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The Complaint of James Alexander and William Smith to the Committee of the General Assembly of the Colony of New-York, &c.

Mr. Chairman;

I. IT is with the utmost Regret, that we attend this Com­mittee in the Quality of Complainants; but the Matter of it too nearly affects us and the Liberties of this Country, to be buried in Silence. Had our personal Interests been solely concerned, we might have rested in a patient Expectation of a personal Remedy in some other Way: But when the Liberties of a Country are at Stake, and the Civil Enjoyments of a People sap'd at the very Foundation of them, it behoves every Man that loves his Country to cry out and give publick Warning of the Danger. This Duty incum­bent upon all, engages us in particular, to inform you, That in the Term of April last, we, in the Case of John Peter Zenger, then depending in the Supream Court, filed Exceptions to the Commissions of the Justices there: The Tenour whereof follows.

The Attorney General, against John Peter Zenger. Upon an Information for a Misdemeanour.

Exceptions humbly offered by John Peter Zenger, to the Power of the Honourable James De Lancey, Esq to judge in this Cause.

The Defendant comes and prays Hearing of the Commission, by Virtue of which the Honourable James De Lancey, Esq claims the Power and Au­thority to judge in this Cause, and it is read unto him in these Words;

GEORGE the second, by the Grace of God, of Great Britain, France & Ireland. King, Defender of the Faith, &c. To Our trusty & welbeloved James De Lancey, Esq Greeting We reposing especial Trust & Confidence in your Integrity, Ability & Learning, have assigned, constituted and appointed, and We do by these Presents assign, constitute and appoint you the said James De Lancey, to be Chief Justice in and over our Province of New-York, in America, in the Room of Lewis Moris, Esq Gi [...]ing and by these Presents gran [...]ng unto you, full Power and lawful Authority, to hear, try and determine all Pleas whatsoever, civil, criminal and [...]i [...]t, according to the Laws, Statutes and Customs of Our Kingdom of England, and the Laws and Usages of Our said Province of New-York, [...] [...]ing repugnant thereto, and Execution of all Judgments of [...] said Court to award, and to make such Rules and Orders in the said Court, as may be found convenient and useful, and as near as may be a­greeable to the Rules and Orders of Our Courts of King's Bench, Common Pleas, and Exchequer in Eng­land. To have hold and enjoy the said Office or Place of Chief Justice in and over Our said Province, with all and singular the Rights, Priviledges Profits Advantages, Salaries, Fees and Perquisites unto the said Place belonging, or in any Ways appertaining, in as full and ample Manner as any Person heretofore, Chief Justice of Our said Province bath held and en­joyed, or of Right ought to have held and enjoyed the same, To you the said James De Lancey, for and DURING OUR WILL AND PLEASURE. In Testimony whereof We have caused these Our Letters to be made Patent, and the great Seal of Our said Pro­vince of New-York to be hereunto affixed. Witness. Our trusty and welbeloved William Cosby, Esq Our Captain General and Governour in Chief of Our Pro­vinces of New-York, New-Jersey, and Terri­tories thereon depending in America, Vice Admiral of the same, & Colonel in Our Army, &c. at Fort George in New-York, the Twenty first Day of August, in the seventh Year of Our Reign, & Anno Domini, 1733.

Which being read and heard, the said John Peter Zenger, by Protestation not confessing nor submit­ing [Page 2] to the Power of any other Person to judge in this Cause, doth except to the Power of the Honourable James De Lancey, Esq aforesaid, to judge in this Cause, by Virtue of the Commission, afore­said, for these Reasons, viz.

1st. For that the * Authority of a Judge of the King's Bench, in that Part of Great Britain called England, by which the Cognizance of this Cause is claimed, is by the said Commission granted to the Honourable James De Lancey, Esq aforesaid, only during Pleasure; whereas that Authority (by a Statute in that Case made and provided) ought to be granted during good Behaviour.

2d. For that also by the said Commission, the Ju­risdiction and * Authority of a Justice of the Court of Common Pleas at Westminster, in that Part of Great Britain, called England, is granted to the said James De Lancey, Esq which Jurisdiction and Au­thority, cannot be granted to, and exercised by, any one of the Justices of the King's Bench.

3d. For that the Form of the said Commission, is not founded on, not warranted by, the Common Law, nor any Statute of England, nor of Great Bri­tain, nor any Act of Assembly of this Colony.

4th. For that i [...] appears by the Commission afore­said, that the same is granted under the Seal of this Colony, by His Excellency William Cosby, Esq Governour thereof; and it appears not, that the same was granted, neither was the same granted, by and with the Advice and Consent of His Maje­sty's Council of this Province; without which Ad­vice and Consent, His said Excellency could not grant the same.

Wherefore, and for many other Defects in the said Commission, this Defendant humbly hopes, that the Honourable James De Lancey, Esq will not take Cognizance of this Cause, by Virtue of the Commission aforesaid.

  • James Alexander,
  • William Smith.
That such AUTHORITY is so granted, see Chief Justice De Lancey's Charge to the Grand Jury of the 15th of January, 1733.
That such AUTHORITY is so granted, see Chief Justice De Lancey's Charge to the Grand Jury of the 15th of January, 1733.

The Exception to the Commission of Mr. Justice Philipse was in these Words following, viz.

The Attorney General against John Peter Zenger. Upon an Information for a Misdemeanour.

Exceptions humbly offered by John Peter Zenger, to the Power of the Honourable Frederick Philipse, Esq to judge in this Cause.

The Defendant comes, and prays hearing of the Commission, by Virtue of which the Honourable Frederick Philipse, Esq claims the Power and Au­thority to judge in this Cause; and it is read unto him in these Words.

GEORGE, the second, by the Grace of God, of Great Britain, France and Ireland, King, Defen­der of the Faith, &c. To Our trusty and welbeloved Frederick Philipse, Esq Greeting: WHEREAS it is Our Care that Justice be duely administred to all Our Subjects within our Province of New-York, and Territories depending thereon in America; and We reposing especial Confidence in your Integrity, Ability and Learning, have assigned, constituted and appointed, and We do by these Presents assign, constitute and ap­point you the said Frederick Philipse, to be second Justice of Our Supream Court of Judicature for Our Province of New-York, in the Room of James De Lancey, Esq Giving and granting unto you the said Frederick Philipse full Power and Authority with Our other Justices of Our said Supream Court, to hear, try and determine all Pleas whatsoever, civil, crimi­nal and [...]i [...]t, according to the Laws, Statutes and Cu­stoms of Our Kingdom of England, and the Laws and Usages of Our said Province of New-York, not be­ing repugnant thereto, and Executions of all Judgments of the said Court to award, and TO ACT AND DO ALL THINGS WHICH ANY OF OUR JUSTICES OF EITHER BENCH OR [...]ARON OF THE EXCHEQUER IN OUR SAID KINGDOM OF ENGLAND MAY OR OUGHT TO DO; and also to assist in the making such Rules and Orders in Our said Court as shall be for the Good and Benefit of Our said Province, and as near as con­veniently may be to the Rules and Orders of Our said Courts in Our said Kingdom of England. TO HAVE HOLD AND ENJOY the said Office or Place of second Justice of Our said Supream Court in and over Our said Province of New-York; together with all and singular the Rights, Priviledges, Salaries, Fees, Perquisites▪ Profits & Advantages thereto now or at any Time heretofore belonging or in any ways of Right app [...]r­taining, unto You the said Frederick Philipse. FOR AND DURING OUR PLEASURE. In T [...]sti­mony whereof We have caused these Our Letters to be made Patent, and the great Seal of Our said Province of New-York to be hereunto affixed. Witness Our trusty and welbeloved William Cosby, Esq Our Captain General and Governour in Chief of Our Pro­vinces of New-York, New-Jersey and Territories thereon depending in America. Vice Admiral of the same, & Colonel in our Army, &c. At Fort George, in New-York, the Twenty first Day of August, in the seventh Year of Our Reign, Anno (que) Domini, 1733.

Which being read and heard, the said John Peter Zenger, by Protestation not confessing nor submitt­ing to the Power of any other Person to judge in this Cause, doth except to the Power of the Ho­nourable Frederick Philipse, Esq aforesaid, to judge in this Cause, by Virtue of the Commission afore­said, for these Reasons, viz.

