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

by Myron Magnet

  Because the college will shape New York’s future as its graduates move into government, why not have it publicly chartered, funded, and controlled by the people’s elected representatives in the Assembly, to allay fears that any one sect will gain control and impose a single viewpoint, based on “Doctrines destructive of the Privileges of human Nature”?52 A rich multiplicity of competing opinions will surely foster deeper and freer thought than an enforced, intellectually stultifying, possibly false and possibly objectionable orthodoxy. Madison later echoed Livingston’s contention that “the Variety of Sects in the Nation, are a Guard against the Tyranny and Usurpation of one over another” in his celebrated Federalist 10, which argued that a big republic is better than a small one, because the clash among “the variety of sects dispersed over the entire face” of it will ensure that no sect, faction, or interest group can control the rest.53

  Of all possible sectarian colleges (and Livingston imagined only Protestant ones possible in America), an Anglican one would be the worst, he believed. It wasn’t just that the Church of England retained “too many popish relicks”; more important, its High Church faction had never accepted the Glorious Revolution of 1688, with its strictly limited monarchy and Bill of Rights. Instead, High Churchmen clung to their belief in the divine right of kings, and they begrudged the 1689 Toleration Act that granted freedom of worship to Protestants who didn’t belong to the official, established Anglican church headed by the monarch.54 Given the chance, they’d restore the oppression of Dissenters that prevailed in England before that law—oppression, Livingston reminded his non-Anglican readers, that “drove your Ancestors to this Country, then a dreary Waste and a barren Desert.” Never forget, he exhorted, “the countless Sufferings of your pious Predecessors, for Liberty of Conscience, and the Right of private Judgment. What Afflictions did they not endure, what fiery Trials did they not encounter, before they found in this remote Corner of the Earth, that Sanctuary and Requiem which their native Soil inhumanly deny’d them? . . . And will you entail on your Posterity that Bondage, to escape which they brav’d the raging Deep, and penetrated the howling Wilderness!”55

  Despite Livingston’s campaign, the college opened as an Anglican institution in July 1754, with seven students meeting in the Trinity Church vestry. A 1756 deal split the lottery money between the college and a quarantine center for crewmen of infected ships—“between the two pest houses,” William Smith, Sr., scoffed—and the college didn’t shake off the stigma the Reflector had placed on it until after the Revolution.56

  THE POLITICAL ISSUES at the heart of the college battle—taxation and freedom of thought and conscience—led Livingston to set forth his deepest political beliefs, the first public exposition of Lockean social-contract theory in the colonies.57 Journalistic and unsystematic, his half-dozen issues on the subject nevertheless add up to a coherent argument that provided the Revolution’s key justification. Untangled, Livingston’s case runs like this—and it’s worth hearing it in his own words, because they resounded in the colonists’ ears for the next forty years as loudly as life, liberty, and the pursuit of happiness echo in ours.

  Before there was any government, nature created men free, and endowed them with equal rights. But in that primitive “State of Nature,” where physical strength carried all before it, “the Weak were a perpetual Prey to the Powerful.” In order to “preserve to every Individual, the undisturbed Enjoyment of his Acquisitions, and the Security of his Person,” men established society and chose rulers to keep the peace and settle disputes, by force if need be.58

  This was a choice of the lesser of two evils, for “Government, at best, is a Burden, tho’ a necessary one. Had Man been wise from his Creation, he . . . might have enjoyed the gifts of a liberal Nature, unmolested, unrestrained. It is the Depravity of Mankind that has necessarily introduced Government; and so great is this Depravity, that without it, we could scarcely subsist,” wrote Livingston, more strongly influenced than Locke was by Thomas Hobbes’s vision of the state of nature as a brutish war of all against all. Every political theory rests, explicitly or implicitly, on a psychology—on a theory about the raw material of human nature that politics has to work with—and Livingston accepted Hobbes’s emphasis on man’s instinctive predatory aggressiveness. To guard against our inborn tendency to invade each other’s “Person or Fortune,” Livingston wrote, we “have ceded a Part of our original Freedom, to secure to us the rest.”59

