Chapter 1

“THE WORST INSTRUMENT OF ARBITRARY POWER”

When does the story of the American Revolution begin? It began not with patriot crowds burning effigies or with the rising of oppressed masses. Instead, it began in a courtroom, where a jury heard and determined the prosecution of a printer. No one in that courtroom could know that the arguments presented by counsel for the colony and for the defendant would prefigure lawyers’ briefs three decades hence, when far more than the imprisonment of the printer was at stake.
On August 4, 1735 New York City printer John Peter Zenger went on trial for a seditious libel—calling New York colonial governor William Cosby a threat to the liberties of the people among other criticisms. Seditious libel was the common law offense of criticism in print of the government or an incumbent public official. Such publications were thought dangerous because they had a “pernicious tendency” to diminish the respect due government from the people, or because they might incite the people to resist their government. Zenger had languished in jail for nearly a half year when a hearing set for that April ended with a delay. The delay enabled Cosby’s critics to provide new counsel for his defense.1
Zenger was hardly an innocent when it came to the tumultuous politics of the colony. He was a Palatine German immigrant who, from 1710, had apprenticed in the printers trade. Printers sought and greatly benefitted from the patronage of the colony’s government, sating themselves on the printing of official notices. Zenger had mastered this fact during his apprenticeship to William Bradford, the colony’s official printer, and after an unsuccessful sojourn in Maryland, returned to New York City to serve Chief Justice Lewis Morris and his cohorts. But Morris’s stormy career in and out of power (depending on who was the governor England sent to the colony) left Zenger in a perilous condition—doing well when his patron did well, and making enemies of his own when his patron could not protect him. None of this dissuaded Morris from using Zenger and his newspaper as the mouthpiece of Morris’s anger at the new governor, William Cosby. Taking on the governor’s supporters, Morris and his friends laid out their complaints in Zenger’s New York Weekly Journal.2
This was the genre of case in which politics and law were inextricably bound. Such cases were not uncommon in colonial courts or in the home country. One may see them as political conflicts waged in a court of law or as criminal prosecutions overshadowed by a political contest, but however one weights the scales of justice in the Zenger Case, it allowed bar and bench, with the people looking on, to explore the limits and limitations of colonial constitutionalism.
The setting, the players, and the issues in the New York City Hall courtroom then were all rooted in a provincial setting at the edge of a great empire. The governor was a royal appointee. The court was one that he created, and had no more authority in the imperial scheme of things than a municipal tribunal in England. The bench, over which Judge James DeLancey presided, opposite whom sat defense counsel James Alexander, represented the legal elite of the colony, but both men knew that real authority lay across the water in England. For this reason, Cosby’s chief opponent, lawyer and former chief justice Morris, had already gathered up evidence of the governor’s alleged greed and misconduct and sailed for England to present it to the authorities there.
Meanwhile, in the courts of New York, following English common law, the charge of seditious libel only required proof of the author’s identity. Everyone knew that Zenger’s newspaper was the house organ of the anti-Cosby faction in the colony. The trial, then, should have been a minor affair resolved by well-settled law in a distant corner of a great empire. It seemed so easy that the Cosby forces allowed the first jury panel, filled with Cosby placeholders, to be replaced with a far less partisan jury.3
Instead, the trial was a harbinger of the protest against royal and Parliamentary authority in the coming decades because two lawyers for Zenger, Alexander and Andrew Hamilton, turned their jury summation into a far-reaching claim of colonial rights, pushing them to the limits of the Anglo-American constitutionalism of the day. But not beyond those limits.