1st. For that the Authority of a Judge of the King's Bench, in that Part of Great Britain, called England, by which the Cognizance of this Cause is claimed, is by the said Commission granted to the Honurable Frederick Philipse, Esq aforesaid, only during Pleasure; whereas that Authority (by a Statute in that Case made and provided) ought to be granted during good Behaviour.

2d. For that also by the said Commission▪ the Ju­risdiction and Authority of a Justice of the Court of Common Pleas at Westmi [...]ster, in that Part of Great Britain, called England, is granted to the said Fre­derick Philipse, Esq which Jurisdiction and Au­thority [Page 3] cannot be granted to, and excercised by, any one of the Justices of the King's Bench.

3d. For that the Form of the said Commission, is not founded on, nor warranted by, the Common Law, not any Statute of England, nor of Great Bri­tain, nor any Act of Assembly of this Colony.

4th. For that it appears by the Commission afore­said, that the same is granted under the Seal of this Colony, by His Excellency William Cosby, Esq Governour thereof, and it appears not, that the same was granted, neither was the same granted, by and with the Advice and Consent of His Maje­sty's Council of this Colony; without which Ad­vice and C [...]ns [...]nt, His said Excellency could not grant the same.

Wherefore, and for many other Defects in the said Commission, this Defendant humbly hopes, that the Honourable Frederick Philipse, Esq will not take Cognizance of this Cause, by Virtue of the Commission aforesaid.

  • James Alexander.
  • William Smith.

¶ 2. Upon filing these Exceptions, we expected to be heard, as it was our undoubted Right by Law to be. And in Justification of our Conduct, we of­fered to prove, That the Subject by Law has a Right to take such Exceptions, if be thinks the Commissions illegal. We also offered to prove, That the Exceptions taken were warranted by Law, and Valid. But the Judges were pleased to say, That they would neither bear us, nor allow the Exceptions: But (as we conceive) most arbitrarily and illegally caused to be entred in the Minutes of the Court, the following Order.

PRESENT, The Honourable James De Lancey, Esq Chief Justice. The Honourable Frederick Philipse, Esq Second Justice.

James Alexander Esq& William Smith, Attornies of this Court, having presumed (NOT­WITHSTANDING THEY WERE FOR WARNED BY THE COURT OF THEIR DIS­PLEASURE, IF THEY SHOULD DO IT) to sign, and having actually signed & put into Court, Exceptions in the Name of John Peter Zenger, thereby denying the Legality of the Judges their Commissions, tho' in the usual Form, AND THE BEING OF THIS SU­PREAM COURT. It is therefore ORDERED, That for the said CONTEMPT, the said James Alexander and William Smith be excluded from any further Practice in this Court, and that their Names be struck out of the Roll of Attornies of this Court.

per Cur. James Lyne, Cl.

Mr. Chairman;

¶ 3. This Order is the Ground of Our Complaint. There are sundry Things in it which weshall take Notice of, in order to entitle our selves to the Relief of this Honourable House: The publick Interest of this Colony is greatly concerned in the Consequences of this Order; and for our own Parts, we think it exceeding hard to be deprived of our Subsistance, meerly for having done our Duty.

¶ 4. This a surprizing Thing to us, that the Gentlemen who made this Or­der, could proceed the Length they have done. The good Opinion we were willing to entertain of them disposed us to think, That they would never have done their Country and us so great an Injury. Could any Man have thought, that they would have denyed the Subject a Liberty to take an Exception to their Commissions, when his Right to do so, is so clearly founded in Reason and Law? He must be but little acquainted with the Laws of England, who could pos­sibly make a Doubt, Whether the Subject had such a Right? But these Gentle­men, without Question, had seen that Matter fully treated of in the Case of Mr. V [...]n Dam, in his Plea to the Jurisdiction of the Justices of the Supream Court, to [...]oceed in a Course of Equity. The Argument on that Head had been de­livered to one or both of them in Manuscript, before the Day appointed for hearing thereof, and had been long printed before they made the abovesaid Order. In that Argument, from page 14, to 35, the Right of the Subject to take [Page 4] such Exception, is established upon such Principles as have not yet been shaken, nor do we suppose that the Reasons and Authorities there offered will ever be answered. The Substance of what is there printed, would have been repeat­ed in the Case of Zenger, had not these Gentlemen thought fit to CONDEMN us and the Exceptions UNHEARD. This surprizing Method of Conduct, is not to be warranted by the Practice of any Country, but where ARBITRARY POWER prevails, and where TYRANTS rule and SLAVES obey. How un­warrantable such a Precedent, in an English Court of Justice is, and what is the plain Tendency of it among a free People, needs but little Penetration to dis­cover.

¶ 5. Nothing can be more evident, than that by the Laws of England, the Subject may in all Courts plead to the Jurisdiction (12 Co. 53.) This was the Opinion of My Lord Coke; and if what that Oracle of the Law said, was true, it cannot but be esteemed a bold Act in our Judges, not only to deprive the Sub­ject of that Right, but also to inflict one of the most severe Punishments, for their modestly claiming it.

¶ 6. It is said in Capt. Streater's Case (State Tryals, * Vol. 1. pag. 750.) That our Fore-fathers left us a Law, by which we might demand Justice, and not be necessitated to make use of Friends to beg Justice; and in Proof of it quotes Mirrour, Chap. 3. § 6. ‘of Exceptions to the Power of a Judge, thus it is, Sir. I demand the Hearing and Sight of your Commission, by which you claim Ju­risdiction over me.

Anno 13 Edw. I. Chap. 3. When any Man is impleaded before any Justices, and doth alledge an Exception, praying that the Justices will allow it; which if they will not allow, &c. he shall require the Justices to put to their Seal, &c.

‘My Lord (says Capt. Streater) this Law of England is a Law of Freedom and a Law of Freeme and not of Slaves; it is a Law that setleth a Right in its Subjects.’

¶ 7. Thus has the Law and Liberty of the People, been always understood to be in our Mother Country. And in the same Book and Chap. cited by Capt. Streater, (Mirrour Chap. 3. § 6.) it is further said, ‘that the Party may plead thus: Sir, I appeal from this Commission, because it maketh no Mention of the Cause, for which I was brought to Judgment, or not of that Point; or, because you have no Cognizance in such a Point; or, because it is vicious, and that may be divers Ways, as if it be not Sealed with the King's Seal of the Chancery; for none is tyed to yield Obedience, according to the Laws and Customs of the Realm, to the King's Privy Seal, or to the Seal of the Exchequer, nor unto any other Seal, but only to the Seal which is assigned to be known of the common People, and espe­cially in Jurisdictions and original Writs, if not for the King only. Or it may be vicious, because the Seal is counterfeited or falsifyed; or, because the King is not named in the Writ, be not being out of the Kingdom, nor in Ward; or, because the Writ containeth Summons in the Action where it is personal; or, Attachment where the Action is mixt or real; or, because the Seal is not fastned to the Parch­ment, but one may remove it, and take it from it at his Pleasure; or, because the Writ was brought too late, or too soon; or, because it hath [...]ure, or Interlining, and Diversity of Hands and of Words, or false Latin; or, because the Writ is written upon Paper, or Parchment which is forbidden; or, for Default found in the [Page 5] Writ, as the Omission or Transposition of a Word, Syllable or Clause, as it is of abateable Writs; or, because the King dred before the Writ was brought; or, be­cause the Writ is false in the Day of the Date; or, because the Commission re­quireth the Association of one who is not present; or, because the Writ was never sealed; or, because the Fact was not done within his Jurisdiction; or, in a Plea not there determinable; or, because the Judge bath not Power or Conusance, either of the Quality or the Quantity of the Thing. —’

This single Authority proves, not only the Right of the Subject to take such Exception to the Commissions of Judges; but also shews many Causes and Grounds for it. And what was here above 500 Years ago declared to be Law, was, in the Case of Mr. Van Dam, proved by many Reasons and Authorities, to have been the Law in all past Times; and also, that it still is the Right of the Subject, and the Law of the Land to this very Day.

