The Founders at Home: The Building of America, 1735-1817

by Myron Magnet

  His father got him a clerkship with New York City’s other top lawyer, William Smith, Sr., and made him take it. In July 1746, with a sinking heart, the twenty-two-year-old returned to the grindstone and found . . . he liked it. The English-born, Yale-educated, broadly cultivated Smith proved an amiable teacher, who believed that wide general reading was key to making a good lawyer, a precept his bookish clerk embraced.18

  LIVINGSTON WAS NOT just absorbing the law in Alexander’s and Smith’s offices but also marinating in a journalistic and political tradition that within a few years he would carry on. Alexander had been the editor and main writer of America’s first opposition newspaper, the New-York Weekly Journal, which he founded in 1733 and modeled on an English magazine of the 1720s, Cato’s Letters, by radical Whigs John Trenchard and Thomas Gordon, later also Livingston’s model for the Independent Reflector. Alexander, who sometimes simply reprinted Trenchard and Gordon’s essays, wholeheartedly endorsed their theory of limited monarchy, in which the laws, backed by a free press, protect everyone’s basic rights against invasion by all state authorities, from the king on down—including especially, when Alexander and Smith wrote, New York’s royal governor, William Cosby.19

  Sparking the first constitutional crisis in British America—and the most celebrated trial of the pre-revolutionary era—Cosby had set out to sue one of his councilors in a dispute over the spoils of office. Fearing that no jury would support his dubious claim, however, he asked the Supreme Court to sit as a nonjury Exchequer Court, an exotic ploy that outraged New Yorkers, who thought that trials without juries violated the rights of free-born British subjects. When Chief Justice Lewis Morris, owner of the sprawling Morrisania manor in Westchester, forbade the maneuver as illegal, Cosby fired him and elevated loyal supporter James De Lancey, thirty, to the chief justiceship instead. “THE PEOPLE of this city,” Alexander thundered in his January 1734 issue, “think, as matters now stand, that their LIBERTIES and PROPERTIES are precarious, and that SLAVERY is like to be entailed on them and their posterity, if some past things be not amended.”20

  Alexander published his articles anonymously; the only name on the Weekly Journal’s masthead was its printer’s, John Peter Zenger, one of the 3,000 Palatine German refugees who had reached America in 1710, the biggest German immigration of colonial times. When Zenger also printed two broadside ballads deriding the authorities for starting to “chop and change” the colony’s judges, Cosby had him arrested in November 1734 for seditious libel in the ballads and in the newspaper, setting impossible bail of ten times his net worth. Two grand juries agreed that the ballads were libelous but professed bewilderment as to who might have written or published them, and so refused to indict. Cosby, exasperated, ordered his attorney general to bring charges on a so-called “information,” a device that, while arguably legal, was as arbitrary and irregular as an Exchequer Court.21

  Alexander and Smith volunteered as Zenger’s lawyers, and their opening statement highlighted the trial’s threat to British constitutional rights. They began by challenging the legitimacy of the commissions of two of the three presiding judges, including newly minted Chief Justice De Lancey, who served “during pleasure” of the governor rather than “during good behavior” (for life, that is), as was customary in England. As any reader of Cato’s Letters would know, officials who serve at pleasure can easily decline into henchmen of the executive officer who can fire them. De Lancey met the challenge by disbarring the two lawyers for their impudence—though even he couldn’t sit still for the prosecutor’s shameless jury-rigging that put Cosby’s baker, shoemaker, and tailor in the jury pool. For this part of the trial, at least, he required fair play.22

  THE DISBARRED Alexander and Smith (both reinstated in 1737) enlisted as their replacement America’s most famous lawyer, Benjamin Franklin’s older friend Andrew Hamilton of Philadelphia, who, according to historian of New York William Smith, Jr. (once Livingston’s fellow clerk), “had art, eloquence, vivacity, and humor, was ambitious of fame, negligent of nothing to ensure success, and possessed a confidence which no terrors could awe.”23 Hamilton purposely turned the case into an epochal constitutional showdown, beginning with his opening statement on August 4, 1735, when he materialized in the courtroom as a complete surprise to the judges and prosecution, and announced himself as Zenger’s lawyer. “I’ll save Mr. Attorney the trouble of examining his witnesses,” Hamilton said, and “confess that [Zenger] both printed and published the two newspapers” for which he’s being prosecuted. The real question was whether they were true or false.24

