While serving in the New York Assembly in 1787, Alexander Hamilton identified a problematic clause in New York's constitution. Remarking on an act for settling intestate estates, Hamilton asked, “The question is what is meant in the constitution, by this phrase ‘the common law’?”Footnote 1 He went on to describe an important distinction in his legal and constitutional thought:
These words have in a legal view two senses, one more extensive, the other more strict. In their most extensive sense, they comprehend the [British] constitution, of all those courts which were established by memorial custom, such as the court of chancery, the ecclesiastical court, &c. though these courts proceed according to a peculiar law. In their more strict sense, they are confined to the course of proceedings in the courts of Westminster in England, or in the supreme court of this state.Footnote 2
After suggesting that the constitution's reference to “common law” encompassed more than just the case reports generated by the central courts in Westminster, Hamilton determined that, “I view it as a delicate and difficult question; yet, I am inclined to think that the more extensive sense may be fairly adopted.” Although Hamilton referred here only to the intestacy bill, the distinction between a “strict” and an “extensive” common law would animate his constitutional and legal thought, many years later, during his famous defense of Federalist publisher Harry Croswell.
In People v. Croswell, a criminal libel prosecution initiated in 1803 and decided the following year, Hamilton argued Croswell's motion for a new trial based on this “extensive” interpretation of “common law” in the New York constitution.Footnote 3 During post-trial arguments, the question at hand was decidedly a constitutional one: what exactly was the common law of criminal libel, as received by New York's 1777 constitution? Despite the lawyers' voluminous arguments directed at constitutional interpretation, with only a few exceptions, the constitutional question at the center of Croswell has been ignored by historians.Footnote 4
Croswell is most often considered in the context of an emerging free press doctrine: that is, historians are usually interested in the case for how it fits within a developing narrative of a free press.Footnote 5 Although Hamilton can seem to be a hero of sorts in these accounts for arguing in favor of truth as a viable defense to libel prosecutions, some legal scholars take the opposite approach. Because Hamilton openly praised the Sedition Act in Croswell, and because he instigated criminal libel suits of his own, Croswell is viewed as a missed opportunity, or a stagnation of free press doctrine. Hamilton even has been cast as a historical villain for his failure to move legal practice farther along from politically motivated sedition prosecutions and the Blackstonian doctrine of “no prior restraint.”Footnote 6
However, the lawyers arguing for and against Harry Croswell's motion for retrial were not asking the court to change the law of criminal libel. Instead, they were concerned with establishing what the law of criminal libel was in the first place. Hamilton and his colleagues asked the court to declare, but not to change, the law of criminal libel as received by the 1777 constitution.Footnote 7
Declaring the law proved to be a tricky endeavor, as seemingly basic questions uncovered uncertain and complicated answers. For example, what authorities provided definitive evidence of the common law? Only the courts at Westminster? What about “ancient” English statutes, or Parliament, or even Congress? At its core, the constitutional issue raised by People v. Croswell corresponded to Hamilton's previous distinction between a strict and an extensive understanding of “common law” in Section 35 of New York's constitution. Hamilton led the defense's argument for an extensive interpretation of common law: the defense argued that the “common law,” as received by the New York constitution, encompassed much more than just the decisions of the justices in Westminster.
Adding complexity to this “reception” problem was a “repugnancy” problem: Section 35 voided any elements of the common law that were repugnant to the constitution. As the prosecution and defense argued that their version of the common law was the true account of the law (and that their opponents' version was incorrect or even repugnant to the constitution), the lawyers fused political concerns with the constitutional question. The counselors brought up a particularly timely topic—the universal desire to mitigate “the spirit of faction” in republican government—in support of their strict or extensive interpretations of the “common law” clause.
Both the prosecution and the defense insisted that the common law, as their side defined it, provided the ultimate bulwark to individual liberty in a republic.Footnote 8 The attorneys enhanced this argument by associating their version of common-law libel doctrine with certain legal rights—for example, a right to protect one's reputation or a right to equal treatment under the law—which in turn, they claimed, helped thwart partisanship. They positioned their opponents' version of common law, on the other hand, as undercutting common-law rights, enabling partisanship, and producing legal outcomes that were repugnant to republican government and to the New York constitution.