¶ 8. But as the Cause of Mr. Van Dam was a Civil Cause, and the Examples there given, to prove the Right of the Subject to plead to the Jurisdiction, and to take Exception to a Judge's Commission, are chiefly taken from Causes of the same Nature; therefore, to bring the Matter more home to the Case of our Client Zenger, we beg Leave to add here some modern Examples, even in cri­minal Causes, that prove the same Point. And the same Examples will also clearly prove, that a Council's signing such Plea, or Exception, which he thinks pertinent to his Client's Cause, cannot, consistent with Reason or Law, be termed a CONTEMPT; as has groundlessly been suggested against us in the aforesaid Order.

¶ 9. But we must first observe here, that it is a Rule in Pleading (as in Regula P [...]itandi 56) That all special Pleas (which those to the Jurisdiction particu­larly are) ought to be signed by Council, otherwise it is a sufficient Objection against them, (which Rule is exemplified in State Tryals, Vol. 3. pag. 229. and in Vol. 4. pag. 212, 213, 214.) From whence we may infer, that when a Plea to the Jurisdiction, made by the Advice of Council, is offered, or received, it consequently is to be esteemed signed by Council, tho' it is not expressly men­tioned, to be signed by Council.

¶ 10. The first modern Case we shall mention, is the Case of Fitzbarris (State Tryals, Vol. 3. 229) who, in the Year 1681, was indicted of High Treason. That Man offered to plead to the Jurisdiction of the King's Bench (whose Powers our Judge [...] seem to claim by the common Law) but the Judges there were so far from thinking it a Contempt in him, to offer to plead to their Jurisdiction, that they assigned him several of the best Council in England to draw it, and gave him three Days Time for those Council to draw that Plea in, which Plea those Council drew, and brought it into the King's Bench, and prayed that it might be received, and it accordingly was received, and the Attor­ney General demurred to it, and the Council for the Prisoner joyned in Demurrer.

I believe none will say, that the Time in which this Example happened, was the most favourable to the Liberty of the Subject; yet even then it was look'd upon to be lawful to pread to the Jurisdiction of the King's Bench, the highest Court of Common Law of ordinary Jurisdiction in the Kingdom; and it was not esteemed any Crime or CONTEMPT for a Lawyer to sign and file such Plea.

¶ 11. A second Example to this Purpose, is the Case of the Lord Delamere (State Tryals, Vol. 4. 212.) who was tryed for High Treason, in the Year [Page 6] 1685. a Time when Arbitrary Power threatned the Destruction of the Consti­tution, and which brought about that Revolution, which soon followed. In that Case the Lord Delamere offered a Plea to the Jurisdiction of the Lord High Steward, and the Peers commissioned to try him; but his Plea was ob­jected to, for want of Councils Hand to it; whereupon he prayed to have Council assigned him, to put it in Form, and to argue it, which was agreed to be allowed him, if he had them ready; the Lord High Steward saying, If the Lord Delamere insists upon having his Council heard, it is not fit for me to re­fuse bearing what they can say; and afterwards, If you insist upon it to have your Council beard, GOD FORBID THAT I SHOULD DENY IT! Upon which it may be observed, that tho' this was in the Year 1685. three Years before the Revolution, & a very bad Time, yet even JEFFERYS then Lord High Stew­ard, was so far from thinking Council criminal to sign a Plca to the Jurisdic­tion, that it was allowed the Prisoner to get Council to do it, and it was ob­jected to, for being without Council's Hand; and least it may be supposed he might be Guilty of Condemning unheard, he, even JEFFERYS, in an apparent Horror at such a Thing, says, God forbid that I should deny to hear his Council!

¶ 12. But if it should be objected, that the Pleas in these two Cases, were not to the Judges Commissions, nor to the Being of those Courts, but tended only to oust or deprive those Courts, of the Jurisdiction of those particular Causes, we shall offer two other Examples.

In the Year 1686, two Years before the Revolution, King James the second erected High Commission Courts, and made the Lord Chancellor JEFFERYS and other Instruments of Arbitrary Power, whose Names are now infamous, to be the Judges thereof; before which Court, by Virtue of one of these Com­missions, the Bishop of London was cited, for not obeying the King's Com­mand to suspend Dr. Sharp, for preaching against Popery. When the Bishop appeared, he demanded a Copy of their Commission. JEFFERYS told him, it was on Record, and to be bought for a Penny in every Coffee-House in Town; the Bishop said, he had not seen it, and begged some Time to ad­vise with Council what to answer; and they, even they, gave him a Week, and in five Days afterwards, he came and begged a Fortnight more, and they also gave it to him, to advise with Council. At the Time last appointed, the Bishop came with four Council, and a Plea ready drawn, to their Jurisdiction, and offered that Plea; and the Bishop said, he was told, That to plead such Plea, was a Right every one has to make use of, when he finds it for his Advantage, and says, my Council tell me, That Tour Proceedings in this Court are directly contrary to the Statute Law, and are here to plead it, if Tour Lordships will admit them. Upon which the Lord Chancellor JEFFERYS said, We will neither hear Tour Lordship, nor Your Council, We are satisfied of the Legality of Our Commission.

Upon which it may be observed, That tho' those Council had advised, sign­ed, and were ready to argue in support of that Plea to their Jurisdiction, which was to their Com [...]issions and whole Power; yet it does not appear, that even this infamous Chan [...]llor JEFFERYS gave them the least harsh Word, for so doing (tho', to his p [...]petual Shame, he refused to hear the Bishop or his Coun­cil to that Plea,) but admitted those Council afterwards to argue upon the Merits of the Cause. This appears by Vol. 3. of Kennet's History of England, pag.. 458. &c. and State Tryals, Vol. 4. pag. 846. &c. and History of the Reign of the Stewards, 711.

¶ 13. The second of these Examples is in the Year 1687. one year before the Revolution, before the High Commissioners, Chancellor JEFFERYS, and [Page 7] others: The Case was thus; King James the 2d commanded the University of Cambridge to admit a Papist to the Degree of Master of Arts, which they refused to do; and for that Contempt were cited before the High Commission. They appeared by their Vice Chancellor, and eight of their Senate. Where­upon the Vice Chancellor prayed, and bad Time to answer, with Leave to put the Answer in Writing, and with Council, and by what Council be pleased. At the Time appointed they pleaded to the Jurisdiction of the Court, both as to that particular Case they were cited for, and as to the whole Power of the Court, by setting forth the Act of 16th of Charles the first, that enacted, that no such Court as that should be afterwards held. Which Plca was received, and read, and when read, the Chancellor JEFFERYS asked, if it was signed? Where­upon it was answered, Tes My Lord; and then the Matter was taken into Con­sideration for a Week: But it appears not by this Case, that even that wicked Man, the Chancellor JEFFERYS, ever so much as thought, that those Council acted amiss, for advising or signing of that, or the former Plea in the Bishop of London's Case: Tho' in the last Case, to the shame of that Court, JEFFERYS pronounced the Judgment of it, which was, That, as a Mark of His Majesty's and their Lordships DISPLEASURE, they thought fit to appoint, that the Vice Chan­cellor should be thenceforth deprived of that Office. All which appears in the 4th Vol. of the State Tryals, from pag. 250. to 259.

¶ 14. These Authorities, with what is referred to in the Argument of Mr. Van Dam's Council, are a full Proof, that it is by Law the Right of the Sub­ject to take Exception, either to the Jurisdiction of the Court, or the Commis­sion of a Judge. And if this be the Right of the Subject, how consistent is it with the GREAT CHARTER to deny it to him? It is said there, Nulli negabi­mus, nulli differemus Justitiam vel Rectum. We will deny no Man, we will delay to no Man, Justice or Right.

Now this Law was made our Birth-Right (see My Lord Coke's Comment. upon 2d Inst. 56.) And to observe this Law, not only the King, at His Coro­nation, but all his Judges of Common Law, are or ought to be sworn. And if this is the Subjects Right, what Judge, without Violation of his Oath, can deny it? And how can it, consistent with either Reason, Law or com­mon Sense, be termed a CONTEMPT to claim that Right? Or for Coun­cil to sign and file Exceptions in Consequence of that Right?

