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