This article examines Croswell for its unacknowledged significance: as a moment of constitutional uncertainty and as a debate over the meaning of common law in the early republic. New York's pre-eminent lawyers used arguments about the nature and scope of the “common law” received by New York's 1777 constitution as a way to answer a pressing question facing the state: what was the law of seditious libel in the American Republic? The arguments made by Hamilton, along with his colleagues on both sides of the aisle, indicate that the attorneys strategically adopted a “strict” versus an “extensive” idea of the common law, just as Hamilton had articulated years before. The common law, then, could be considered as merely the legal output from the English “common-law” courts; however, New York lawyers and judges were also willing to consider the broadest possible scope of “common law”—understood as synonymous with the entire English constitution—as pertinent precedent that still informed New York's jurisprudence. The legal strategies used to argue People v. Croswell on both sides demonstrate the ways in which republican jurists conceptualized and instrumentally applied an extraordinarily expansive view of the nature and scope of common law in order to determine the law in force in the American Republic.Footnote 9
The jurisprudential circumstances surrounding People v. Croswell provided the defense with an ideal opportunity to invoke Hamilton's “extensive” common law. First, although the prosecution cited Lord Mansfield as stating what they claimed to be a clear, unassailable statement of the law of seditious libel, in reality, the law in England was muddled, and the defense leveraged this imprecision and confusion by advancing a broad and historical approach to English precedent.Footnote 10 Next, the defense's adoption of the broadest possible conception of common law and their historical methodology—that is, their strategy of sifting through the entire history of English constitutionalism in order to make their argument—had particular resonance under New York law. The state's 1777 constitution had modeled New York's highest court after the House of Lords, one of England's oldest and most distinctive institutions. By creating the Court for the Trial of Impeachments and the Correction of Errors, the state constitution retained a Parliament-like body: a combined upper legislative house and highest judicial court that predisposed its members—which included the justices of the New York Supreme Court who presided over the Croswell case—to be responsive to past and current parliamentary precedent as part of or relevant to the law of seditious libel upheld by New York law.
Finally, as the case involved the meaning of free press in the American Republic, the outcome of the Croswell case impacted certain rights enjoyed by the citizens of New York state.Footnote 11 Throughout his career as a lawyer, statesman, and constitutional theorist, Alexander Hamilton frequently addressed the problem of how to protect customary rights in the American Republic. In order to defend a common-law right that had been infringed upon by an overzealous legislature, an overreaching executive official, or even a partisan court, Hamilton relied on his “extensive” conception of the common law as his strategy to address the violation. People v. Croswell, then, marked the final instance of Hamilton employing his broad understanding of America's inherited, common-law tradition in order to defend a contested or imperiled right. Therefore, for Alexander Hamilton, contested rights claims generated opportunities for him to invoke the “extensive” common law. Calling upon such a broad corpus of law provided Hamilton, along with the other jurists involved with the Croswell case, with strategic flexibility and a vast body of legal precedents from which to draw in order to make arguments about the substance of law in the American Republic.Footnote 12
This article explores the constitutional significance of People v. Croswell at the same time that it seeks to recover the extraordinarily broad scope of the common law adopted into American jurisprudence. Part I highlights the constitutional uncertainty that defined the Croswell case. I examine the prosecution and defense's separate accounts of criminal libel law and how their arguments evidenced two distinct interpretations of what “common law” could mean under Section 35 of the constitution. When referring to these differing interpretations as “strict” versus “extensive,” I borrow Hamilton's 1787 distinction as a helpful analytical label; in their Croswell arguments, neither Hamilton nor his colleagues used the terms “strict” or “extensive” to describe their conceptions of the common law. Also, while discussing the nature of New York's common law of criminal libel, the attorneys raised concerns about political partisanship and the common law's usefulness in the protection of certain rights. By noting these concerns, both the prosecution and defense underscored the strategic link between contested rights claims and the protection of those rights provided by reference to English common law.
