exceptions were against the being of the court. Both Mr. Alexander and Mr. Smith denied that they were, and prayed the chief juftice to point to the place that contained fuch exceptions; and further added, that the court might well exift, tho' the commiffions of all the judges were void; which the chief justice confeffed to be true: and therefore they prayed again, that the order in that point might be altered; but it was denied. Upon this exclufion of Zenger's council, he petitioned the court to order council for his defence, who thereon appointed John Chambers, efq; who pleaded Not Guilty for him to the information. Mr. Chambers moved, that a certain day in the next term might be appointed for his trial, and for a truck jury; whereupon his trial was ordered to be on Monday the 4th of Auguft, and the court would confider till the first day of the next term, whether he fhould have a ftruck jury or not, and ordered that the fheriff fhould in the mean time, at Zenger's charge, return the freeholders book. On the 29th of July, 1735, being the first day of next term, the court were of opinion, That Zenger was entituled to have a ftruck jury. Accordingly, that evening at five of the clock, fome of his friends attended the clerk, for ftriking the jury; when, to their furprize, the clerk, inftead of producing the freeholders book, to ftrike the jury out of it, in their prefence, as ufual, produced a lift of forty-eight garbled perfons, whom, he faid, he had taken out of the freeholders book. Zenger's friends told him, that a great number of these perfons were not freeholders; that others were perfons holding commiffions and offices at the governor's pleasure; that others being of the late difplaced magiftrates of this city, muft be fuppofed to have refentment against the prifoner, for what he had printed concerning them; that others were the governor's baker, taylor, fhoemaker, candle maker, joiner, &c. that there would not remain a jury, if they ftruck out all the exceptionable men; and, according to the cuftom, they had only a right to strike out 12. But, finding no arguments could prevail with the clerk to strike the jury as ufual, Mr. Chambers applied to the court, next morning, and the court, upon his motion, ordered, That the 48 fhould be ftruck out of the freeholders book as ufual, in the prefence of the parties, and that the clerk fhould hear objections to perfons propofed to be of the 48, and allow of fuch exceptions as were juft. In pursuance of that order, a jury was that evening ftruck, to the fatisfaction of both parties. THE TRIA JOHN OF L JOHN PETER ZENGER, AT AUGUST 4, 1735. Ta fupreme court of judicature held for the province of New-York, PRESENT, The Hon. James De Lancey, Efq; chief juftice. The Hon. Frederick Philipfe, Efq; fecond juftice. The court being feated, Zenger was brought in. Mr. Chambers, council for the defendant. I humbly move your honours that we may have juftice done by the sheriff, and that he may return the names of the jurors in the fame order they were ftruck. Chief Juftice. How is that? Are they not fo returned ?. Mr. Ch. No, they are not: for fome of the names that were laft fet down in the pannel, are now placed firft. Ch. J. Make out that, and you shall be righted. Mr. Ch. I have the copy of the pannel in my hand, as the jurors were ftruck, and if the clerk will produce the original figned by Mr. Attorney and myself, your honour will see our complaint is juft. Ch. J. Clerk, is it fo? Look upon that copy: is it a true copy of the pannel as it was ftruck? Clerk. Yes, I believe it is. Ch. J. How came the names of the jurors to be mifplaced in the pannel? Sheriff. I have returned the jurors in the fame order in which the clerk gave them to me. Ch. J. Let the names of the jurors be ranged in the order they were ftruck, agreeable to the copy here in court. Which was done accordingly. And the jury, whose names were as follows, were called and fworn. Mr. Attorney-general opened the information, which was as follows: "New-York, fupreme court. "Of the term of January, in the eighth year of the reign of our fovereign lord king George Ild, &c. "New-York, fs. Befq; attorney-general of our fovereign E it remembered, that Richard Bradley, lord the king, for the province of New-York, who for our faid lord the king in this part profecutes, in his own proper perfon comes here into the court of our faid lord the king, and for our faid lord the king gives the court here to underftand and be informed,-that John Peter Zenger, late of the city of New-York, Printer, (being a feditious person, and a frequent printer and publisher of falfe news and feditious libels, and wickedly and maliciously devifing the government of our faid lord the king of this his majefty's province of NewYork, under the administration of his excellency William Cofby, Efq; captain-general and governor in chief of the faid province, to traduce, fcandalize and vilify; and his excellency the faid governor, and the minifters and officers of our faid lord the king of and for the faid province to bring into fufpicion and the ill opinion of the fubjects of our faid lord the king refiding within the faid province) the twenty-eighth day of January, in the feventh year of the reign of our fovereign 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 falfly, feditiously and fcandaloufly print and publish, and cause to be printed and published, a certain falfe, malicious, feditious, scandalous libel, intituled, the New-York Weekly Journal, containing the fresheft advices foreign and domeftic*; in which libel (of and concerning his excellency the faid governor, and the minifters and officers of our faid lord the king, of and for the faid province) among other things therein contained, are thefe words: Your appearance in print at laft gives a pleasure to