  For him, the point of this tale of government’s birth was that it clearly marked the limits of royal power. “Communities were formed not for the Advantage of one Man,” he stressed, “but for the Good of the whole Body.”60 Since subjects gave their king power only to defend them “in the peaceable Possession of their Rights, by punishing the Invader,” only “what is injurious to the Society, or some particular Member of it, can be the proper Object of civil Punishment; because, nothing else falls within the Design of forming the Society.”61

  YET ALL HISTORY shows that rulers thirst to overstep the limits of their legitimate authority because of the same all-too-human depravity that made the social contract necessary. Rulers have abused their power at least since Nero and Caligula, because “men being naturally ambitious, and aspiring after illimitable Dominion, are too apt to measure the Extent of justifiable Authority, by their insatiable Appetite for an unbounded Licentiousness.”62 So “a People should be careful of yielding too much of their original Power, even to the most just Ruler, and [they] always retain the Privilege of degrading him whenever he acts in Contradiction to the Design of his Institution.”63 As Thomas Jefferson later put it with his matchless pithiness, “kings are the servants, not the proprietors of the people,” and they can be fired.64

  Citizens should further hedge the limited power they give their ruler with checks and balances, just as the British constitution so ingeniously pits the lords and the commons against the king, Livingston wrote—though the Framers of the American Constitution later puzzled mightily over how to re-create that equipoise, anxiously searching for a counterpart to the House of Lords in a senate of the wise, good, and rich, until James Madison came up with an alternate mechanism in the Livingstonian balance of interest against interest.65 Yet even “the best devised civil Constitution, is subject to Corruption and Decay, thro’ the Pride, Ambition, and Avarice of those in whose Care it is lodged,” Livingston warned. And when oppression grows too bitter, “Men of true Principles would rather return to a State of primitive Freedom, in which every Man has a Right to be his own Carver, than be the Slaves of the greatest Monarch, or even suffer under the most unlimited Democracy in the Universe.”66

  It was hard enough for Tories to hear that royal authority rests on so flimsy a foundation as the consent of the people rather than on divine right, harder still for them to hear that the people can legitimately depose their king. From such Whig radicalism, they thought, it was one short step to republicanism, and they condemned the Reflector’s authors as “noisy Scribblers” seeking “to mimick Trenchard” and the magazine itself as subversively antimonarchist.67 It wasn’t, but Livingston pulled no punches. A subject’s “Person and Property are guarded by Laws, which the Sovereign himself cannot infringe,” he insisted, and if “the Magistrate exercises Force unauthorized by Law, the Violence he offers must be considered as the Violence of a private Person, which the People have an undoubted Right to repel.”68 And repel it Britons have done, as recently as 1688, when they replaced James II with William and Mary, or when “Charles I paid his Head” in 1649 to show that “a Crown can never rescue its iniquitous Possessor from that Punishment which his Crimes may justly demerit.”69 It is the tyrant—not the rebel—who is the criminal. But his Anglican critics, Livingston lamented, clearly believed “that mankind was born with yokes and fetters; and that the original equality and independence of the species, was a chimera in politics, and blasphemy in religion.”70

  Where are the limits of royal power? Above all, no ruler can invade a citize
n’s property, which men hold by a right bestowed by nature, not by government. “It is a standing Maxim of English Liberty, ‘that no Man shall be taxed, but with his own Consent,’” the Reflector therefore declared. In fact, a “Tax ought to be considered as the voluntary Gift of the People, to be applied to such Uses, as they, by their Representatives shall think expedient.”71 This statement appeared, remember, a dozen years before the Stamp Act turned taxation without representation is tyranny into a revolutionary catchphrase, and it prepared the colonists almost instinctively to recognize and resist that abuse of power when they saw it.