  Hold on, Chief Justice De Lancey interrupted—correctly objecting that the law of that era said that a libel is no less libelous for being true. After all, as the prosecutor had noted, government, which protects our lives, religion, and property, is too essential to allow people to weaken or subvert it by publishing scandal, whether true or false, about the officials who administer it. The jury’s duty is only to decide if Zenger published the papers, and it must then leave it to the Court to decide if they are libelous.25

  Not necessarily, Hamilton countered. The jury’s duty includes considering whether the law at issue invades the basic rights of Englishmen, and if so, jurors should ignore it as illegitimate. “This of leaving it to the judgment of the Court whether the words are libelous or not in effect renders juries useless,” Hamilton observed.26

  Why didn’t the chief justice, who’d had no qualms about disbarring Alexander and Smith for similar effrontery, stop Hamilton in his tracks? Because, beyond his eminence and courtroom charisma, no trivial matters—along with his good sense not to attack the judges personally—Hamilton had also sounded one of the deepest chords of British jurisprudence, and even the arrogant young De Lancey didn’t dare cut him off. “The people of England,” the defense attorney argued, striking the keynote of Sir Edward Coke’s teachings, have rights that “nature and the laws of our country have given us” since time immemorial. Chief among these, Hamilton said, paraphrasing the key thirty-ninth chapter of Magna Carta, are that “their liberties and properties” cannot be taken away “without the judgment of a jury of their equals,” and no one can stop them from “exposing and opposing arbitrary power . . . by speaking and writing truth.”27

  All the precedents the prosecution cites for criminalizing truthful speech as libel, Hamilton noted, are cases from the Star Chamber, the arbitrary court of royal officials that Charles I, in particular, wielded as an infamous weapon of tyranny before the Long Parliament abolished it in 1641. They come from “the reign of an arbitrary prince,” in which “judges, who held their places at pleasure” (like De Lancey) presided over juryless proceedings, brought by informations rather than indictments, trampling the “ancient and sacred right of trials by grand and petit juries” that normally protect the liberties of Englishmen—and that the Glorious Revolution thankfully reasserted in 1688, Hamilton reminded his hearers.28

  Zenger, though shamefully charged by a Star Chamber–style information rather than by a grand jury indictment, at least now faces a trial jury of twelve “honest and lawful men,” said Hamilton, reaching his peroration. “In your justice lies our safety,” he told the jurors—whom he had artfully transformed, remarked William Smith, Jr., in his History, into “triers of their rulers rather than Zenger.” Should they acquit Zenger, Hamilton concluded, “every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny.” For the law they vindicate, as one colonist praised their swift not-guilty verdict, is natural law—what “ought to be law, and will always be law wherever justice prevails.”29

  James Alexander’s 1736 Brief Narrative of the Zenger trial—one of the first of those pamphlets that John Adams thought sowed the Revolution—carried to every corner of British America Hamilton’s virtuoso appeal to the historical liberties of the British constitution, to natural rights, and to abstract justice, and the colonists were to invoke all of them in various permutations for the next
forty years.30 “The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America,” Gouverneur Morris, Chief Justice Morris’s great-grandson and author of the final draft of the U.S. Constitution, pronounced decades later.31 To London, Alexander’s pamphlet brought news that Americans believed they had certain ironclad rights that they would not give up without a fight.

  WHILE SERVING as Alexander’s and Smith’s clerk, William Livingston also had more youthful concerns. Two years into his apprenticeship with Alexander, he fell in love at first sight with Susanna French, a young woman “above panygerick,” he wrote, “uniting the Saint and Lady in one.” She soon agreed to marriage, though apprenticeship rules required waiting until Livingston’s clerkship would end two years later. Before then, however, Livingston had been fired and had transferred to Smith’s office, extending the wait.