Alexander was the most successful and prosperous lawyer in New York and New Jersey, worth millions in today’s money. Hamilton was equally respected and well recompensed in Pennsylvania. Summoned by Alexander from Philadelphia to defend Zenger when DeLancey found Alexander in contempt of court, along with “some instructions” about how to proceed, Hamilton, using a draft largely prepared by Alexander, convinced the jury that the governor and the judges could not direct a verdict against Zenger.4
Richard Bradley, the attorney general of the colony, saw nothing of this coming. Though he had been the crown’s attorney in the colony for over a decade, his longevity was due more to his loyalty to the government than to any evidence of brilliance. When the Alexander-Hamilton plan became apparent, DeLancey tried to deflect it. For the judge and the prosecutor, the case had seemed open and shut. Since the defense had confessed the fact that Zenger was the publisher of the libel, Bradley told the bench “I think our witnesses may be discharged.” But Bradley bowed to DeLancey’s invitation to continue. This gave Bradley the opportunity to explain to the jury that law said that truth was not a defense. Perhaps more important, it gave the government the chance to lay down the foundation of Anglo-American colonial law. The law was settled; it was English; and it had to be obeyed no matter the political inclinations of a particular jury or the political events surrounding any particular trial. “The law says” was Bradley’s mantra, and supposedly there was no wiggle room in that. “If such papers [as Zenger published] are not libels, I think it may be said there can be no such thing as a libel.” But one can read in Bradley’s increasing exasperation some sense that he was bewildered by Hamilton’s argument. Such novelty here and hereafter was not welcomed by defenders of crown law. “We have nothing to prove,” Bradley kept saying. “The law in my opinion is very clear.” But by midpoint in the trial, Bradley was asserting an opinion, rather than a matter of simple law. Hamilton and Alexander had put the prosecution on the defensive.5
Hamilton’s argument rested on the proposition that all men are subject to the law. Here his “vivacity, wit, and incandescent presence” turned his “long-windedness” into an asset. No one is above the law, he insisted. Although in practice the royal governor of a colony had more power there than the king had in England, Hamilton argued that in both places the law governed the actions and the liability for misuse of power by a chief executive. “May it please Your Honor, I was saying that notwithstanding all the duty and reverence claimed by [the prosecutor, the attorney general] to men in authority, they are not exempt from observing the rules of common justice either in their private or public capacities. The laws of our mother country know no exemptions.” The law, of course, was English law, received in the colonies. Although the individual colonies’ charters and other founding documents might contain variations from English law, they were grants under English law and could be rescinded, again under English law. This notwithstanding, he warned that the case had political overtones, and it was these very overtones that he wanted the jury to take into account. “It is true that men in power are harder to come at for wrongs they do either to a private person or to the public, especially a governor in The Plantations, where they insist upon an exemption from answering complaints of any kind in their own government.”6
Hamilton was not without a political agenda of his own, based on Alexander’s adherence to the Morris faction in the colony. In addressing the jury as he did Hamilton was slyly continuing the attack on Cosby. If he could convince the jury that what Zenger had printed was true, and that truth was a positive defense against the charge of seditious libel, then he might not only obtain a favorable verdict but make the case against Cosby’s villainy stick.
The prime obstacle to this objective had to be met head-on: in English law, truth was not a defense against a charge of seditious libel. Indeed, if one accepted the reasoning of the English courts, a criticism of government that was true was even more dangerous than one that was palpably false. The latter could be disproved. The former shattered the reputation of the government because it was true. Hamilton’s way around the obstacle was ingenious: the expression of political opinions was neither true nor false. Instead, they were a necessary part of the political process guarded by the English constitution, hence permissible in colonial politics. Ignore the legal categories and adopt the practical one he told the jury: “Our Constitution has—blessed be God—given us an opportunity, if not to have such wrongs redressed, yet by our prudence and resolution we may in a great measure prevent the committing of such wrongs by making a governor sensible that it is in his interest to be just to those under his care.” The olive branch that Hamilton extended to Cosby had thorns, however: “that when [free men] come to know that a chief magistrate abuses the power with which he is trusted for the good of the people, and is attempting to turn that very power against the innocent” liberty and justice demanded that the governor be subject to public obloquy.7
This was a brilliantly pragmatic and entirely a-legal defense to a statutory offense. In it, Hamilton invoked the spirit of the English constitutionalism, the ideal of self-government, to counter the letter of the statute law. “And has it not often been seen—I hope it will always be seen that when the representatives of a free people are by just representations or remonstrances” [that is, Zenger’s newspaper editorials] “made sensible of the sufferings of their fellow subjects, by the abuse of power in the hands of a governor, that they have declared (and loudly too) that they were not obliged by any law” to remain silent. In other words, set to one side the letter of the law in favor of the larger principles by which a free people must govern themselves. Hamilton did not say that a colonial printer was free to disobey the law, or that the people of the colonies could decide which statutes of Parliament they would obey and which they would protest. “But I pray that it may be considered—of what use is this mighty privilege [of having constitutions] if every man that suffers is silent? And if a man must be taken up as a libeler for telling his sufferings to his neighbor?”8
Hamilton went on for hours, citing case law to gird his doctrine with the mantle of common law. The cases he cited came from the English high courts but were not applicable because Hamilton was not arguing the case in the king’s high courts. A colonial trial court had no authority to revise or interpret Parliamentary acts or the rulings of the king’s courts. For this reason, he was called to order by the bench and by Attorney General Bradley for making “merry” with the law, but paid no mind to the admonitions. He apologized, then went on obfuscating the issues and pouring on further irrelevancies. The final appeal was not to the law, but to the common sense of 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, and 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.”9
Hamilton’s summation to the jury demonstrated the safety with which lawyers in court could argue about the limits of imperial power and the legal context in which those limits were defined. Hamilton avoided language that would invite censure from the bench or worse, words that would constitute a contempt of court. Alexander surely helped Hamilton avoid these pitfalls, having fallen into them himself. In addition, Alexander probably had a good deal to do with the argument, having prepared much of it after he was disbarred by DeLancey but before Hamilton arrived on the scene. But this much was clear to everyone in the courtroom—Hamilton and Alexander put the arts of lawyering to a political end.
