The writings of Richard Kluger
The trial date fell on a Monday, normally press day for the New-York Weekly Journal, but out of necessity the paper had been printed the day before, even though it was the Sabbath. Zenger’s shop was to be stripped of its labor force that Monday because, as he explained to his readers, “not only my journeymen but my two little sons are subpoenaed as evidences [witnesses] against me.” The prosecutor planned to call them to the stand to verify that Zenger had supervised the printing of the two allegedly libelous numbers of his paper, and that, along with the identity of the person against whom the paper’s defamatory words were directed would be all the evidence required to convict him, according to the prosecutor. But there was another, equally compelling reason to produce and distribute the Journal a day early: by circulating it on the eve of the trial, the Morrisites hoped to alert New York’s citizenry to the signal event and attract a sizable audience to the courtroom sympathetic to the defendant’s cause.
The plan succeeded. Long before the assigned hour, milling crowds pushed through the three graceful archways that formed the entrance to City Hall and flowed upstairs to camp outside the doors to the second-floor courtroom. It was not a large chamber—one prominent account of the trial, by Livingston Rutherford in 1904, describes it as “a little room” and says it was filled “to its utmost capacity” when the bailiff called the court to order. At a guess, the audience numbered between 250 and 300, and, to rely on Rutherford’s words again, “Every class in the community was represented.” The author, though related to Alexander and plainly out to memorialize his efforts in behalf of press freedom, was likely not far off the mark in writing:
The majority of the people felt that they had assembled not merely to witness the trial. . . but that here the last fight was to be made against the administration which was so arbitrarily oppressive. If Zenger should be found guilty, surely their last hope of relief would be gone, they would be powerless to resist any hardship the governor might see fit to impose. On the other hand, Zenger’s acquittal would mean a decided check to the evils from which they suffered, a vindication of their demands and of the principles for which they contended, and would give them courage to continue their efforts to rid themselves of their despicable governor.
The trial opened with the prosecutor, Attorney General Richard Bradley, reading the charges against the prisoner and the text of the passages that he asserted were false and seditious libels by which the governor had been “greatly and unjustly scandalized as a person who has no regard to law or justice.” Cambridge-educated, Bradley was nearing the midpoint of his twenty-nine-year tenure as the colony’s chief law enforcement officer. Detractors credited his longevity less to his skills than to his avid compliance with the wishes of whatever governor was in office at the moment. His foes in the Assembly and among the Morrisite populists whispered that the attorney general was prone to abuse his power by issuing “informations” with insufficient cause and then extracting payoffs to drop the prosecutions. Like much of the criticism against Cosby and his lieutenants, documented evidence of such venality was lacking or ambiguous.
After Bradley read out the charges for acts that he said had caused “great disturbance of the peace” throughout the province and required Zenger’s conviction, he recited the allegedly libelous passages. In doing so, he was mindful of the requirement under common law as set forth in Hawkins’s treatise that a libel had to defame a specific individual or group, and so he took the liberty of telling the jurors parenthetically that each time the word “governor” was mentioned, it referred explicitly to the incumbent officeholder. Cosby’s name, though, never appeared in the cited texts.
Defense counsel John Chambers then pleaded his client not guilty. It was at this point that Alexander had intended—until a few weeks prior—to have Zenger stand and ask permission to direct remarks to the bench, written for him by his then-disbarred lead counsel and asking the chief justice to step down as the presiding jurist because of his arrantly prejudicial conduct toward the printer over the previous year and a half. Alexander had decided, however, that it would be too risky a move, certain to be rejected by DeLancey and only further antagonize him. More to the point, Alexander had lately succeeded in obtaining another and far more promising weapon, shortly to be unsheathed, to compensate for Chambers’s limitations as an advocate. And so the young lawyer proceeded to make his opening remarks, only partially guided by the line of argument that Alexander and Smith had urged on him.
Absent court reporters with mechanical means or as yet uninvented shorthand techniques to create a complete, literal transcript of the proceedings, we cannot be certain of the precise words uttered at the Zenger trial. But posterity has been given a likely close approximation, thanks to notes prepared both before and after the trial by the defense counsel and Alexander, who used them to create the Brief Narrative of the event that he wrote and Zenger published the following June. Thus, we know for a near certainty that in his opening statement for the defense, Chambers stressed two principal points. The first was that the attorney general had to prove not merely that Zenger printed the quoted words but that they were libelous because they were untruthfully defamatory. To do so, the government had to convince the jurors that the offending language was, as Hawkins and other authorities had posited in their distillation of common-law rulings, “false, malicious, seditious, and scandalous” as charged and thus a criminal act. Heeding Alexander’s planned brief and noting that a libel had been repeatedly defined as “a malicious defamation,” Chambers argued that “to defame is falsely and maliciously to take from a man his good name and character, or to endeavor to do so.” Therefore, according to the accepted definition, every libel had to be false and malicious, and the prosecutor had to call witnesses to establish that the Journal’s words met that test—and not just that Zenger had printed them.