  Second, since it is an “Absurdity to suppose, that Government was ever designed to enslave the Consciences of Men,” the Reflector held, “the civil Power hath no Jurisdiction over the Sentiments or Opinions of the Subject, till such Opinions break out into Actions prejudicial to the Community, and then it is not the Opinion, but the Action that is the Object of the Punishment.”72 So no government can prescribe religious belief, and no monarch may “reduce a Man’s Body to Ashes for the Illumination of his Understanding.”73

  More broadly, because the “Advancement of Learning depends on the free Exercise of Thought; it is . . . absurd to suppose that it should thrive under a Government that makes it Treason even for a Man to think.”74 Everyone is free to dissent, not just in religion but in all else, and Livingston urged everyone to think, question, examine, and criticize as widely and iconoclastically as he could. For him, thinking for yourself was a duty as well as a right. However commonplace that idea may sound today, it was radical in its time; though even in our own age, orthodoxies of received opinion serve as barriers to thought, since we assume we already know the truth about a host of issues that we therefore needn’t analyze for ourselves. Livingston championed a characteristically American intellectual empiricism—“that sort of Knowledge which is built upon the Observation of human Life” and that tests our “most darling Tenets . . . by the Rules of cool deliberate Reason.”75 Such knowledge yields powerful practical results, making a nation “free, enterprizing and dauntless.”76

  Free thought is key to political freedom, because it pierces the mystique of power, swathed in as many layers of superstition and mummery as the ritualistic religion Livingston so despised. Imprisoned in the mental dungeon of such absurd orthodoxies as the divine right of kings or the deference supposedly due to noble birth, men can’t so much as glimpse the freedom and equality of rights that is their birthright. “Almost all the mischiefs which Mankind groan under, arise from their suffering themselves to be led by the Nose, without a proper Freedom of Thought and Examination,” the Independent Reflector warned. “Upon this[,] Priestcraft has erected its stupendous Babel, and Tyranny reared her horrible Domination.”77 If people had the habit of free thought and critical reason, they’d see through the humbug that holds them in thrall, the first step toward liberty. And when citizens elect their own representatives in the Assembly or the city council, Livingston cautioned—unknowingly preparing his readers for the elective republic that lay in the future—they must be even more vigilant independent reflectors, always on guard against candidates’ schemes “to enfeeble or bind them in the Fetters of Credulity,” so that they’ll “abandon their Reason, and . . . follow their Leaders with an implicit Faith,” akin to the religious hysteria Livingston saw sweep over Yale.78

  That’s why a free press is a vital bulwark of liberty, allowing a patriotic editor to “diffuse his salutary Principles thro’ the Breasts of his Countrymen, . . . warn them against approaching Danger, unite them against the Arm of despotic Power, and perhaps . . . save the State from impending Destruction.”79 On the same principle, Livingston’s Reflector triumvirate helped found the New York Society Library in April 1754, modeled on the public-subscription Library Company of Philadelphia that Benjamin Franklin had organized in 1731. Filled with the classics of republican history and political theory, the sixty such libraries established before the Revolution, Franklin remarked, made American tradesmen and farmers as well informed and thoughtful as well-born foreigners, and nurtured the seeds of rebellion.80 Though unable to foresee the ultimate consequences of his midcentury crusading, Livingston was explicitly trying to bring about in his countrymen that change in worldview that John Adams later identified as the real American Revolution.

  As for Livingston’s own freedom of the press: on November 22, 1753, after fifty-two issues, the Reflector’s printer suspended publication, without a word of warning. James De Lancey, now also serving as lieutenant governor while the royal governor was living in London, had told the printer he’d get no more government contracts if he kept putting out the anti–De Lancey, anti-Anglican magazine. To “be barbarously murdered is enough to make a spirit grumble, even in the Elysian fields,” Livingston sighed.81