¶ 15. In the next Place we observe, that the Suggestion, in the said Order, That the Exception denys the Being of the Supream Court, is altogether without Truth and groundless. Had the Supream Court no other Foundation than the Judges Commissions, there might have been some Truth in that Suggestion. In such Case, to deny the Lawfulness of their Commissions, would be to deny the Being of the Court: But it is well known, that the Being of the Supream Court has a quite different Foundation.

¶ 16. It was, till lately, understood to have been founded on Ordinances, several of which have been made from Time to Time, either to give or con­tinue its Being, the last of which was published in the Supream Court, in the Presence, and by Order, of these Gentlemen, and bears date no longer ago than the 19th March, in the sixth Year of His present Majesty's Reign. But suppose it to exist or have its being by the Common Law, as some have lately imagined, and which seems to be Mr. Chief Justice's Opinion (see his Charge to the Grand Jury of 15th January, 1733. pag. 4. Gentlemen, — [whole Para­graph to] — now.) Yet in either Case, it doth not derive its Being from [Page 8] the Commissions of the Judges, but wholly from the Ordinance, or Common Law; and therefore to deny the Lawfulness of their Commissions, cannot, consistent either with Truth or Reason, be called a Denyal of the Being of the Supream Court.

¶ 17. Now the Exceptions deny only the Legality of the Judges Commis­sions, and neither affirm or deny any Thing, with respect to the Supream Court. But both special Matter pleaded, and the Conclusion, are express to that Commission, whereof Hearing was given, as will appear to any one that reads them. We insisted, that the Exceptions did not deny the being of the Supream Court, at the Time that the Order was published, and tho' Mr. De Lancey was pleased then to acknowledge (with great Truth) That the Court might well exist, tho' the Commissions of the Judges were unlawful; yet when we prayed, that the Order might be amended in that Point, our Request was not granted, but the Order was suffered to remain as it had been entred. Which Conduct in these Gentlemen, first in declaring that the Exception denyed the Being of the Supream Court, when it did not, and making it a Ground of so severe a Sentence; and afterwards, when this Matter was objected to them, and it was admitted, That the Court might exist, tho' all the Com­missions were unlawful (which of it self plainly implys, that the Denial of the Legality of the Commissions, was no Denial of the Being of the Supream Court) we say, after all this, still to continue that Suggestion, so plainly repugnant to Truth, as a Reason of their Sentence, carries with it a more heavy Imputation, than we wish we had Occasion to take Notice of.

¶ 18. Again, in the next place, we would humbly ask, whether any Thing can be more Arbitrary, than these Gentlemen's pretending to make the Notifi­cation of their Displeasure to be the Rule of our Conduct? Is not, or rather, ought not the Law to be the only Rule of their and our Duty? Indeed, had they received their Commissions from the French King, who assigns no other Reasons for his Mandates, Writs, or Commands, than, Car tel est notre Plaisir, or for such is our Pleasure; they might in this Point have been excused by the Example of their Master, and the Arbitrariness of his Government. But for Judges, pretending to act by Commission from the King of Great Britain, who could give no Authority, but to act according to Law, and who themselves were, or ought to have been sworn, to judge according to that Rule; for them, we say, to set up their Pleasure or Displeasure, as a Rule of Conduct, in the Supream Court of Common Law in this Country, and avowedly to make that any part of the Reason of so severe a Sentence, we believe is not to be paralleled by one Example within the British Dominions, unless in such Reigns as that of King James the second, and in such Courts as the High Commission Court, or Star Chamber, and by such Judges as the cruel JEFFERYS, and others, whose Names will be transmitted to the latest Posterity with Infamy and Re­proach. What can be more astonishing in a free Country, than for Judges in the Seat of Justice, executing the most sacred Trust that is delegated by Man­kind, who in the Execution of their Offices, ought to be divested of all Mo­tives either from Pleasure or Displeasure, Favour or Fear; who cannot suffer the least Mixture of these, to sway their Judgments, or influence their Deter­minations, without Violation of their Oath and sacred Trust; for Men, under such solemn Obligations, to do right to every Man, according to Law, for such Men, to make either their Pleasure or Displeasure, the Rule of their Conduct! — to own it without Blushing or Remorse! — nay, to record it in the Supream Court of this Province, as a Reason of so severe a Sentence! — It seems to us so shocking as to leave no Room for an Apology!

[Page 9] ¶ 19. These Gentlemen have been so unhappy, as either to have no Precedent to warrant their Proceedings, or, only such as are taken from the worst of Men, in the worst of Times. The Bishop of London's Exception, or Plea to the Jurisdic­ction of the High Commission Court, was indeed rejected and condemned un­ [...]rd: The Vice Chancellor of Cambridge was suspended from his Office, and the Displeasure of the Court i [...] assigned as a Reason of that Sentence. Doctor Fairfax, a Fellow of a Colledge at Oxford, for vive voce (not by Council) dis­puting the Authority of the High Commissioners, boldly to their Faces in Court, was first suspended, and afterwards when no Arts or Threats, in pub­lick or private, could perswade or force him to submit to their Authority, they struck out his Name from among the Fellows of the Colledge, and gave this for Reason of their so doing, viz. For as much as you have denyed the Authority of the Court, and have refused to obey the Bishop of Oxon, &c. And these are the nearest Precedents that we have hitherto found of such Proceedings. But he must be a great Stranger to the History of England, who does not know how the Injustice of these Proceedings was resented, and what an Influence they had upon the Revolution which soon followed: Yet in neither of the Cases cited, were the Council silenced or debarred of their Practice, for signing such Pleas or Exceptions. In this Point, our Judges seem to have acted beyond Example, and have done, perhaps, what no Judge of Common Law ever ventured to do before.

¶ 20. These Gentlemen, in that Point, we believe are truly an Original; they seem to have found out some new Law for this Young Country, and such as its ancient Mother Country has never heard of: They will not suffer their Commissions to be disputed or tryed, whether they are legal or not, tho' the Law requires their Commissions to be published, and the Hearing thereof gi­ven, for that very End: Indeed in this they acted not without a Precedent; The High Commission Judges, and some others that we could mention, acted in the same Manner. Sometime our Judges can say, that they have their Au­thority by the Law, (see Mr. De Lancy's Charge, 15th January, 1733.) But then they insist upon it, that we should take their Word for it, for they will let no Man examine that Point but themselves.

¶ 21. Is not this in consequence to say, We know our Authority to be so good, that We are incapable of erring in that Point? We know We are so impartial, tho' in our own Case, that all the Provisions for Appeal to superiour Judges, as to Us in this Point, are impertinent, needless and useless; and to Doubt of this, and to claim the Means of Appeal, which is the Right of the Subject from all other Judges ( [...] the dernier Resort, which We pretend not to be) is so high a Contempt of Our Know­ledge, that it deserves a Punishment next to Death, which depriving a Man of the Means of Living We know to be?