They had no intention of reaching toward a doctrine of separation between home country and its provinces. But the manner and the grounds on which they swayed the jury presaged revolutionary lawyering when its resistance to acts of Parliament mattered far more than opposition to Cosby. And sway the jury they did; Zenger left the court a free man.10
The Zenger trial was not a milestone in law at the time. In the Anglo-American tradition of common law, precedent—the way in which earlier cases in courts of appeal influence or determine the outcome of later cases—is a source of law. The Zenger case did not set precedent nor did the counsel on either side expect it to set legal precedent. The court that heard it was not a court of appeal. But the case signaled a different kind of precedent. It was a precedent for the intertwining of law and politics. Although colonial judges from the highest court down to the justices of the peace held their commissions from the crown and could be removed for expressing or even holding political views contrary to the crown’s, judging in England was supposed to be free of political bias. Courts were to base their decisions on discovering the law through reasoned analysis rather than a preference for this or that outcome or litigating party. There were exceptions in England in the years before the American Revolution, but rarely did a court there show as much openly political bias as Cosby’s New York courts. And thus the victory for the defense in the Zenger case was a victory of a political sort as well as an acquittal for the defendant. Such non-strictly legal precedents, that is, precedents with no legal weight but much political impact, would mark the course of the crisis of 1761–1776.11
If not rooted in the letter of the law in 1736, Hamilton and Alexander’s way of broadening the idea of law to support a constitutional ideal had precedent in earlier English history. The gradual, often unpredictable elucidation of fundamental-law doctrine in England during the civil wars of the seventeenth century fostered a vast literature on the constitution. Legal thinking over that course of years was a treasury of doctrine and analogy available long after the Stuarts were gone from the scene. In opposition to the royalists in the 1640s and 1650s, and the reign of James II from 1685 to 1688, a community of discourse unfolded among succeeding generations of lawyers and jurists using many of the same words, often in different ways, always in slightly altered contexts, that Hamilton and Alexander deployed. Creative misunderstandings were as much a part of this transmission, including taking ideas out their context in one time and place and refashioning them to fit new situations. Formulations of rights and liberties were malleable, and worked well enough in new contexts. In this way, from persistent questions and consistent themes, a core theory of good government emerged.12
The linchpin of this legal theory was that government must be accountable to the people. The exercise of power must represent the will of the people. From English jurists, notably Chief Justice Edward Coke, Americans learned that at their best, Parliamentary statutes and the decrees of the courts and the crown embodied the ideal of accountability. The law provided a standard and a process for this accountability, a means to weigh and correct the actions of those in power. Should the government abuse its trust by ignoring the best interests of the people or succumbing to avarice and ambition, the people might resist the government in the name of that fundamental law. “The right of resistance 
 was still viable in the mid-eighteenth century, providing a legal basis for the argument that Parliament could not exceed its constitutional powers and implying that it was somehow accountable if it did.”13
Opposition to the crown wore a different face after the so-called Glorious Revolution of 1689. Then Parliament finally forced on newly enthroned William of Orange and Mary (nĂ©e Stuart) a formal written bill of rights. It included a list of royal offenses against the people’s rights, followed by a declaration of those rights. Among the latter, phrased in the negative—an important point as events would almost immediately prove—were “That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal; That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is...