Save the Date: Happy Birthday Hamilton 2015 Events!

The Alexander Hamilton Awareness Society is putting on its annual program of Hamilton events in New York City on January 9-11, 2015.  The flyer with a description of all the events is available here.  The schedule of events is citywide and open to the public.  All of the programs are extremely interesting and offer some new perspectives into Hamilton’s life.

I will be presenting two talks on January 9 and 10 (descriptions below).  The first talk will be at the Museum of American Finance about Hamilton’s experience as a young lawyer fighting discriminatory laws directed at the Tories of New York.  The second talk will be at Morris-Jumel Mansion in Harlem and discuss the high-profile criminal trial for which Hamilton and Burr teamed up to defend accused murderer Levi Weeks.

A ‘Bar Fight’ That Changed America: Alexander Hamilton, the Trespass Act, and the Case of Rutgers v. Waddington

When: Friday, Jan. 9th 2015 at 2-3:30pm
Where: Museum of American Finance, 48 Wall St, New York, NY

Pooja Nair, Esq. speaks on Hamilton’s role in opposing the Trespass Acts and upholding the rule of law in New York City and the United States. As a newly-minted lawyer after the Revolutionary War, Hamilton stepped into a firestorm of controversy by defending a Tory merchant in his firsthigh profile case. This case, Rutgers v. Waddington, took on the Trespass Act, whichhad been enacted at the end of the Revolution to strip Tories of their property. The results of the trial shapedthe development of New York City and was foundational tothe development of key principles of the American legal system.The talk is one hour, followed by a Q&A session. 

The Manhattan Well Murder

When: Saturday, Jan. 10th 2015 at 3-4:30pm
Where:Morris-Jumel Mansion, 65Jumel Terrace, New York, NY

Pooja Nair, Esq. will speak about the Manhattan Well murder trial, the first fully recorded murder trial in the United States. Aaron Burr and Alexander Hamilton teamed up for this dramatic case in 1800 for the defense of Levi Weeks. Weeks was accused of the murder of a young woman whose body was found in the bottom of a well built by Aaron Burr’s Manhattan Company. Come learn about this mysterious murder and the intense trial Burr and Hamilton worked together on four years before they met on the dueling grounds.

The talk is one hour, followed by a Q&A session.

Aaron Burr's strategim at the Weeks [i.e. Levi Weeks] trial

After 1800: Hamilton and the Twelfth Amendment

I wrote earlier about Hamilton’ role in the Election of 1800, in which Thomas Jefferson and Aaron Burr received an equal number of electoral votes and Hamilton was the force behind Jefferson’s controversial victory in the Senate vote.  After the election, people immediately began calling for reform to prevent the events of 1800 from occurring in future elections.  Although Republicans ultimately embraced the reform, the impetus for inserting such a provision into the Constitution largely came from Hamilton and his fellow Federalists.

In Federalist No. 68, Hamilton noted that “the mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.”  He emphasized that “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”

Hamilton recognized that the backdoor politics that came to the brink of creating a Burr presidency was contrary to the goals of the Constitution, and was a major supporter of the movement to pass a Twelfth Amendment to distinguish the positions of President and Vice President.  Henry Cabot Lodge identified Hamilton as the originator of the Twelfth Amendment.

In his 1901 Study of the Twelfth Amendment of the Constitution of the United StatesLolabel House noted that though the Twelfth Amendment was “finally passed as a Republican party measure, the earliest advocates of the principle involved were Federalists.  It was recommended first by the Federalist Legislature of New Hampshire, twice by the Federalist Legislature of South Carolina, unanimously in New York, where the majority was Federalist…”

Hamilton proposed the resolution to the Federalist-dominated New York State Legislature on January 29, 1802.

Resolved, as the sense of the Legislature, that the following amendments ought to be incorporated into the Constitution of the United States as a necessary safeguard in the choice of a President and Vice President against pernicious dissensions as the most eligible mode of obtaining a full and fair expression of the public will in such election.

Hamilton’s proposed version of the Twelfth Amendment:

1st. That Congress shall from time to time divide each State into Districts equal to the whole number of Senators and Representatives from such state in the Congress of the United States, and shall direct the mode of choosing an Elector of President and Vice President in each of the said Districts, who shall be chosen by Citizens who have the qualifications requisite for Electors of the most numerous branch of the State Legislature, and that the districts shall be formed, as nearly as may be, with an equal proportion of population in each, and of Counties and, if necessary, parts of Counties contiguous to each other, except when there may be any detached portion of territory not sufficient of itself to form a District which then shall be annexed to some other part nearest thereto.

2nd. That in all future elections of President and Vice President the persons voted for shall be particularly designated by declaring which is voted for as President and which as Vice President.

The version of the amendment that was ultimately passed by Congress differs from Hamilton’s proposal in that it did not adopt Hamilton’s proposed language regarding the role of districts.  The Twelfth Amendment was passed by Congress on December 9, 1803.  Interestingly, contemporary newspaper The Balance reported that was a movement in the Senate, “contrary to all precedent,” to get the bill signed by the President before sending it to the states.

12th Amendment


[The Balance, December 27, 1803]




This bill was ultimately voted down, and the amendment was sent to the states for ratification.  The Twelfth Amendment was finally ratified on June 15, 1804.

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States

Hamilton on Jury Nullification

Jury nullification, or the ability of a jury to find a defendant not guilty because they disagree with law has been an important part of American history, and was successfully used by both William Penn and John Peter Zenger against British laws in the pre-Revolution period.  The most influential instance of jury nullification was in the 1735 trial of John Peter Zenger, who was charged with printing seditious libels against the British government of New York.  Under the law in the colonies, truth was not a defense to libel (the same law that Hamilton argued against in the Croswell case).  Zenger’s lawyer, Andrew Hamilton (no relation to Alexander) urged the jury to reach their own conclusions about the legal issue, notwithstanding the judge’s firm instruction.  The jury did so and acquitted Zenger completely, much to the chagrin of the British government.