many, tho' most wish you had come fairly into the open field, and not appeared behind retrenchments made of the supposed laws against libelling, and of what other men have faid and done before; thefe retrenchments, gentlemen, may foon be fhewn to you and all men to be weak, and to have neither law nor reason for their foundation, so cannot long ftand you in ftead: therefore, you had much better as yet leave them, and come to what the people of this city and *The Paffages quoted in this information are from only two of Zenger's newspapers, C province province (the city and province of New-York meaning) think are the points in queftion (to wit) They (the people of the city and province of New-York meaning) think, as matters now ftand, that their LIBERTIES and PROPERTIES are precarious, and that SLAVERY is like to be intailed on them and their pofterity, if fome paft things be not amended, and this they collect from many paft proceedings.' (Meaning many of the paft proceedings of his excellency the faid governor, and of the minifters and officers of our faid lord the king, of and for the faid province.) And the faid attorney-general of our faid lord the king, for our faid lord the king, likewife gives the court here to understand and be informed, That the said John Peter Zenger afterwards (to wit) the eighth day of April, in the feventh year of the reign of our faid lord the king, at the city of New-York aforefaid, did falfly, feditioufly and fcandaloufly print and publish, and cause to be printed and published, another falfe, malicious, feditious, and fcandalous libel, intituled, The New-York Weekly Journal, containing the freshest advices foreign and domeftic. In which libel, (of and concerning the government of the province of New-York, and of and concerning his excellency the faid governor, and the ministers and officers of our faid lord the king, of and for the said province) among other things therein contained, are these words, One of our neighbours (one of the inhabitants of New-Jersey meaning) being in company, obferving the ftrangers (fome of the inhabitants of New-York meaning) full of complaints, endeavoured to perfuade them to remove into Jerfey; to which it was replied, that would be leaping out of the frying-pan into the fire; for, fays he, we both are under the fame governor, (his excellency the faid governor meaning) and your affembly have fhewn with a witness what is to be expected from them: one that was then moving to Penfilvania, (meaning one that was then removing from New-York, with intent to refide at Penfilvania) to which place it is reported feveral confiderable men are removing (from New-York meaning) expreffed, in terms very moving, much concern for the circumstances of New-York, (the bad circumftances of the province and the people of New-York meaning) feemed to think them very much owing to the influence that fome men (whom he called tools) had in the adminiftration, (meaning the adminiftration of government of the faid province of New-York) faid he was now going from them, and was not to be hurt by any measures they should. take, but could not help having fome concern for the welfare of his countrymen, and fhould be glad to hear that the affembly affembly (meaning the general affembly of the province of New-York) would exert themfelves as became them, by fhewing that they have the intereft of their country more at heart, than the gratification of any private view of any of their members, or being at all affected by the fimiles or frowns of a governor, (his excellency the faid governor meaning) both which ought equally to be defpifed, when the intereft of their country is at stake. You, fays, he, complain of the lawyers, but I think the law itself is at an end, WE (the people of the province of New-York meaning) See men's deeds deftroyed, judges arbitrarily difplaced, New courts erected without confent of the legislature (within the province of New-York meaning) by which it seems to me, trials by juries are taken away when a governor pleafes, (His excellency the faid governor meaning) Men of known eftates denied their votes, contrary to the received practice, the best expofitor of any law: Who is then in that province (meaning the province of New-York) that call (can call meaning) any thing his own, or enjoy any liberty (liberty meaning) longer than thofe in the administration (meaning the administration of government of the faid province of New-York) will condefcend to let them do it, for which reason I have left it, (the province of New-York meaning) as I believe more will." To the great difturbance of the peace of the faid province of New-York, to the great scandal of our faid lord the king, of his excellency the faid governor, and of all others concerned in the adminiftration of the government of the faid province, and against the peace of our fovereign lord the king, his crown and dignity, &c. Whereupon the faid attorney-general of our faid lord the king, for our faid lord the king, prays the advisement of the court here, in the premises, and the due process of the law, against him the faid John Peter Zenger, in this part to be done, to answer to our faid lord the king of and in the premifes, &c. R. Bradley, attorney-general." Mr. Ch. To this information the defendant has pleaded not guilty, and we are ready to prove it. [Mr. Chambers was not pleased to favour Zenger with his notes, fo that for fear of doing him injuftice, his arguments cannot be fet down. But here Mr. Chambers fet forth very clearly the nature of a libel, the great allowances that ought to be made for what men fpeak or write: That in all libels there must be fome particular perfons fo clearly pointed out, that no doubt must remain about who is meant: That he was in hopes Mr. Attorney would fail in his proof, as to this point; C 2 and |