¶ 22. Thus the Right and Liberty of the Subject, in one of its most effen­tial Articles, is broke in upon; and that Remedy, which, by Law, is in every Man's Power, against an illegal Authority, entirely taken away: For, if a Commission issue to try my Life, not according to the Law of the Land, but by the Discretion or will of my Judges, and I may not except to that Commission, and shew it to be unlawful, what Security have I by the Great Charter, that I shall not loose my Life, but by the Verdict of my Peers? If a Commission Issue to take away my Estate, by the Discretion or Pleasure of a Court, if I may not except to that Commission, and shew it to be illegal, what Security can I have of a Tryal by Jury, and the Law of the Land? Many such Commis­sions [Page 10] as these have issued in Times past, witness the Commissions to the Presi­dent and Council of the North, &c. (4 Inst. 243.) which have produced much Rum and Confusion in the English Nation. What has been may be, and in all Probability will be, if the Example our Judges have given be drawn in­to Consequence. And if such a Commission should issue what Security has the Subject against being utterly ruined by it, if he may not be allowed his Excep­tion? And if he cannot take such Exception, but by the Help of a Lawyer, and his Lawyer cannot defend him against such illegal Commission, but with the Loss of his Livelihood, and the Ruin of his Family; how deplorable must the Case of the Subject be? How destitute and helpless! For what Lawyer will dare to undertake his Defence? And what Motive can induce him to it, when he knows. That the very Attempt to serve his Client, will have no other Effect than his own Ruin? What a Wound is given by this Arbitrary Proceeding, to the Liberties of this Country! In consequence of this Proceeding, Life, Liberty and Estate, are at once seized into the Hands of Arbitrary Power: For if the best Commission upon Earth is not to be disputed, and Lawyers must be silenced for daring to attempt it, then the very worst Commis­sion in the World may soon be obtruded upon a People. For, if it be a Crime to except to a good Commission, and so grievous a Penalty is annexed to the do­ing of it, who will dare to except to a bad one, when no Man can know, but the Judge may declare the most illegal Commission to be good? Such were the High Commissions granted in 1686, by King James the 2d. two Years before the Revolution, and such were they declared to be, by the Stature that gave King William the Crown. But yet Chancellor JEFFERYS, and the other High Commis­sioners, the Instruments of Arbitrary Power in that Day, had the Front to de­clare. We will neither bear you nor your Council in the Matter, Note that the Words be­tween these Marks [] were intended to be spoken, but were omitted by mistake. [we are sciently satisfied of the Legality of our Commissions, otherwise we would not be such Fools as to sit here; we know our Proceedings are according to what has been done formerly; we have an original Jurisdiction, or (in other Words of the same Meaning?) we have our Power from the Common Law.] And they barefacedly gave their Master's and their own DISPLEASURE, as Reasons for their Deter­minations. When Things come to that pass, then all Protection from the Law Ceases, and no Remedy against the greatest Injustice and Oppres­sion is left, but that which is natural, and which then was taken; we mean, The unalienable Right of the People, to defend themselves against their Destroyers. Tis from denying the Subject the Benefit and Priviledge of the Law, that In­surrections and Tum [...]l [...] have been often raised. Tis from such bold and dareing Attempts upon the Liberties of a People, that Revolutions have spring; and particularly the latest and most glorious in the British Nations, which pro­sured a Re-establishment of our ancient Rights, and secured their Continuance, by the Settlement of the Succession in the Illustrious House of Hanover.

¶ 23. How necessary therefore is it, that the Guardians of our Liberties, should, in the present Case, look diligently into the Causes of the general Dif­content, that prevails within this Colony, and in particular into this? And apply those Remedies to these Grievances, that art within their Power; Not only as they regard that Peace and Prosperity, which will naturally attend the secure Enjoyment of our Liberties, but as they would prevent the bitter Consequences that may follow the Neglect of so plain a Duty.

¶ 24. Tho' it is the undoubted Right of every Englishman, to call into Question the Commission of [...] Judge, yet it is a Maxim in our Law, That [Page 11] any Man may renounce (if he pleases) a Matter of Law in his Favour. Tis u­pon this Distinction, that our past Conduct, in respect of our different Clients, has been diversified. In the Supream Court we never advised an Exception but in one Case before, and that was in the Case of Mr. Van Dom, who excepted to the Power of the Judges to proceed according to a Course of E­quity. Here [...]ght also to have been said.— And after­wards excepted to Judge Philipse's Commission, soon after the Date of it, for Persons nearby the same with these in Zenger's Exception. We advised it then, because we thought that Exception necessary for his Safety, and the Good of the Country.

¶ 25. We advised Zenger's Exception for the like Reason; but we have al­ways omitted it, where we saw our Clients Safety did not require it. Mr. Van Dam's Exception would not be of any Service to Mr. Zenger, nor will Mr. Zenger's Exception be of any Service to any one that shall hereafter be prose­cuted in the same Manner, unless such Person will take such Exception in his own particular Case. We ever thought it lawfull for any of our Clients, to bring the Commissions of the Judges to the Touchstone of the Law: But we never thought it so necessary as in this Case. We conceived the Innocency of our Client, no sufficient Security, while we esteemed the Governour his Prosecutor, who had his Judges in his Power. We had too much Reason for Caution from the Conduct of the Chief Justice. We heard, how His Honour had vented his Displeasure against him, when he accidentally met him in the Streets, on a Sunday before his Arrest. We had been near Witnesses to sundry warm Charges, and moving Addresses, to several Grand Juries, plainly levelled against Zenger, and with Intention to procure his Country to Indict him. And we saw his Name amongst that Committee of Council, which 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 upon that Conference, and spoke much on that Occasion. We saw his Name among those who issu­ed that Order of the Council, which commanded the Magistrates of this City to attend the Burning of some of those Journals; and which sets forth, that they bad been condemned by the Council to be burnt by the Hands of the common Hang­man. We much doubted of the Legality of these Extraordinary Proceedings, of the Chief Justice, and the Rest of the Council. We saw the Chief Justice's Name, among th [...]e, who issued that Extraordinary Warrant, by which our Client was apprehended. We had seen his Want of Moderation, in demand­ing Security in Eight Hundred Pounds, when Zenger was brought before him, on his Habeas Corpus, tho' the Act only required Bail to be taken, according to the Quality of the Prisoner, and the Nature of the Offence, and tho' at the same Time, the poor Man had made Oath before him, That be was not worth Forty Pounds, besides the Tools of his Trade, and 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 even this before any Information in Form was lodged against him, As for Justice Philipse, we had been sold, 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 burning of Zenger's Papers; even before they were legally Condemned; and Addressing the Governour to issue a Proclamation, with 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 shew the Motives of our Conduct; had we not been obliged thereto, In Order to vindicate our selves we had much rather that they had been buri­ed [Page 12] in Silence: But under these many Forewarnings, what could we, what ought we to do for our Client? Surely every Thing that was lawfull and like­ly to contribute to his Safety. And in taking the Exception, we conceived some Benefit would accrue: For, had the Exception been allowed, the Depen­dence of the Judges on the Governour (which we thought dangerous to our Client) would be in some Measure removed, and the Judges have stood more indifferent between the real Parties; Had it been over-ruled, yet we had Reason to think, that it might have proved some Check to an exorbitant Stretch of Power; because, That if in the dernier RESORT, the Commissions had been judged illegal, any Abuse offered, after Exception taken, might have rendered the Judges, not only civilly, but criminally, answerable for their Conduct.

¶ 26. Thus either Way, some Advantage was expected, which would have been entirely lost, if the Validity of the Commissions had been admitted, by pleading to the Merits of the Cause, without taking the Exception. Hence, with a sincere Regard to the Safety of the Poor Man, whose Cause we had undertaken, we advised, and signed, and filed the Exceptions. And had we done otherwise, our Consciences must have reproached us, with a Breach of Trust, and Neglect of Duty: Yet neither the Lawfullness of the Action, nor the Uprightness of our Intention, could screen us from the Re­sentment of these Gentlemen. We might have been innocently mistaken, in supposing an Exception would lye, when it would not, or for Causes not suf­ficient; and by Law should have deserved no Censure for offering them. The Business of the Judges in such Case would have only been, to have over-ruled our Exceptions, and saved us the Benefit of them, in the last Resort, if we had thought they would have been of Service to us. But in this Case, whe­ther the Exceptions were valid or not, was no Ways determined. The Of­fence was in offering any Exception at all, and it is for this only that we are Sufferers. The honest Defence of Our Client in that Point, was Crime enough with these Judges, to merit what's next to a Capital Punishment. A respectful Proposal of a Matter of Law to their Judgment, that had a Tendency to bri­dle lawless Power, was by these Gentlemen treated, as Cause sufficient, to de­prive us at once of the Fruits of many Years hard and laborious Study, to dis­possess us of an extensive and profitable Practice.

¶ 27. It was then full two and Thirty Years, since one of us had first applied to the Study of the Law (a Time near equal to the whole Age of either of these Judges) and who for several Years had been one of the oldest Practitioners at the Barr here; the other of us did not want two Months of Ten Years standing there, and had had a good Share of Practice for several Years, before either of these Judges were known to have had any Knowledge of the Law, or pre­tended to have made it any Part of their Study. What hath been our Cha­racter and Reputation for Ability, of Integrity, in our Practice, and Morals, belongs not to us to declare: But we hope, our being employed in almost all the Causes within this Colony, of any Importance, that have depended for several Years last past, may, as to those Points, in some Measure, witness in our Favour. Yet no Regard to our Age, to the Experience of so long Practice▪ to our Innocency, our Integrity, or Abilities; no Concern for the Interest of our Clients, who had a Right to our Assistance; nor the publick Administra­tion of Justice, which demanded our Help; no Tenderness or Compassion for our Wives, our many Children, with which it hath pleased God to bless us, which as well as our selves, had a Right to be provided for, by our honest In­dustry, [Page 13] could withhold and restrain these Gentlemen, from exercising the most severe Act of Power, that perhaps has been ever committed.