Chambers then turned to his other main argument—a hobbyhorse he wished to ride but Alexander thought was lame to begin with: the government’s legal obligation in a “special verdict” proceeding to establish the identity not only of the printer but also of the defamed individual. “I conceive it is incumbent on Mr. Attorney [General],” Chambers’s notes show he intended to declare, “fully to prove and make appear, not by innuendoes, probabilities and farfetched insinuations, but by plain, positive and convincing evidence [who the intended target of the libel was]. Otherwise, you will acquit the defendant.”
At this point, just before the defense was about to yield the floor to the prosecution to present its case, a venerable figure unfamiliar to onlookers arose from the cluster of Zenger’s advisers seated behind Chambers’s table and traded places with the printer’s young counselor. The pulse and drama of the trial were at once transformed. The newcomer identified himself to the bench as Andrew Hamilton, a certified member of the Pennsylvania bar, and thereby stirred a murmur of surprise and anticipation in the thronged hall, especially among those in the profession who knew his reputation as the most accomplished barrister in the American colonies.
For nearly two decades, he had been a dominant force in the politics of his colony, serving at that moment as speaker of the Pennsylvania Assembly, second in power only to the governor, against whom he was embroiled in conflict in his role as longtime attorney to the family and heirs of the province’s proprietary founder, William Penn. Hamilton’s array of gifts—masterful command of language, a feel for the theatricality of the courtroom, deft touches of wit and irony, and, as one contemporary admirer put it, “confidence which no terror could awe”—at once set him apart as an advocate whose like had never been seen before in the courts of New York.
In his search to replace the callow and unadventurous Chambers as Zenger’s trial lawyer, James Alexander had little hoped to entice Hamilton to accept the engagement, given his many official commitments, busy court calendar, advanced age of fifty-nine, and reduced mobility due to gout. But Alexander had persisted in his quest. Though fifteen years his junior and lacking Hamilton’s eloquence, he was a friend of the Philadelphian and had much in common with him beside their profession. Both were native Scots, brought great energy and ambition with them to America as immigrants in their early twenties, built flourishing legal practices linked to their political acumen, gathered extensive law libraries (often lending their books to each other)—and kept their origins and youthful run-ins with royal authority wreathed in mystery.
No reliable record of his ancestry or upbringing survives, but young Hamilton’s family were likely people of at least modest means, for in 1690 at age fourteen, he entered St. Andrew’s, Scotland’s oldest university, earned his degree in three years, undertook postgraduate studies in Glasgow, and then attended the University of Edinburgh, apparently to begin learning law. While there, he was rumored to have been caught up, just as Alexander would be the following decade, in conspiratorial Jacobite activities devoted to expelling the imported Dutch-born monarch William III and restoring the Stuart dynasty, even if Catholic-leaning, as the legitimate rulers of the realm. Besides fearing his disclosure and capture as a subversive by government officers, Hamilton may also have been implicated in a murder or possibly a fatal duel, and upon reaching his majority, reportedly changed his name to Trent for a time, the better to help him flee to America with an untainted identity.
Andrew took shelter as an unobtrusive private tutor in Northampton County on Virginia’s Eastern Shore, where he was soon befriended by a wealthy, childless couple named Foxcroft, who gave him lodgings in exchange for managing their large estate and introduced the well-spoken and learned young man into prominent social and political circles. Hamilton connected with a highly regarded attorney in whose office he resumed his legal studies and before long was admitted to practice. His patron Isaac Foxcroft died in 1702 and his widow Bridgett two years later. By her will, the bulk of the Foxcroft fortune passed to Hamilton, whom she called “my beloved friend,” causing some local tongues to wag that the young heir was an unscrupulous fortune-seeker who had exercised undue influence over the couple and might have pursued an immoral relationship with Bridgett while both wife and widow. No evidence emerged that Mrs. Foxcroft’s affection for Andrew was anything other than maternal and platonic; much of the talk was no doubt stirred by envy of his evident brains, charm, and luck. At any rate, by age twenty-eight he had achieved financial security that allowed him freedom from pandering to acquire dubious clients and suffering fools in the course of his law practice—an independence of character that cost him in popularity despite his abundant legal aptitude.
