BOOK REVIEW By M. KELLY TILLERY Indelible Ink – The Trial of John Peter Zenger and the Birth of America’s Free Press

ichard Kluger won the Pulitzer in late 1733. Alexander and Morris RPrize for his masterful expose intended to use it as a vehicle to make of the cigarette industry in Cosby and his royal administration Ashes to Ashes in 1996, and his study accountable to the people. As the most of school desegregation, Simple Justice prominent and wealthy lawyer in New (1975), is a classic. His latest, equally York, Alexander had a lot to lose and excellent if less controversial should be thus concealed his involvement, lest he of interest to every Philadelphia Lawyer. be charged with seditious libel or worse. Indelible Ink is the most thoughtful, Zenger was a businessman without comprehensive and well-researched any particular political leanings, but study of the 1735 criminal trial in New he knew this was risky business. So York City of newspaper publisher John he made a deal. He would print, and Peter Zenger on charges of seditious Morris and Alexander would write, but libel. While you may know that Zenger Alexander would pay for everything and was acquitted, that he was defended by a defend him for free if he was charged. Philadelphia lawyer Andrew Hamilton, And Zenger would not betray his and that his victory was based upon the backer’s identity. defense of truth, Kluger sets forth so The newspaper was a hit as each much more. And, it is not all what you issue turned up the heat on Cosby. After might expect. only 11 issues, Cosby could take it no Kluger lays the groundwork for more—he had Zenger charged with the trial with a lively, detailed review seditious libel. But a grand jury refused of colonial New York politics, some of to indict. Morris and Alexander were which makes modern politics appear emboldened and hit harder at Cosby’s rather tame in comparison. But the story Indelible Ink – The Trial of John clumsy attempt to silence the free press. often turns and returns to Philadelphia, Peter Zenger and the Birth of Although many suspected which was then larger than New York America’s Free Press Alexander and Morris to be the authors City. By Richard Kluger of the allegedly offending articles, they A young German-American, John 364 pages remained silent, as did Zenger. And Peter Zenger, began his eight-year $27.95, W.W. Norton & Co., 2016 Cosby seemed content to charge only the apprenticeship in 1710 with printer hapless, apolitical printer. William Bradford in New York, but Governor William Cosby. After Issue #49, Cosby tried again, moved to Philadelphia in 1718 to work By 1726, a restless Zenger split but a second grand jury also refused with Bradford’s son, Andrew, also a from Bradford and set up a competing to indict. Undeterred, Cosby had the printer. There, he married Mary White, printing shop across from the Morrisite Governor’s Council issue a warrant for moved to Maryland, and had a son. haunt, the Black Horse Tavern. Zenger Zenger’s arrest. The printer was thrown Mary died in 1722, so Zenger returned was soon printing tracts written by into a cell in City Hall and the lawyer, to New York to work again with the Morris and Alexander. Bradford’s paper Alexander, donned his barrister’s wig elder Bradford. In 1725, together they was the house organ for Cosby and and headed for court. The battle lines launched New York’s first newspaper, crew, so Morris and Alexander turned were drawn. New-York Gazette. to Zenger to help get their anti-Cosby Zenger had a net worth of only 40 At the time, two rival political message out. pounds. But bail was set at 10 times that. factions battled for power in New York, The result, the brainchild of Morrisite His wealthy patrons could have bailed the Morrisites under lawyer Lewis James Alexander, the unquestioned best him out, but instead let him languish Morris and his protégé lawyer, James lawyer in New York, was the Zenger- in jail, because their willing pawn was Alexander, and the Cosbyites under published “New-York Weekly Journal” more useful as a martyr.