  And then, Susanna (more lady than saint, it seems) got pregnant.32

  The couple snuck off to New Jersey, where a friendly minister broke every rule and secretly married them in March 1747. They tried to hide their misadventure all their lives—though with imperfect success, since during the Revolution a Tory newspaper denounced Livingston, then governor, as “a most notorious fornicator.”33 Childbirth in May or June left Susanna ill and weak, and just after she recovered, her baby son died in September. Of twelve more babies, seven survived to adulthood, and after almost forty years of marriage Livingston wrote his wife, “If I was to live to the age of Methusaleh, I believe I should not forget a certain flower that I once saw in a certain garden; and however that flower may have since faded, towards the evening of that day, I shall always remember how it bloomed in the morning, nor shall I ever love it the less.”34

  Not just love but also poetry filled young Livingston’s fancy. Shortly after his baby’s birth, he published a skillful imitation of Pope’s heroic couplets, Philosophic Solitude, in conventional praise of the simple, rural life, lived

  Far from the painted belle, and white-gloved beau,

  The lawless masquerade, and midnight show.

  Immensely popular, the poem went through more than a dozen editions over the next forty years and still appeared in anthologies in the mid-1790s, after its author’s death.35

  One passage, for all its conventionality, makes you wonder if Livingston’s lifelong scorn for pretentiousness, snobbery, and even injustice sprang from his judgment of his own rich and powerful father and grandfather:

  Oft on the vilest[,] riches are bestow’d,

  To show their meanness in the sight of God.

  High from a dunghill, see a Dives rise,

  And Titan-like insult the avenging skies:

  The crowd in adulation calls him lord,

  By thousands courted, flatter’d, and adored:

  In riot plunged, and drunk with earthly joys,

  No higher thought his grovelling soul employs;

  The poor he scourges with an iron rod,

  And from his bosom banishes his God.

  The indulgent William Smith forgave Livingston for flouting the rule that apprentices can’t marry, and the newlywed rejoined his fellow clerks, increasingly his close friends and allies—the boss’s son (and future historian) William Smith, Jr., and John Morin Scott, both Yale graduates related to Livingston by marriage. All three were Presbyterians, too, once Livingston left the Dutch Reformed Church in search of sermons in English. The three clerks formed a discussion club that New York’s Tories branded a seditious “republican cabel,” thanks to the sponsorship of the elder Smith and James Alexander, the two Zenger-case Whig notables. Nonsense, Livingston replied in print; they were high-minded, philosophizing literati, not tavern-haunting snobs like their critics. But the three young men had already gained notoriety as the radical “triumvirate.”36

  In October 1748, Livingston joined the New York Bar, earning just under £100 a year doing wills and deeds for family and friends, when the big house he rented for the next two decades on busy Water Street cost £65 annually. Still struggling three years later, he wrote:

  Avoid, avoid, the inextricable Snare

  Nor madly venture to approach the Bar;

  But instant clipping vain Ambition’s Wing

  Turn Carman, Cobbler, Fiddler, any Thing.

  But just then, business took off, and by 1754 he was earning £450 a year and counted as one of New York’s top lawyers.37 Once so lank that he disparaged his “spindle shanks,” along with his “long-nosed, long-chin’d ugly looking appearance,” he ripened into a “dignified corpulence,” thanks to his love of oysters, lobsters, and only the best wine, “at any Price.”38

  Still, his heart lay with literature, and early in 1749 the triumvirate of ex-clerks, along with another friend, met to plan a weekly magazine on the model of Addison and Steele’s Spectator, “for correcting the taste and improving the Minds of our fellow Citizens,” Livingston wrote. They’d launch their journal once they had written 150 articles in advance, so they’d never run out of material. Nearly three years later, with only twenty stories in the bank, Livingston, now twenty-nine, could wait no longer, and he launched the journal, ultimately writing thirty-three of the fifty-four essays, and part of four others.39

