When I first began thinking about writing this blog, I thought: I am a trial lawyer. I am a former investigative journalist. And I live in Philadelphia.
So, naturally, I thought of Andrew Hamilton.
The expression, “a Philadelphia lawyer,” as in, a lawyer who is an exceptionally talented attorney-advocate, can be traced back nearly 300 years, to Andrew Hamilton. It’s been a few years, but his is still a really good story.
In the early-1700s, Hamilton crossed the Atlantic from Scotland and settled in Philadelphia. He met and worked with William Penn and that opened some doors politically. At various times, Hamilton served as Pennsylvania’s attorney general and Speaker of the House of Representatives. He is also credited with helping design the building that became Independence Hall. That’s not a bad list of accomplishments.
Hamilton is best known perhaps for being one of the most highly regarded trial lawyers of his day. One case in particular earned him his claim to fame: his defense in 1735 of John Peter Zenger for seditious libel.
At the time, Zenger was one of only two printers in New York City. Hard to imagine in this age of twitter and blogs, but the media is called “the press” for a good reason. Zenger printed mainly religious tracts until he crossed paths with New York’s Chief Justice, Lewis Morris.
Here is the background: In 1733, New York’s new Governor, William Cosby, had picked a fight with his predecessor, Rip Van Dam, a senior member of New York’s provincial council. The fight was political and it was about money and the dispute ended up in the highly-politicized New York Supreme Court. Governor Cosby knew he would lose if the case went to a jury, so Cosby dictated that the Court should decide the case instead of a jury. Van Dam challenged the legality of Cosby’s end-run around the jury system. The Supreme Court voted 2-1 in favor of Cosby. Justice Morris cast the one dissenting vote.
When Governor Cosby demanded that Justice Morris explain his dissenting vote, Morris did so, in a pamphlet printed by John Peter Zenger. Governor Cosby responded by firing Morris.
Morris started a new political party, the Popular Party, and, with other Cosby critics, also started The Weekly Journal, a newspaper featuring essays and stories excoriating Governor Cosby’s administration. Zenger, once again, was the printer/publisher.
Governor Cosby did not take kindly to being attacked in the press. So he shut down the Weekly Journal and he threw Mr. Zenger in jail. Zenger spent eight months in New York’s Old City Jail waiting for trial on charges of libel against the government.
The jury was seated and the new Chief Justice, James Delancey, a Cosby appointee, presided. The prosecuting attorney set forth the charges against Zenger:
“That John Peter Zenger, of the City of New York, printer, being a seditious person; and a frequent printer and publisher of false news and seditious libel, both wickedly and maliciously devising the administration of His Excellency William Cosby . . . to traduce, scandalize and vilify both His Excellency the Governor and the ministers and officers of the king, and to bring them into suspicion and the ill opinion of the subjects of the king residing within the Province. . . did falsely, seditiously, and scandalously, print and publish, and cause to be printed and published, a certain false, malicious, seditious, scandalous libel entitled The New York Weekly Journal.”
Obviously, lawyers were long-winded even then.
Andrew Hamilton had come from Philadelphia to New York to assume Zenger’s defense. Hamilton was passionate and eloquent in arguing that Zenger could not be guilty of seditious libel if the statements made about the Cosby administration were in fact true. How fitting that the man who designed the building where the Constitutional Convention would meet some 50 years later would be the one to champion the cause of free speech.
Hamilton implored the jury:
“No, it is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt. They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow.”
What a radical idea, that freedom means the right to complain when someone else has hurt you.
In 1735, Hamilton was exercising that right at great personal risk. Zenger’s previous lawyers had been disbarred for speaking out in his defense. The power of the Governor was great and there was no Constitution yet, no Bill of Rights yet, to protect the fundamental rights Hamilton was describing.
The pro-Cosby Chief Justice refused to allow Hamilton put on evidence that Zenger’s statements about the Governor were not false. So Hamilton appealed directly to the jury:
“You are citizens of New York. You are really what the law supposes you to be, honest and lawful men; and according to my brief, the facts which we offer to prove were not committed in a corner. They are notoriously known to be true. Therefore in your justice lies our safety. And as we are denied the liberty of giving evidence to prove the truth of what we have published, I will beg leave to lay it down as a standing rule in such cases that the suppressing of evidence ought to be taken for the strongest evidence; and I hope it will have that weight with you.”
“Power may justly be compared to a great river. While kept within its due bounds it is both beautiful and useful. But when it overtakes its banks, it is then too impetuous to be stemmed; it bears down all before it, and brings destruction and desolation wherever it comes. If, then, this is the nature of power, let us at least do our duty, and like wise men who value freedom use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust and boundless ambition the blood of the best men that ever lived.”
The Chief Justice dismissed the jury to deliberate. They were back in moments with a verdict of not guilty.
Zenger had stood up for himself and for his right to – as we say today – to speak truth to power. Hamilton had courageously advocated for him and for this great cause.
A trial lawyer fighting for what he knows is right. Advocating for those who have been hurt. Making the law matter. That is the highest aspiration of this Philadelphia lawyer, too.
(Here is a link to Zenger’s own account of the entire proceeding, fascinating reading: http://law2umkc.edu/faculty/projects/ftrials/zenger/zengerrecord.html)