I divide my discussion of Hamilton's Croswell arguments between Parts I and II. The first Part considers Hamilton's thoughts on why the Croswell court should look to a multitude of English sources to find evidence of the true common law of criminal libel. He argued that certain American institutions—particularly in New York—took their cues from this “extensive” common law of England. Because the Court for the Trial of Impeachments and the Correction of Errors loomed large in New York's legal culture, Hamilton suggested that the New York Supreme Court could even look to Congress as it would to Parliament to find evidence of the true substance of seditious libel law. Part II traces other instances throughout Hamilton's career in which he employed the “extensive” conception of common law as a legal strategy. Whether he spoke for a persecuted client or as an advocate for the American public, Hamilton asserted a broad, expansive view of the nature and scope of “common law,” and adopted it into republican law, in order to defend customary, common-law rights that were contested or threatened.
Declaring the Common Law
Harry Croswell's defense counsel placed its motion for a new trial on two grounds, both of which disputed the common-law doctrine declared by trial judge Chief Justice Morgan Lewis.Footnote 13 First, the defense attorneys insisted that the jury had been misdirected by Lewis. The chief justice had stated that the common law of criminal libel restricted the jury to consider only the fact of publication and whether the publication's innuendos meant what the prosecution said they meant (that they referred to President Thomas Jefferson). The defense's second ground for retrial was that the common law allowed evidence of truth to be proffered, and, therefore, the original trial should have been put off until the next circuit so that the defense could round up those witnesses who would testify to the truth of the publication. At trial, Lewis had instructed the jury not to consider either the truth or falsity of the publication, or Croswell's intent.Footnote 14
After reassembling their respective legal teams for oral argument, the prosecution and the defense met in the Supreme Court at Albany on February 13–15, 1804.Footnote 15 Chief Justice Lewis presided, along with Justices James Kent, Brockholst Livingston, and Smith Thompson, to resolve the question: what was the law of criminal libel in New York? William W. Van Ness opened for the defense, and he was followed by both of the state's attorneys, George Caines and Attorney General Ambrose Spencer. Arguments concluded with Richard Harison and Alexander Hamilton for Croswell.
Caines and Spencer agreed with Chief Justice's Lewis' understanding of common-law doctrine, which comported with the law declared in Peter Zenger's case (New York, 1735) and most recently with Lord Mansfield in Rex v. Shipley, more commonly known as the Dean of St. Asaph's Case (King's Bench, 1784). In the Dean of St. Asaph's Case, Mansfield made clear that the law of criminal libel differed from other types of criminal prosecutions; that is, the jury did not decide on the general issue—whether the defendant was guilty or innocent of criminal libel—but rather it deliberated only on the narrow factual question of whether or not the accused published the libelous piece. Mansfield cited a string of King's Bench cases—including, among others, Rex v. Tutchin (1704), Rex v. Franklin (1731), Rex v. Owen (1752), and Rex v. Nutt (1755)—to support this position.Footnote 16 According to England's former chief justice, if the jury determined guilt based on the publisher's intent, this would permit the jury to determine law, rather than fact, which would invite a dangerous instability into English law.Footnote 17 The Croswell prosecution echoed this warning against inviting “chaos” into the law, should the defense's version of common-law libel be adopted by the court.Footnote 18 Mansfield's account of criminal libel law conformed to Chief Justice's Lewis' jury instructions at trial.