In the Croswell case, Hamilton argued the case on behalf of a publisher who was charged with libel for publishing information about Thomas Jefferson.  Under the laws of New York at the time, libel was a crime regardless of the truth of the statement.  However, Hamilton argued that this interpretation of the law was incorrect and unethical.  Hamilton’s outline is interesting, both because of the points about libel and because of its focus on the jury’s responsibility to follow their conscience rather than the letter of the law.

Hamilton’s entire brief outline is below, with the passages about the power of the jury bolded :

I.—The liberty of the press consists in the right to publish with impunity truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals.
II.—That the allowance of this right is essential to the preservation of free government—the disallowance of it, fatal.
III.—That its abuse is to be guarded against by subjecting the exercise of it to the animadversion and control of the tribunals of justice; but that this control cannot safely be intrusted to a permanent body of magistracy, and requires the effectual co-operation of court and jury.
IV.—That to confine the jury to the mere question of publication and the application of terms, without the right of inquiry into the intent or tendency, referring to the court the exclusive right of pronouncing upon the construction, tendency, and intent of the alleged libel, is calculated to render nugatory the function of the jury; enabling the court to make a libel of any writing whatsoever, the most innocent or commendable.
V.—That it is the general rule of criminal law, that the intent constitutes the crime, and that it is equally a general rule that the intent, mind, or quo animo, is an inference of fact to be drawn by the jury.
VI.—That if there are exceptions to this rule, they are confined to cases in which not only the principal fact, but its circumstances can be and are specifically defined by statute or judicial precedent.
VII—That in respect to libel there is no such specific and precise definition of facts and circumstances to be found, that consequently it is difficult, if not impossible, to pronounce that any writing is per se and exclusive of all circumstances libellous; that its libellous character must depend on intent and tendency, the one and the other being matter of fact.
VIII.—That the definitions or descriptions of libels to be found in the books predicate them upon some malicious or mischievous intent or tendency, to expose individuals to hatred or contempt, or to occasion a disturbance or breach of the peace.
IX—That in determining the character of a libel, the truth or falsehood is in the nature of things a material ingredient, though the truth may not always be decisive, but being abused, may still admit of a malicious and mischievous intent which may constitute a libel.
X—That in the Roman law, one source of the doctrine of libel, the truth in cases interesting to the public, may be given in evidence. That the ancient statutes probably declaratory of the common law, make the falsehood an ingredient of the crime. That ancient precedents in the courts of justice correspond, and that these precedents to this day charge a malicious intent.
XI.—That the doctrine of excluding the truth as immaterial originated in a tyrannical and polluted source, the court of Star Chamber, and that though it prevailed a considerable length of time, yet there are leading precedents down to the Revolution, and even since, in which a contrary practice prevailed.
XII.—That this doctrine being against reason and natural justice, and contrary to the original principles of the common law enforced by statutory provisions, precedents which support it deserve to be considered in no better light than as malus usus which ought to be abolished.
XIII.—That in the general distribution of powers in our system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive. That in civil cases it is always so, and may rightfully be so exerted. That in criminal cases the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is intrusted with the power of deciding both law and fact.
XIV.—That this distinction results: 1, from the ancient forms of pleading in civil cases, none but special pleas being allowed in matter of law; in criminal, none but the general issue; 2, from the liability of the jury to attaint in civil cases, and the general power of the court as its substitute in granting new trials, and from the exemption of the jury from attaint in criminal cases, and the defect of power to control their verdicts by new trials, the test of every legal power being its capacity to produce a definitive effect liable neither to punishment nor control.
XV.—That in criminal cases, nevertheless, the court are the constitutional advisers of the jury in matter of law; who may compromit their conscience by lightly or rashly disregarding that advice, but may still more compromit their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong.

Jury nullification, and the influence of the jury as an institution has been on the decline.  Currently, less than 1% of criminal and civil cases actually go before a jury.  Courts routinely tell juries that they have no power to disregard or interpret the law.  This discouragement makes sense in most cases: after all, allowing juries to decide cases purely on their emotions can lead to irrational appeals and decisions made from bias.  While jury nullification may help protect defendants from unfair laws, it may also have the unwanted effect of empowering community biases and racism.

However, despite these concerns, Hamilton’s vision of the jury and their power of conscience is a powerful one.

The Economist Blog  ran a story last year about the continuing right of nullification:

Juries do not only decide guilt or innocence; they can also serve as checks on unjust laws. Judges will not tell you about your right to nullify—to vote not guilty regardless of whether the prosecution has proven its case if you believe the law at issue is unjust. They may tell you that you may only judge the facts of the case put to you and not the law. They may strike you from a jury if you do not agree under oath to do so, but the right to nullify exists. There is reason to be concerned about this power: nobody wants courtroom anarchy. But there is also reason to wield it, especially today: if you believe that nonviolent drug offenders should not go to prison, vote not guilty.

New Hampshire passed a law last June that went into effect on January 1, 2013.  This law states:

“[A] Right of Accused. In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

Notwithstanding the New Hampshire legislation, the overwhelming trend of cases across the country is to limit jury nullification and discharge jurors who openly state they disagree with the law.  While this may maintain uniformity and a sense of law and order, I wonder if there should still be a place for Hamilton’s vision, in instances where jurors fundamentally feel that the law creates unjust results.