election, to the general satisfaction.
New York, November 5.
On Wednesday the 31st of October the late Chief Justice, but new Representative for the County of Westchester, landed in this city about five o’clock in the evening at the ferry stairs. On his landing he was saluted by a general fire of the guns from the merchant vessels lying in the road; and was received by great numbers of the most considerable merchants and inhabitants of this city, and by them, with loud acclamations of the people as he walked the streets, conducted to the Black Horse Tavern, where a handsome entertainment was prepared for him at the charge of the gentlemen who received him. In the middle of one side of the room was fixed a tabulet with golden capitals, KING GEORGE, LIBERTY AND LAW.
Appendix II
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:
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.