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 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 or warranted by the common law, or any statute of England, or of Great Britain, or any act of Assembly in 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., Governor 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 consent His Excellency could not grant the same.

Wherefore, and for many other defects in the said commission, the defendant humbly hopes that the honourable James De Lancey, Esq., will not take cognizance of this cause, by virtue of the commission aforesaid.

The exceptions to Mr. Philipse's commission were the same. Both series of exceptions were offered by Mr. Alexander, who prayed that they might be filed. The Chief Justice was angry, and said to Mr. Alexander and Mr. Smith that they ought well to consider the consequences of what they offered, to which both answered that they had well considered what they had offered

and all the consequences, and Mr. Smith added that he was so well satisfied of the right of the subject to take an exception to the commission of a judge, if he thought the commission illegal, that he durst venture his life upon that point. As to the validity of the exceptions then offered he was willing to argue if he could be heard. De Lancey replied that he would consider the exceptions in the morning, and ordered the clerk to bring them to him.

Next day the Chief Justice delivered one of the exceptions to the clerk, and Justice Philipse the other, Mr. Smith then arising and asking the judges whether they would hear him upon two points: First, that the subject had a right to take such exceptions if they judged the commissions illegal; and secondly, whether the exceptions offered were legal and valid. This the Chief Justice would by no means allow of. He said they would neither hear nor allow the exceptions; "for," continued he, "you thought to have gained a great deal of applause and popularity by opposing this Court, as you did the Court of Exchequer; but you have brought it to that point that either we must go from the bench or you from the bar. Therefore we exclude you and Mr. Alexander from the bar."

He then delivered his order to the clerk, and ordered it to be entered, which was done, and the paper returned to the Chief Justice. After this the Chief Justice ordered the clerk to read publicly what he had written, which was as follows:

At a Supreme Court of judicature held for the province of New York, at the City Hall of the city of New York, on Wednesday, the 16th day of April, 1735,

PRESENT.

The honourable James De Lancey, Esq., Chief Justice. The honourable Frederick Philipse, Esq., second justice. James Alexander, Esq., and William Smith, attorneys of this court, having presumed (notwithstanding they were forewarned by the court of their displeasure if they should do it) to sign, and having actually signed and put into court exceptions in the name of John Peter Zenger, thereby denying the legality of the judges their commissions (though in the usual form) and the

being of this Supreme Court. It is therefore ordered that for the said contempt the said James Alexander and William Smith be excluded from any farther practice in this court, and that their name be struck out of the roll of attorneys of this court.

Per Cur',

JAMES LYNE, Cl.

Mr. Alexander declared, as soon as he heard the order read, that the judges were mistaken in their reading. No exceptions had been taken to the being of the court, but simply to the validity of the commissions of those who were holding it, and he therefore prayed that the order might be modified accordingly. Mr. De Lancey said that he conceived the objections were against the being of the court. But Mr. Alexander and Mr. Smith both denied that they were, and asked the Chief Justice to point to the place that contained such exceptions, and further added that the court might well exist, though the commissions of all the judges were void. This De Lancey confessed to be true. The disbarred counsel therefore prayed that the order in that point might be altered. This was, however, denied. The Chief Justice was determined to get rid of factious opposition, and he had besides the personality of the Governor urging him on. No men in the province could be more distasteful to him.

Upon this exclusion of Zenger's counsel he petitioned the court to order counsel for his defense. John Chambers was thereupon appointed, who pleaded not guilty to the information. Mr. Chambers moved that a certain day in the next term might be appointed for the trial, to be by a struck jury. The court fixed the date for Monday, the 4th of August, and said it would consider until the first day of the next term whether he should have a struck jury or not, and ordered that the Sheriff should in the meantime, at Zenger's charge, return the freeholders' bookthat is, in more modern phraseology, the list of freeholders, from whom alone a jury could be empanelled, should be drawn off, to be produced in court, and that Zenger should pay the costs.

On the 29th of July, the first day of the next term, the court decided that Zenger was entitled to have a struck jury. Accordingly at five o'clock that afternoon some of his friends went to the clerk's office to strike the jury, when, to their surprise, the

clerk, instead of producing the freeholders' book, to strike the jury out of it, as usual, produced a list of forty-eight persons whom he had privily and without superintendence taken out of the volume. It was not an impartial list, nor a good list in the eyes of the law, having been done without adverse scrutiny. Zenger's friends told him that a great number of these persons were not freeholders; that others were persons holding commissions and offices at the Governor's pleasure; that others must be supposed to have resentment against the prisoner for what he had printed concerning them; that others were persons who supplied the Governor's household, being his baker, tailor, shoemaker, candlemaker, joiner, etc.; that there would not remain a jury, if they struck out all the objectionable men, and according to the custom they had only the right to strike out twelve. But finding no arguments could prevail with the clerk to strike the jury as usual, Mr. Chambers applied to the court next morning, and the court, upon his motion, ordered that the forty-eight should be struck out of the freeholders' book, in the actual presence of the parties, and that the clerk should hear objections to persons proposed to be of the forty-eight and allow of such exceptions as were just. In pursuance of that order a jury was that evening struck to the satisfaction of both parties.

THE MERCANTILE LIBRARY.

Early in the month of November, 1820, there appeared upon the bulletin of the New York Daily Advertiser a notice, addressed to the young men of the city and others interested in the formation of a new library for the use of merchants' clerks. The plain accommodations of a boarding house in Pearl street gave shelter to a number of young men engaged in mercantile pursuits downtown. They formed a debating club, and held stated meetings. The improvement experienced in the course of these social gatherings encouraged a desire for more enlarged opportunities, and a call for a public meeting was issued. The call was drafted

by Mr. William Wood, to whom the enterprise owed much of its early successes.

In pursuance of this call a meeting, attended by two hundred and fifty persons, was held on the evening of Nov. 9, 1820, at the old Tontine Coffee House. Mr. Churchill C. Cambreleng presided. Preliminary measures were taken for the establishment of a library. At a second meeting, held Nov. 27, the present society was founded, under the title of the "Mercantile Library of the City of New York." The Constitution adopted at this time differed in no essential respect from that which now governs the Association. Its preamble is simple and concise :

"We, the subscribers, Merchants' Clerks of the City of New York, being desirous to adopt the most efficient means to facilitate mutual intercourse; to extend our information upon mercantile and other subjects of general utility; promote a spirit of useful inquiry, and qualify ourselves to discharge with dignity the duties of our profession and the social offices of life-have associated ourselves for the purpose of establishing a Library and Reading Room, to be appropriated to the use of young men engaged in mercantile pursuits; and have for our government adopted, etc."

The objects set forth in this pronunciamento of intentions have never been swerved from. Upon the adoption of the Constitution, measures were taken to enlist the co-operation of the leading merchants. The compliment of honorary membership was bestowed upon sixty-four highly influential persons, among whom appear the names of Philip Hone, J. J. Astor, Jonathan Goodhue, Peter Schermerhorn and Samuel Leggett. An address to the public was prepared, and appeals for aid were put forward. They were not unheeded. A sufficient number of volumes was collected to encourage the foundation of a library, for which rooms were accordingly rented on the second floor of No. 49 Fulton street, at a yearly rate of $130.

The first Library Rooms, thus prepared, were opened to members on the 12th of February, 1821. Seven hundred volumes graced the plain, substantial shelves which the society's funds enabled it to provide. Before the end of the year, this number had increased to 1,000. The donations in cash, from Nov. 20, 1820, to