the philadelphia lawyer Spring 2020 37 Yet, a third grand jury refused having twice, as a member of the the matter published by Zenger was to indict. So, now, Cosby’s attorney Pennsylvania Governor’s Council, voted true and that which is true cannot be general charged Zenger by information to censure, prosecute, and punish printer seditious libel. While we take this for “false, scandalous, malicious and Andrew Bradford for seditious libel. point as axiomatic, it was not so then. seditious” content in Issues #13 and #23. But Hamilton knew the value to a In fact, truth was clearly then not a Although the trial judge was a lawyer of a cause celébre and agreed to defense, so what Hamilton (channeling loyal Cosby man, public opinion was defend Zenger for no fee. Alexander had Alexander) sought and secured was jury decidedly with Zenger. Alexander offered him a starring role in the case nullification. honored his secret bargain with Zenger of the century—an offer he could not Since Zenger admitted the and mounted a vigorous defense, filing refuse. publications, no witnesses were called. exceptions challenging the Court itself. What Hamilton probably did not The jury of 12 men deliberated for only Not amused, the Court barred both appreciate until he made his surprise 10 minutes, voting, as Hamilton asked Alexander and his associate William appearance in Court was that Alexander them, to “their conscience!” Smith from practicing law in the had masterminded, orchestrated, and Zenger had spent nine months colony—an extraordinary turn of events scripted almost every detail of this in prison. He became a martyr and evidencing the bitter partisanship afoot. affair from the beginning, all behind the Hamilton a revered hero. Alexander The Court then appointed a young scenes, including virtually every aspect remained in the shadows, smiling but, John Chambers to represent Zenger. of Zenger’s defense. Although eloquent unheralded. Alexander and Smith quickly determined and brilliant in his own right, Hamilton If he had chosen the limelight, today that Chambers was not up to this task. would be playing a part written by we might be telling stories of the first So Alexander did what he did best: he another. Yet, only he would get the “New York Lawyer” James Alexander, ghostwrote a lengthy statement for credit and the glory, while the real hero instead of Andrew Hamilton, the first Zenger to make to the Court and another remained in relative historical obscurity. “Philadelphia Lawyer.” for Chambers. The defense that Hamilton mounted And, he did one more thing: he had been devised in great detail in secretly engaged “the most accomplished Alexander’s notes written before his M. Kelly Tillery (tilleryk@pepperlaw. barrister in the American colonies,” disbarment. Alexander shared them com) is a partner in the Intellectual Philadelphia lawyer Andrew Hamilton. and his experience and wisdom, which Property Department at Pepper Hamilton Curiously, Hamilton actually had Hamilton used to achieve victory. The LLP. a reputation for opposing a free press, defense was simple, albeit illegal—

Ethics continued from page 35 by itself, makes the ethical decisions easier, because: 1) I wasn’t greedy; 2) I had no just because they have less consequence student loans; and 3) my spouse had ten- a pig about money; second, my spouse had for me personally, economically, and ca- ure. The only thing that’s changed is that great jobs and, eventually, tenure. Those reer-wise. A friend put it this way: “it’s she is emerita. I still speak my mind, and— both made the task of being ethical and no biggie if there’s a problem.” And that’s mostly—give the advice the client needs professional easier; the potential personal something we all need to keep in mind, rather than what they want. I hope there consequence of tough decisions or advice both when evaluating our own responsibili- has been a slight reduction in my callow- now are not so dire.2 But still, there were ties and adherence to rules and norms, and ness and incivility. But I know that I have tensions between the profession and the particularly when critiquing the actions of clients, partners, judges, and friends who business. Now, after 40-some years, those others. I am no braver than I was years ago. say otherwise. But I am no longer quite as potentially “career-ending” or “job-end- But there is less consequence for me. Peri- frightened when they do, and that makes all ing” decisions don’t mean the same as they od. Sure, I can still lose a client or a job, but the difference. did when I was a 30-something lawyer. I’m not a career, because of where I am in life. not looking at more decades of lawyering; I will not be betting the “ranch” (actually, who knows? So whatever the economic in my case, apartment) with my choices, 1“Obstreperosity,” 33 ABA Litigation, and personal risks are of doing the right because the economics are, for me, pretty No. 1, Fall 2006 thing and not bending to expediency, those well set. I might lose some income or piece risks now carry less personal consequence. of economic security, but I am no longer in 2 Gilbert and Sullivan, “I am the Captain of It has nothing to do with being “older and danger of having to start over. the Pinafore” (1878) wiser;” just older. The children are grown, So, what does that mean, day-to-day? mortgages are paid, and we are learning It seems less threatening to speak my mind, about RMDs. though I feel like I always did. In a light- Johnny Myers is presently Of Counsel at That profession/business dichotomy hearted way I was always telling lawyers Montgomery McCracken in Philadelphia. referenced at the beginning of this paper who asked that it was easy for me to fol- He has been a lawyer since 1972. You do just doesn’t loom as large now. And that, low my notion of the “right thing to do” the math.

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