Moving north to Maryland, Hamilton quickly gained professional prominence, married a daughter of an influential Quaker family, who helped him gather a profitable new clientele, and bought a 600-acre estate near Chestertown, across Chesapeake Bay from Maryland’s capital at Annapolis and its urban center, Baltimore. To burnish his legal credentials, he returned to England, joined a firm at Gray’s Inn, one of the four leading societies for London barristers, and was called before (i.e., admitted to) the English bar, gaining invaluable connections before returning to America. His Quaker in-laws now opened doors for him in Philadelphia, where in 1713 he was contacted by the Penn family’s agent to handle ongoing disputes over proprietary rights originally granted to them by the Duke of York before he took the throne as James II. Hamilton’s relationship with the Penns greatly added to his standing in Philadelphia, where he bought a residence and set up an office even while gaining entrée to Lord Baltimore’s family and entering elective politics as a member of Maryland’s House of Delegates. There he soon made his mark by leading the effort to codify the colony’s laws. In 1717, he transferred his activities entirely to Pennsylvania, where he argued frequently before the province’s Supreme Court, was appointed attorney general of the colony, then elevated to membership on the Provincial Council, and became both recorder for the city of Philadelphia and master of the rolls (i.e., chief clerk) of the Supreme Court, to which he would no doubt have been appointed had he been willing to abandon his private practice. Elected to the Pennsylvania Assembly in 1726, he was two years later awarded the speakership, the ranking elective office in the province, which he still held when his friend James Alexander solicited him to defend Peter Zenger at his trial.
Hamilton’s credentials for the job did not include a reputation as passionate defender of press freedom—quite the opposite. As a member of the governor’s council, he had twice joined in that body’s censure, prosecution, and punishment of Andrew Bradford, Philadelphia publisher of the American Weekly Mercury, for committing seditious libel. In 1722, Bradford was charged for printing an anonymous pamphlet and publishing in his paper an article taken from it that complained of “the dying credit of the province,” interpreted as an impermissible slur on the government. Bradford got off with a stern warning never again to publish any commentary on the public affairs of Pennsylvania without the approval of the governor or his surrogate. Seven years later, theMercury carried a letter signed “Brutus” urging readers “to throw off all subjection” to the king and his government, presumably including Pennsylvania’s, which got Bradford jailed by order of the council, again with Hamilton’s approval; the publisher was released only after his abject apology.
Still, advocates with Hamilton’s virtuosity were quite up to arguing either side of a legal dispute, so landing him to try to win Zenger’s acquittal was a considerable coup for Alexander. Hamilton’s celebrated talents aside, he had the added advantage for the defense of being an out-of-towner, little known to the New York public at large, and thus was free of taint as a partisan in the province’s increasingly heated political climate. He could command the stage—and the jurors’ ears—at City Hall as no local practitioner might. From Hamilton’s standpoint, it was worthwhile to make the effort in behalf of the poor printer, even if he was asked—and agreed—to do so without charging a fee. Hardly averse to celebrity, he often came to the aid of impecunious clients, and besides, he had been under assault for several years by the Mercury’s Bradford for siding with Penn descendants against the governors of Pennsylvania. The Zenger trial provided a ready-made arena for Hamilton to strike a blow at Bradford’s father, William, whose Gazette was Cosby’s slavish supporter.
Alexander’s enlistment of such a luminary was kept secret until the moment of his court appearance in order both to unnerve the attorney general and deny other government officials, especially the chief justice, the opportunity to fashion a pretext for barring Hamilton from appearing in court as Zenger’s cocounsel. Hamilton very well may not have been licensed to practice in New York, for example, and DeLancey would have been under no obligation to waive such a requirement as a professional courtesy. But because of Hamilton’s reputation, Zenger later wrote in his account of the trial, “they did not dare to proceed to such an arbitrary length”—especially, he might have added, after having summarily denied the defendant James Alexander’s valuable services.
In the brief period between Hamilton’s clandestine arrival in New York and the opening of the trial, Zenger’s dismissed counselors worked intensively with their stellar visitor to give him the benefit of all their research and suggested a tactical approach to the courtroom argument that Chambers was hesitant to adopt. Certainly, though, Chambers had to be told he was to yield the lead defense counsel role that had been imposed on him; otherwise, had the news been sprung on him in court that morning, he might have publicly objected and fed DeLancey a reason to deny the substitution. Probably to ensure Chambers’s cooperation after receiving notice of his demotion, spare him his dignity, and keep him from revealing the identity of his high-caliber replacement to the Cosbyite camp, where his usual loyalties—but not his present ethical duty—lay, he was allowed to deliver the defense’s opening statement. Most of it, anyway. Having done so without much helping or hindering his client, the novice yielded the floor to the virtuoso.
©2017 Richard Kluger