¶ 28. We have not in all our Reading found, and believe these Gentlemen cannot produce, any Example of such a Conduct, from the History of England, in the worst of Times. They may indeed produce Examples of Silencing Attornies, for notorious Villany, or Ignorance, in their Profession. They may possibly also find some, and but few Examples of doing the like for other Grimes; as for Instance, one Brown, convicted of Lybelling, was fined 1000 Marks, and struck out of the Roll of Attornies: But (because this Crime being neither Villany nor Ignorance in his Profession) the Injustice of that Part of the Sentence was taken Notice of by the House of Commons, and for that, among other Arbitrary Acts, as the Hindring the Publishing of a weekly News Paper, and putting People to their Habeas Corpus to be bailed, without just Cause, and discountenancing the People in Petitioning the King for a Parlia­ment; They, in 1680, resolved to impeach the Judges, and did impeach Chief Justice Scrogs, the most guilty Person, and had they not been prorogued, and Chief Justice Scrogs displaced, and another put in his Room, before the House sat again, they probably would have prosecuted their Impeachment against him.

¶ 29. America possibly may furnish some Examples of the Silencing of At­tornies, as, we have heard, did happen in the Case of one Mr. Carter, in Parha­does, who was silenced by Governour Louther, a Man famous, not for his Vir­tues; and we have heard that Mr. Carter recovered several Thousand Pounds Damages in Westminster Hall, for that Arbitrary Act.

¶ 30. Note that the Information we had of those Circumstances in Ita­lick Letters, in this Paragraph, was not true; but the Paragraph will be, as we believe, agreeable to Truth, after the Italick Words are struck out. We have been since informed, that it was the Assembly of New­Jersey that complained of Lord Cornbury, and that Coll. Morris (then one of that Assembly) was the Drawer of the Complaint, and also that be went to England, against a then former Go ernour, at his own Expence, and was successfull; which Facts, we believe, gave rise to the Mistake in the Information we had of this Matter, and which Information we believed to be true, at the Times of our Complaint. We have heard also that Mr. GOR­DON was by the Lord CORNBURY silenced in NEW-JERSEY, when he was Governour of that and this Province, and that this Injury done to Mr. GORDON, made one of the Articles of Complaint against that Governour, which Coll. MORRIS took a Voyage to ENGLAND, at his own Expence to exhibit against him; at a Time when this Country groaned under the Weight of the Ar­bitrary Proceedings of that Governour and his In­struments; at which Time the People were made to dispair of Relief, by Reason of his great Inte­rest; And what was more, his being first Cousin to the then reigning Queen; But Coll. MORRIS proved successful, not withstanding all the Difficulties be bad to surmount: For, upon the Articles exhi­bited by him to Queen ANNE, against this Her near Relation, he was turned out with Disgrace; Queen ANNE declaring, That it should never be said, that she would countenance, even her nearest Relations, in oppressing her People; and nei­ther his Nobility, his great Interest▪ [...] his near Relation, to the Queen, did protect him, from the legal Suits of the Subjects here, whom he had injured. Upon which Suits, he lay near three Years in the Custody of the Sheriff of NEW-YORK, after the End of his Tyranny, as much despised as he had before been dreaded.

¶ 31. We believe this Province can afford no Example of such a Treatment, tho' there had been the same Occasion for it before this Time. We remember that in the Year 1725, in the Case between the French Church and Mr. Ron, [Page 14] Mr. David Jamison, Mr. V [...]rn [...]n, and one of us, filed an Exception or Plea to the Power of Governour Burnet, to take Cognizance of that Cause. Yet, tho' he over-ruled our Exception, he did not silence, or give us so much as a harsh Word, but heard all we had to say in Support of the Plea, before he over­ruled it. Again, in the Cafe of Mr. Philipse, at the Suit of Mr. Quinby and others, about the same Time; tho' Mr. Murray, after the Hearing and Pro­nouncing of the Decree, offered an Exception to the Power of His said Excel­lency, to judge or decree as Chancellor, who patiently heard all that Mr. Murray had to say in Support of it; yet Mr. Burnet did not silence Mr. Mur­ray, or testify the least Resentment of his Conduct in that Particular; but said, be was sorry, that be bad not made the Exception, before Mr. Philipse bad sichmit­ted to the Jurisdiction of the Court, and if be bad, that it should have been con­sidered, and bad its due Weight.

¶ 32. Though these Gentlemen, of whom we complain, may say, That these Things were done before they had any Standing in the Law, or pretended to have studied it: Yet they could not but have heard of these Cases, their nearest Relations having been, in some Measure, concerned in one or other of them. And tho' some Things done at that Day, gave some Dissatisfaction, yet the Mildness of that Administration, in these Particulars, will be a standing Evidence of the Unhappiness of the present Times, into which we are fallen.

¶ 33. We shall only add here, that in the Case of Mr. Van Dam, on two several Occasions, tho' Exceptions were signed by Mr. Chambers as well as our selves, and tho' indeed we had no Reason to boast of the kindest Usage from the two puisne Judges, upon these Occasions; yet they did not think fit to take away our Bread from us, for those Pieces of Service done to our Client. We would ask these Gentlemen, If it was not just to silence Mr. Chambers and us then, what has made it lawful and just for them to silence us in the present Case? And if it was just, to silence us for signing and filing the Exception for Zenger, why did they not silence Mr. Chambers and us, for signing and filing the Exceptions for Mr. Van Dam? These Gentlemen would do well to reconcile their Con­duct in these two Cases.

¶ 34. That we were perfectly innocent, and did our Duty in the Case of Zenger, is what we have the clearest Sense of. That the Law was with us, in the Right of the Subject to take an Exception, is what we will stedfastly main­tain; and challenge these Gentlemen to prove the Contrary. Had we err'd; must a Man loose his Livelihood for an innocent Mistake? Must his Brains be beat out, because they are not cast in the same Mould with another Man's? Had we been guilty of a Contempt, as is groundlessly pretended; is there no Proportion between Offences? Is there no Distinction between Punishments? Must we be put to starve, or to seek our Bread in a new Country, or in a new Manner of Life, for one Contempt? If these Things are to be tolerated, and to escape a publick Rebuke, and a private Recompense, hard will be the Case of Lawyers, who are sworn, To use their Offices according to their Learning and Discretion. Yet, by this Rule, we must not be permitted the Use of either. Instead of consulting our Law Books, and doing what we think consistent there­with, for the Benefit of our Clients, we must study in GREAT MEN'S CAUSES, only what will PLEASE the Judges, and what will most flatter Men in Power. Instead of doing, what our Honour and a good Conscience, and our Client's Safety demand of us, we must do only what will least hazard the pre­sent Support of our Families, and save our selves, om Wives and our Children, from [Page 15] Starving. Is this a Condition fit for these to continue in, whose Business it is to defend the Rights of the People? If the Lawyers are not safe in the Dis­charge of their Duty, can their Clients be safe in Trusting them? If we are to be Slaves, is it possible that the Country can be free? Surely, never was an Act of Oppression, under the Colour of Law, ever done within this Colony, that cryed louder for the Animadversion and severe Resentment of the Repre­sentatives of a free People than this!