  WHEN THE FIRST issue of the Independent Reflector appeared on November 30, 1752, it looked like Addison and Steele’s journal but sounded like Trenchard and Gordon’s. As in Cato’s Letters, politics, not taste, was the keynote. The magazine, Livingston wrote, wouldn’t shrink “from vindicating the civil and religious RIGHTS of my Fellow Creatures: From exposing the peculiar Deformity of publick Vice, and Corruption: and displaying the amiable Charms of Liberty, with the detestable Nature of Slavery and Oppression.”40 Nor would he hesitate to point fingers, he promised, echoing Pope’s Epilogue to the Satires, because “the obdurate Criminal, who fears not GOD himself, is seized with a Panic, at the Apprehensions of having his Actions publickly exposed.”41

  In the tenth issue, his corruption probe hit a nerve and sparked an uproar: city councilors, he reported, had schemed to sell their relatives city-owned East River lots at prices amounting to a £6,000 theft of public funds.42 Magazine sales soared, and, in a New York whose squalid eighteenth-century politics often turned on the business and personal feuds of the Livingston and De Lancey clans, William Livingston also enjoyed shaming the De Lanceyite villains in this case.

  HIS NEXT CAMPAIGN roused more furor—and boosted sales higher. The ruckus began with his defense of the Moravians, German pietists whose quirky beliefs troubled their neighbors. Their religious principles were nobody’s business, Livingston wrote. After all, “Every Man is orthodox to himself, and heretical to all the World besides.” All that concerns the civil authorities is conduct, and the Moravians “are a plain, open, honest inoffensive People,” the Reflector observed, “irreprehensible in their Lives and Conversations.” However much a “Pulpit-Scold” might dislike their worshipping without the “Bows and Capers” of established orthodoxy, they are entitled to “the undisturbed Enjoyment of their civil and religious Liberties.”43 In response, some of those pulpit-scolds demanded, loudly but in vain, that a grand jury indict the implacably anticlerical Livingston for libel.44

  The “Independent Reflector” Collection of the Author

  This skirmish proved but a prologue to the Reflector’s main battle, making the province of New York “a scene of confusion, of uproar, of disorder,” as a Tory exile grumpily recorded, and leading Livingston, like so many seventeenth- and eighteenth-century English and American thinkers, from a defense of religious liberty to explicit political radicalism.45 The fight concerned the founding of King’s College, later Columbia, which New York’s Anglicans wanted to set up as a sectarian institution with a royal charter.46 Their plan tore open an old wound: in a colony only 10 percent Anglican, and in a city with two Dutch Reformed churches, and one each Presbyterian, Lutheran, German Reformed, and Anglican—plus a Friends meetinghouse and a synagogue—only the
Dutch churches and the Anglican Trinity Church had royal-charter protection. More gallingly, Trinity alone received all the money from a 1693 tax imposed to support Protestant ministers, not specifically Anglican ones. Now the Anglicans (including the De Lanceys, who long ago had left the Huguenot church for Trinity in a huff) wanted to set up their own college with money raised from lotteries the Assembly had licensed for the general “Advancement of Learning,” with an Anglican faculty to be paid from the colony-wide excise tax.47 The “Money hitherto collected is public Money,” the Reflector objected. “When the Community is taxed, it ought to be for the Defence, or Emolument of the Whole: Can it, therefore, be supposed, that all shall contribute for the Uses, the ignominious Uses of a few?”48

  Moreover, as Livingston surveyed the colonial colleges, most looked like the Yale he remembered, places less of enlightenment than of indoctrination—literally, for they were training prospective clergymen in the doctrines of their sects. Any college has to be about forming as well as informing students’ adolescent minds, of course, so much college teaching is bound to be indoctrination, with powerful consequences.49 “The Principles or Doctrines implanted in the Minds of Youth,” Livingston wrote, “pass from the Memory and Understanding to the Heart, and at length become a second Nature.” In time they “appear on the Bench, at the Bar, in the Pulpit, and in the Senate, and unavoidably affect our civil and religious Principles.”50 So instead of indoctrinating students with narrow, sectarian dogma, why not infuse them with “public Spirit and Love of their Country” that will “make them more extensively serviceable to the Common-Wealth?”51