Lord Mansfield's statement of the law of criminal libel constituted the core of the prosecution's position in Croswell: the common law adopted in New York reflected only what the judges in Westminster said it was. And with few exceptions—notably the Seven Bishop's Case (1688)—the King's Bench had ruled that juries did not decide on both law and fact in criminal libel actions. Also, for actions of criminal libel, truth was never a viable defense.Footnote 19
However, the English law of seditious libel had been changing over the course of the late eighteenth century, a development obscured by Mansfield's declaration of the law of seditious libel in the Dean of St. Asaph's Case. Beginning after 1770, prosecutions for politically motivated, criminal libels emphasized the seditious effects of the publication in question (that is, the potentially deleterious effect of the words on society) rather than the text's unlawful nature. The lawyers involved in late eighteenth-century English libel trials began to frame their arguments around the question of whether the effect of the publication was seditious (an increasingly contextual, and, therefore, factual, matter for the jury to decide) rather than the question of whether the words were libelous (a point of law for the judge to determine).Footnote 20 Consequently, Mansfield's assertion that the jury could decide only the narrow question of publication proved unworkable, and, therefore, before Parliament passed Fox's Libel Act to allow the jury to decide on the general issue, the English law of seditious libel had already begun blurring together the questions of libel and sedition (law and fact) such that both matters had to be left to the jury.Footnote 21 This muddled, transitory state of English criminal libel law could work to Croswell's advantage, however. If Mansfield's pronouncement of criminal libel law did not even match the true state of the law in England, how could it be an authority for the law in New York? The defense's “extensive” conception of the common law allowed them to mine other sources of English law in order to present a more advantageous (and more accurate) description of the English law of seditious libel to the New York Supreme Court.
Because the Croswell court was familiar with Mansfield's ruling on criminal libel law, the prosecution moved on to deflecting critiques of its “strict” version of common law and to elaborating the benefits of King's Bench doctrine. For example, both sides suggested that the infamous Star Chamber Court, a prerogative court abolished in 1641, originated the doctrine of libel law embraced by eighteenth-century King's Bench justices, but to the defense, libel law coming from the Star Chamber was tainted. Van Ness called the Star Chamber “despotic,” and Hamilton described it as “one of the most oppressive institutions that ever existed,” whose “horrid judgments cannot be read without freezing the blood in one's veins.”Footnote 22 In response to and in anticipation of these sentiments, Caines reassured the Croswell court that the Star Chamber's reputation was tarnished only by the fact that it did not use juries in its oftentimes “ex parte” operations. Those legal principles handed down from the Star Chamber court were not only good law, but represented law that was in accordance with the true common law of criminal libel.Footnote 23 Furthermore, the prosecution added, the ancient statutes, and supposedly “common-law” proceedings presented by the defense, did not even hint at true common-law doctrine.Footnote 24
The prosecution attempted to demonstrate to the court how their strict conception of common law comported with (and, therefore, was not repugnant to) New York's constitution. To meet this end, the prosecution connected the particularities of the “course of settled law” to republican purposes.Footnote 25
Caines anticipated possible criticism of the “strict” approach by pointing out that King's Bench doctrine was not just a set of rules. Behind those formalistic rules rested an important substantive concern: criminal libel law had developed to protect the public against breaches of the peace.Footnote 26 Moreover, if incendiary speech went unpunished, this would facilitate not only breaches of the peace, but political partisanship. With this in mind, Caines refuted the defense's contention that true, but libelous, publications were necessary for republican elections:
In a republic, it is not a spirit of liberty which we have to keep alive,—it is a spirit of faction that we have to repress: and this right [the purported “power of libeling” for a better informed electorate], thus contended for, without benefiting the first, begets the second; the only enemy of our real liberty. It creates the calumniator; that civil incendiary, who uses as firebrands, scandal, slander, and invective...with these he kindles the flame of party spirit.Footnote 27
In seeking to avoid the “inevitable consequences of a factious spirit,” Caines reminded the court that Lord Mansfield had already provided New Yorkers with the appropriate solution. And, therefore, “to prevent these deleterious results,” Caines proclaimed, “the strong corrective of common law principles...is the only remedy.”Footnote 28 By this he meant King's Bench principles of common law.Footnote 29