¶ 35. These Judges might, with as much Justice, have burnt all our Law Books, as to have deprived us of the Use of them; and have destroyed our Deeds, and taken away our Houses and our Lands, as to have taken away the Liberty of Exercising our Employments, which were as dearly bought as any Thing we enjoy. We came not to them but by the Way of an expensive Stu­dy of several Languages, Arts and Sciences; our Abilities for them were the Purchase of many Years hard and costly Labour; we were duly admitted to our Practice, we ever used it with Fidelity and a good Conscience, and with what Acceptance, and Esteem of our Country, we doubt not but that a Thousand Witnesses can declare. What we had thus gotten, could not law­fully be taken from us, but for some notorious Crime, which our worst Ene­mies hitherto have not laid to our Charge. And we may venture to say, that we still have, notwithstanding the Act of these Justices, as much Right to live and maintain our Families by our Callings, as any Merchant, Husbandman or Tradesman in the Country. And we have as good a Title to be relieved a­gainst any Injury done to that Right, as any other Men. It would doubtless have been esteemed a crying Grievance, if these Gentlemen had ordered the Warehouse of any Merchant in Town to be stopped up, and disabled him from any farther carrying on of his Trade, whereby he supported and main­tained his Family; or if they had ordered the Farm and Instruments of Til­lage to be taken from any Husbandman in the Country, or if we suppose that they had only disabled him from Improving his Lands, and raising Bread for himself and his Family; if they had block'd up the Way to a Mil­ler's Mill, or broke down his Dam, and hindred him from grinding; if they had taken away the Tools of a Carpenter, or shut up a Tanner's Pits, and spoiled his Leather; and reduced these Men with their Wives and Children to a Necessity of Perishing for Want of Subsistance; and all this, not for hav­ing done any unlawful Act, but, for doing their Duty, and that which they were bound to perform by all possible Obligations, both sacred and humane: We say, if our Judges had done all or any of these things, the Injustice of such Proceedings would have lain open to every Man's Observation; but no less than all this is contained in the Injury of which we complain, and much more, in that not only our selves and our innocent Families are great Sufferers, but the publick Administration of Justice is greatly obstructed, and great Num­bers of Persons, who are our Clients, are much injured, either in the Reco­very or Defence of their just Rights by this Arbitrary Proceeding, and we doubt not, but that it has appeared to a Demonstration, from what has been said, that the Act of these Judges in debarring us from our Practice, meerly for having tendered an Exception to their Commissions, is also, in its Nature and Tendency, destructive to the Liberties and Properties of the People of this Colony.

¶ 36. We are clearly of Opinion, that when Judges act uprightly and do justly, they have a Right to all the Honour due to their Stations: But when they act otherwise, in plain Defiance of Common Law and Common Sense, [Page 16] the injured have a Right to complain; and if the Injury be of a publick Na­ture, have a Right to demand the Aid of the Representatives of a free People against them.

¶ 37. Perhaps these Gentlemen, who have done us this Wrong, and whom we accuse of having greatly injured their Country thereby, may buoy up themselves in their Wealth, their Power, their Friends, and Alliances, and may think, that under the Umbrage of these, they may do what they p [...], and not be called to any Account.

¶ 38. But, Mr. Chairman, no Man is too great for the Notice or above the Reach, of the Representatives of a free People. If our General Assembly will but exert that Authority that they have, by Law, a Right to, they may make the haughtiest Sinner tremble before them; an Inquiry into the Conduct of publick Officers is properly their Business; and a publick Resentment of their Misconduct (permit us to say it) is most certainly their Duty.

¶ 39. The Parliament in England has always been thought the proper Court to animadvert on the Misconduct of the Judges. In stead of repeating [...]nstan­ces of this, we shall beg Leave to read a Speech, made by Sir Francis W [...]ing­ton, an eminent Lawyer, in the House of Commons, and the Opinion and Resolutions of that [...]se▪ in the Year 1680, near the End of King Charles the second's Reign; [...] the Moose of Commons thought proper to enquire into the Conduct of the Judges, and to impeach the then Chief Justice Scroggs. It's in State Tryals, Vol. 3. pag. 222.

Mr. Sp [...]r:

In the Fron [...] of MAGNA CHARTA it is said, Nul [...] N [...]g [...]imus, [...] De [...]er or Deny Justice to no Man, To this the King is Sworn, and with this the Judges are intrusted by their Oaths.

I admire what they can say for themselves, if they have not r [...]d this Law, they are not fit to sit upon the Bench, and if they have, I had almost said, they deserve to loose their Heads.

Mr. Speaker,

The State of this poor Nation is to be deployed, that in almost all Ages, the Judges, who ought to be Preservers of the Laws, have endeavoured to De­stroy them; and that to please a Court Faction, they have by Treachery attempted to break the Bonds asunder of MAGNA CHARTA, the great Treasury of our Peace; it was no sooner past, but a Chief Hubert de Bourg. Justice in that Day, perswades the King, he was not bound by it, be­cause he was under Age when it was passed. But this sort of Insolence, the next Parliament resented, to the ruin of the perni­cious Chief Justice.

In the Time of Richard the Second, an unthink­ing dissolute Prince, there were Judges that did In­sinuate into the King, that the Parliament were only his Creatures and dependedon his Will, and not on the Fundamental Constitutions of the Land; which treacherous Advice proved the ruin of the King, and for which all those evil Instruments were brought to Justice. In his late Majesty's Time, his Misfortunes were chiefly occasioned by the Corruptions of the Long Robe, his Judges by an Extrajudicial Opinion, gave the King Power to raise Money upon an Extraordinary Occasion with­out Parliament, and made the King Judge of such Occasions. Charity Prompts me to think, they thought this a Service to the King; but the sad Consequences of it may convince all Mankind, that every illegal Act weakens the Royal Interest▪ [...] [...]our to introduce [...] Dominion in [...]ose Realms, is the worst of Treasons; because while it bears the Face of Friendship to the King, and designs to be for his Service, it never fails of the contrary Effect.

The two great [...]illars of the Government, are Parli [...] and J [...]es, it is this gives us the Title of Freeborn Englishmen, for my Notion of free Eng­lishmen is this, that they are ruled by Laws of their own making, and tryed by Men of the same Con­dition with themselves. The two great and un­doubted Priviledges of the People, have been lately invaded by the Judges that now fit in West­minster-Hall; they have espoused Proclamation against Law; they have discountenanced and op­posed several legal Acts that tended to the sitting of this Honourable House; they have grasped the Legislative Power into their own Hands, as in that Instance of Printing; the Parliament was consi­dering that Matter, but they, in the Interim, made their private Opinion to be Law, to supersede the Judgment of this House; they have discharged Grand Juries, on purpose to quell their Present­ments, and shelter great Criminals from Justice; and when Juries have presented their Opinion for the sitting of this Parliament, they have in Dis­dain thrown [...] at their Feet, and told them, they would be no Messengers to carry such Peti­tions, and yet in a few Days after, have encoura­ged all that would spit their Venom against the Government; they have served on Ignorant and Arbitrary Faction, and been the Messengers of Ab­horrences to the Kim.

Mr. Speaker,

What we have no [...] [...]o do, is to load them with Shame, who bid Def [...]nce, to the Law; they are guilty of Crimes [...]ai [...]st Nature, against the King, against their Knowledge, and against Posterity. The whole frame of Nature doth loudly and daily Pe­tition to G [...]d their Creator; and Kings, like God, may be addressed to in like Manner by [...]tition, [Page 17] not Command. They likewise knew it was law­full to Petition; Ignorance can be no Plea, and their Knowledge aggravates their Crimes. The Children unborn are bound to Curse such Pro­ceedings, for 'twas not Petitioning, but Parliaments they abhorred. The Atheist pleads against a God, not that he disbelieves a Deity, but would have it so. Tresilian and Belknap were Judges too; their Learning gave them Honour, but their Villanies made their exit by a Rope. The End of my Moti­on therefore is, That we may Address warmly to our Prince against them; let us settle a Committee to enquire into their Crimes, and not fail of doing Justice upon them that have perverted it, let us purge the Fountain, and the Streams will issue pure.

The Resolutions of the House of Commons upon the said Report.

1. That it is the Opinion of this House, that the Discharging of the Grand Jury of the Hundred of O [...]ston in the County of Middlesex, by the Court of King's Bench, in Trinity Term last before the last Day of the Term, and before they had finished their Presentments, was arbitrary and il­legal, destructive to Publick Justice, a manifest Violation of the Oaths of the Judges of that Court, and a Means to subvert the fundamental Laws of this Kingdom, and to introduce Popery.