  BUT IN 1760, Livingston began to lead the colonists in framing the second great justification for rebellion—that Crown officials threatened not only the abstract Lockean social contract but also the concrete safeguards of the British constitution. In New York, De Lancey’s successor as lieutenant governor, Cadwallader Colden, was doing just that. At seventy-three, the learned but brittle and self-important bureaucrat, hidebound from half a century in government, had decided he wanted no more insubordination from New York’s turbulent lawyers and “all the chicanerie of the Law.” To control them, he wanted judges he could dominate—judges who weren’t members of the province’s powerful clans, and judges he could fire, because he planned to give them commissions “during his Majesties pleasure” rather than the commissions for life that they had finally wrested from the government in 1750. De Lancey’s death gave him the chance to name a new chief justice, and the death of George II three months later required all colonial judges to get their commissions renewed, so Colden could change the terms of their tenure—even at the cost of raking up all the bitterness of the Zenger trial of a quarter century earlier, which had begun with a challenge to Chief Justice De Lancey’s commission during pleasure.82

  Of course Colden was taking special aim at lawyers like Livingston, but Livingston, beside his personal irritation, was also touchy about Colden’s affront to the legal fraternity, for he had worked hard to professionalize it, as he ever more profoundly grasped that the law, the courts, and those who man them are the shield of liberty. In 1752, he and William Smith, Jr., had codified the province’s laws for the first time ever. Their volume sold out instantly, as did the supplement they published in 1760. Livingston’s effort would culminate in 1770 with the triumvirate’s founding of the Moot, weekly seminars in which such legendary lawyers as John Jay, Chancellor Robert R. Livingston, and Gouverneur Morris dissected cases, analyzed policy, and upgraded training for clerks.83 So he countered Colden’s attack by persuading the Assembly, which the Livingston clan then controlled, to legislate lifetime judicial tenure, a bill the lieutenant governor vetoed. And when Colden named a Bostonian as New York’s chief justice, Livingston joined the rest of the bar in quickly driving him to resign.84

  In December 1761, London turned the local crisis into a colonies-wide one by decreeing that every colonial judge henceforward would receive his commission at the king’s pleasure. Livingston thundered in the press that this move subverted the colonists’ “undoubted Right, of having the Judges of our Courts on a Constitutional Basis.” For the next fifteen years, colonists loudly objected that the edict ended judicial independence and was “dangerous to the liberty and property of the subject,” as a 1774 South Carolina pamphlet put it.85

  ONCE THE EXECUTIVE had blurred the separation of powers by appointing judges “who depended on the smiles of the crown for their daily bread,” as the South Carolinia pamphlet protested, one last-ditch judicial-branch protection remained—the jury of one’s peers.86 At a frighteningly fast pace, Colden and the London ministry began undermining this bastion of liberty in 1764, and Livingston led the resistance.

  In April, the Sugar Act empowered nonjury vice-admiralty courts to try smugglers and tax eva
ders. In October, the New York Assembly asked Livingston to write its protest to the House of Lords. The “amazing powers” of the vice-admiralty courts, he charged, denied colonists the protection of a jury trial that is “one of the most essential Privileges of Englishmen.”87

  Just then, Colden sharpened the threat. After a jury found a New Yorker named Cunningham guilty of stabbing a fellow townsman named Forsey, Forsey successfully sued his assailant for damages. Cunningham appealed the civil verdict to the lieutenant governor (whose office gave him the power to act as an appellate judge), asking him not just to look for legal errors but also to review the jury’s finding of the facts. In November 1764, Colden agreed and demanded the trial transcript, noting that juries had after all reached “false and iniquitous verdicts” before, perhaps a peevish dig at Zenger’s jury. Chief Justice Daniel Horsmanden’s reply, written with the triumvirate’s help and published at Livingston’s expense to stir up public ire, rejected Colden’s order to produce the transcript as illegal and a threat to liberty. After all, juries decide matters of fact; appellate judges can examine only matters of law. Once appeals judges can reverse jury verdicts about the facts, juries don’t count.88

  COLDEN THEN ASKED the Privy Council in London to hear Cunningham’s appeal. While New Yorkers anxiously awaited the reply, Livingston began explaining the British constitution to them in a newspaper column, the “Sentinel,” that ran for most of 1765 in the New-York Gazette and breathed the spirit of Commonwealth and Whig writers from Algernon Sidney to Trenchard and Gordon.89