By introducing political partisanship as a substantive concern of criminal libel law, Caines opened up an opportunity to discuss certain rights protected by their “strict” version of common law in connection with the evils of political faction. He first suggested that criminal libel law provided for the legal protection of a person's reputation, and later in his speech, he openly declared that the common law protected the “rights of reputation,” which were “as sacred as those of property.”Footnote 30 As a corollary to this point, Caines skeptically questioned whether a right to vote in republican elections also conferred the right to abuse other Americans, be they magistrates or private citizens seeking elected office.Footnote 31 Through this comment, Caines attacked the defense's contention that true, but libelous, information about a candidate or public officer was crucial and relevant to preserving republican elections.Footnote 32
Finally, Caines asserted that to allow truthful libels to be protected under New York law was to invite a double standard into the law, which would be repugnant to the constitution. To this end, Caines presumed a right to equal treatment under the law: if the court declared that truth was a viable defense in criminal libel law, then a double standard would be set for magistrates and private citizens. The law would protect the private citizen from any sort of published libels (under an action of private libel), but the magistrate would not receive the same treatment under the law, for true libels aimed at him would be afforded no legal protection.Footnote 33 Moreover, the damage wrought by unpunished libels of a public official's reputation would affect not only his peace of mind and his character, but also his property and the peace of mind of his family.Footnote 34
Attorney General Spencer reinforced Caines' arguments about these rights protected by the King's Bench account of criminal libel law. Spencer reminded the court that because the law of New York state was concerned with the protection of an individual's rights and liberties, it followed that no judge could allow one person to infringe on the rights, property, and happiness of another, when acting in accordance with his prescribed judicial duty.Footnote 35 But for the most part, Spencer left all talk of rights protected at law to Caines, and focused instead on chipping away at the defense's interpretation of a broadly-conceived common law.
When Van Ness, Harison, and Hamilton outlined the defense's arguments in favor of a new trial, they built their case on a conception of the common law as being more than just the judicial output of the central courts at Westminster. The common law, as received by the New York constitution, included King's Bench and Common Pleas' judgments and their rules of procedure and substance, but the reception went much further than that. As Hamilton noted in 1787, the common law was the sum total of all the courts in the English realm, and in Croswell, Harison looked to “the whole of English law” for guidance on question of criminal libel.Footnote 36 This “extensive” notion of common law encompassed the entire English constitution, and meant that the substantive law, rules, and processes of equity, ecclesiastical, and admiralty courts—to name only a few of many English jurisdictions—combined with those narrowly defined, and more commonly known “common-law” courts (held at Westminster, in county quarter sessions, and on assize) to form a broadly conceived common law shared by Englishmen. Sometimes process and doctrine from these other types of courts conflicted with the output of the King's Bench or Common Pleas, but this circumstance only made it necessary for the New York bench to sift through the sources of common law to declare the particular law in force under New York's constitution.
Parliament, the highest court of the realm, figured prominently in the defense's “extensive” conception of the common law, because its output regularly constituted the truly common, shared law of England.Footnote 37 Parliamentary output blurred any formal distinction between legislation and judicial determinations. Historically and theoretically, its statutes were decisions of a court, either decreed retrospectively for particular petitioners, or aimed prospectively for all subjects of the realm. In their broad conception of common law, the defense considered Parliament's statutes to be authoritative, declaratory evidence of the common law and relevant for New York's bench to consider.Footnote 38
Particularly relevant was Fox's Libel Act of 1792, the Parliamentary statute declaring that in cases of criminal libel, the jury could decide on the general issue, and it should not be confined only to determining the fact of publication.Footnote 39 The defense championed Fox's Act as a judicial determination handed down by the highest court of the realm to declare and clarify the actual substance of common law. Hamilton argued that the Act did not alter the existing law espoused by Lord Mansfield, but it instead restored the true, time-out-of-mind law of criminal libel. Late seventeenth- and eighteenth-century King's Bench doctrine had muddied the law, and with Fox's Act, Parliament declared that the common law as embodied in ancient statutes—and in line with the legal spirit of Scandalum Magnatum, which allowed truth as a defense—reflected the real substance of criminal libel law. The Act was not a modification to the law, but a declaration of the law—the true legal doctrine of criminal libel—as it had always been. (And, as discussed, Fox's Act formally pronounced the already-occurring transition in late eighteenth-century English libel law as well). Crucially, given that the New York constitution only adopted common law dating from before April 19, 1775, the defense argued that Fox's Libel Act simply provided evidence of the true criminal libel doctrine already in place in 1775, but had been confused by the King's Bench version of the law.Footnote 40