2. That it is the Opinion of this House, That the Rule made by the Court of King's Bench, in Trinity Term last, against Printing of a Book, cal­led, The Weekly Packet of Advice from Rome, is ille­gal and arbitrary, thereby usurping to themselves Legislative Power, to the great Discouragement of the Protestants, and for the Countenancing of Popery.

3. That it is the Opinion of this House. That the Court of King's Bench, in the Imposition of [...] on Offenders of late Years, have acted Arbi­trarily, Illegally and Partially, favouring Papists and Persons Popishly affected, and excessively op­pressing his Majesty's Protestant Subjects.

4. That it is the Opinion of this House, That the refuseing sufficient Bail in these Cases, where­in the Persons committed were bailable by Law, was illegal, and a high breach of the Liberties of the Subject.

5. That it is the Opinion of this House, That the said Expressions in the Charge given by the said Baron Weston, were a Scandal to the Reformation, and tending to raise Discord between his Majesty and his Subjects, and to the Subversion of the Anci­ent Constitution of Parliaments, and of the Go­vernment of this Kingdom.

6. That it is the Opinion of this House, That the said Warrants are Arbitrary and Illegal.

The Resolutions of the Commons for the Impeachment of the said Judges.


That Sir William Scroggs Knt. Chief Justice of the Court of Kings Bench, be impeached upon the said Report, and the Resolutions of the House thereupon.


That Sir Thomas Jones, one of the Justices of the said Court of King's Bench, be impeached upon the said Report, and Resolutions of the House thereupon.


That Sir Richard Weston, one of the Barons of the Court of Exchequer, be impeached upon the said Report, and Resolutions of the House there­upon.


That the Committee appointed to prepare an Im­peachment against Sir Francis North, Chief Justice of the Court of Common Pleas, do prepare Impeach­ments against the said Sir William Scroggs, Sir Thomas Jones, and Sir Richard Weston, upon the said Report and Resolutions.


That the said Report and several Resolutions of this House thereupon be printed; and that Mr. Speaker take Care in the Printing thereof apart from this Day's other Votes.

Accordingly, Jan. 5. Articles of Impeachment were actually brought in against Sir William Scroggs; and the said Articles were Ingrossed, and carried up to the Lords by Lord Cavendish: But the Par­liament being soon after Prorogu'd, this Affair was dropp'd; however, it was thought proper to remove Scroggs from being Chief Justice; which was done with all the Marks of Favour and Re­spect, being allowed a Pension for Life. But a Parliamentary Censure did not hinder the Court from Preferring others; who had been censured a little before; as may appear by these Votes of the House of Commons.

October 29. 1680.


That Sir Francis Withins, by promoting and pre­senting to his Majesty an Address, expressing an Abhorrence to Petition his Majesty for the calling and sitting of Parliaments, hath betrayed the un­doubted Rights of the Subjects of England.


That Sir Francis Withins be expelled this House, for this High Crime, and that he receive hi Sen­tence, at the Bar of this House, upon his Knees, from Mr. Speaker.

(which he received accordingly)

Nov. 13. 1680.


That Sir George Jefferies, Recorder of London, by traducing and obstructing Petitioning for the fit­ting of this Parliament, hath betrayed the Rights of the Subject.


That an Humble Address be made to His Ma­jesty to remove Sir George Jefferies out of all Pub­lick Offices.

Mr. Chairman;

¶ 40. The Proceedings of Parliament against the Judges, in the Cases men­tioned by Sir Francis Winnington, are too well known to need repeating, and so terrible were the Resentments of those Parliaments, that Men must think Judges strangely infatuated, who deny or delay Justice or Right, or attempt to tread under Foot, the Rights, Liberties and Priviledges of a People, to intro­duce absolute Dominion or Will and Pleasure over them. What's the Duty of [Page 18] Parliaments to do in that Case, is the Duty of the General Assembly here to do; and those that suffer in the Defence of the Liberties of this Country, by the Arbitrary Proceedings of Judges, or other Men in Power, have a Right to fly to their Protection, and it highly concerns them, to do what in them lyes, to put a Check upon those Men, whose Actions not only have a pl [...]i [...] Tendency to put Chains upon the People, but also to subvert the very Fou [...] dation of all the Rights and Liberties of the Country. If thes [...] Things are suffered, then it may be said, The dying Liberties of a Country are at their last Gasp! If the Arbitrary Will of Men is set up in the Chief Seat of Justice, and the Law it self is made to bow down before it, and Lawyers are silenced for dareing to undertake its Defence; If the Cause of the Oppressed is condemned unheard, and the Law it self not suffered to speak in his Favour; If the Pleasure or Displeasure of a Court is declared to be the Rule of Right and Wrong, instead of the known Laws of the Land, it is then high Time for the Guardians of the Laws and Liberties of a People, to rise up and exert themselves, in a vigorous Discharge of their great Trust.

¶ 41. We are loath to declare what we think these Gentlemen deserve: We wish their Amendment, not their Destruction. But we humbly request, that this House would come to such Resolutions upon this Case, as they shall think just and necessary, for the Preservation of the Rights and Liberties of the People; that such Measures may be taken, as, that we may be restored to the Liberty of our Practice; that our Clients may have that Service from us, which they have a Right to demand; and the Publick Administration of Justice, that Help which we are able to afford; and that we may have the Means of common Justice, for Recovering such Damages from these Gentlemen as we have suffered, or shall suffer, until we are restored to our Employments.

¶ 42. These Things, by Law, we think we have an undoubted Right to demand; and as Members of the Community represented in this General As­sembly, we conceive we have a Right to have redress'd in this Way; and have no reasonable Prospect of speedy Relief in any other. If we had, we should not have waited for the Sitting of the General Assembly. We desire nothing from this honourable House, which is not in their Power to bestow, and which, from the Justness of our Cause, we hope we have the highest Rea­son to expect. We trust that no Power or Interest (that we expect will be warm­ly opposed to us) will be able to smother or stifle our Complaint, or delay the Relief we seek for. The Duty that we owe to our Country, our Clients, and our Families, demanded this Application. And if we have any Ways err'd in the Matter or Manner of it, we hope the Importance of the Cause, and our great Sufferings, will excuse it.

¶ 43. 'Tis not long since one of us, had the Honour to be called upon, to give an Opinion upon an important Point before this House; what Influence that Service may have had upon the Cause of the present Complaint, is hard for us to determine; but our Hope is, that our Country, whose Good we have always sincerely consulted; Here Mr. Smith took No­tice, that that Opinion was demanded and given upon his Sincerity and Honour. and as we have been called upon, have publickly served, will not deny us its Protection, nor suffer us to be crushed for our faithful Adherence to its Interests and honest Discharge of our Duty.

[Page 19]

In Obedience to an Order of the Honourable the General Assembly, dated the 24th Day of October last, James Alexander and William Smith, being duly sworn [...] the holy Evangelists, on their Oath de declare, That the proceeding Paper con­tains a true, full and compleat Copy of the Complaint which they offered to the Com­mittee of Grievances, against the Judges of the Supream Court, and of all that they offered and said before the said Committee on the 23d Day of October last, at the House of Mr. John D'honneur, by Way of Complaint against the said Judges, to the Best of the Knowledge of these Deponents. EXCEPT that in the 22d Paragraph some Words are inserted between these Marks [ ] which were designed to have been said in that Place, but they believe they were by Mistake omitted to be spoken. And EX­CEPT that the Words Mr. Chairman were oftner spoken than what appears by the proceeding Copy. And EXCEPT some Words spoken extempore, the Substance of which they believe is contained in the Marginal Note on the last Paragraph. And EXCEPT the Marginal Notes and Numbers of the Paragraphs, which have been since added. The [...]ponents DECLARING, that what they said extempore, before and after the Complaint, in excepting to Judge Philipse's being one of the Committee, and other Ex­ceptions then made extempore, not having been reduced to Writing before they were offered, they do not esteem any Part of their said Complaint; neither is it in their Power to remember exactly what was said on that Occasion, nor do they conceive it was the Intention of the General Assembly, to order the Delivery of a Copy of that to the Judges. And farther the Deponents say not.

  • Ja. Alexander.
  • Wm. Smith.
Sworn the Twenty seventh Day of December, 1735. Before S. Johnson.

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