During this portion of his arguments, Hamilton also raised a technical question of law for the court to consider: what constituted a valid precedent? He suggested a rubric for determining a true legal precedent: first, nothing but a uniform course of judicial conduct on a legal matter formed a precedent, and if this uniform course was not in place, then the substance of the now- questionable precedent must be considered in relation to “principles of general law.” If the questionable precedent did not conform to these principles, then the court was free to disregard the judicial conduct that had been heretofore erroneously considered to be binding precedent, and to assume instead that the law had never been settled.Footnote 41
According to Hamilton, this was the exact circumstance of Harry Croswell's case: ancient statutes pointed to truth as a defense, and the general principles of criminal common law allowed juries to determine not only the general issue, but intent as well.Footnote 42 Criminal intent, as Hamilton elaborated earlier in his speech, was an inseparable mixture of law and fact: the one legitimate and indisputable exception to the English judge's duty to decide only on law, and the jury's duty to decide only on fact.Footnote 43 The King's Bench judges had developed a criminal libel doctrine that denied truth as a defense and limited the law to a narrow question of the fact of publication, thus denying the jury its power to determine the general issue and the publisher's intent. This meant that the law of England and the law of New York consisted of only “a mere floating of litigated questions” on criminal libel.Footnote 44
England, however, had already taken care of this problem. With Fox's Libel Act, the “highest branch of the judicature of that country” confirmed and—for Hamilton's argument—settled the common law of criminal libel in England. Hamilton continued, “It is in evidence that what we [the defense] contend for was and had been the law, and never was otherwise settled”—until Fox's Act.Footnote 45 Now, Hamilton and his colleagues looked to the Supreme Court sitting at Albany to resolve New York's problem of unsettled law.
Hamilton argued last, but Attorney General Spencer anticipated these claims and pre-emptively attempted to mitigate their effects on the prosecution's case. Spencer underscored that English judges and their American counterparts shared a solemn judicial duty to separate the question of law from fact, because under the English constitution, the jury “ought not to decide the question of law.”Footnote 46 The defense's motions for retrial, therefore, stood in contrast to both English and American judges' judicial duty. Furthermore, Spencer resisted the defense's claims that any law originating outside of the courts at Westminster—and especially not the ancient laws cited by Van Ness—constituted the common law of England.Footnote 47 He also warned the Croswell court that it should deny what amounted to the defense's prodding to change the prosecution's version of the existing law of England—that of Zenger's case and Mansfield's ruling in the Dean of St. Asaph's Case—because it fell only to the New York legislature, and not to the courts, to make new law or to modify this existing law. Spencer lectured the court, “let us not, in a Court of Justice, attempt, by altering the law, to usurp the power of the legislature.”Footnote 48 Again, he argued that the English judge served as an example for the American judge. American courts inherited the maxim jus dicere non jus dare which, when further bound by uniquely American notions of separated departmental powers, did not give the court any authority to “usurp” legislative power and change the law of libel. The legislature altered the law, but it did not declare the law; only the courts did.
In addition, the attorney general denied the defense's contention that Parliament provided contrary evidence to the King's Bench version of criminal libel law. He argued that Parliament's libel act was not evidence of New York's common law, because Fox's Act innovated on Mansfield's version of criminal libel law, rather than declaring the law as it existed in 1775.Footnote 49
The defense's argument ultimately revolved around the idea that because various elements of the English constitution, including centuries-old statutes, “principles of general law,” Parliament, and King's Bench determinations together formed the broadly defined, common law of England, all of it gave evidence as to the common law adopted under New York's constitution. However, the defense did not stop there in its application of an extensive notion of common law to New York State. The defense also suggested that American institutions—namely, Congress and the New York legislature—operated similarly to Parliament and shared a Parliament-like authority to give evidence as to what constituted common law. In republican legislatures, as in Parliament, a fine line separated the power to make the law and the capacity to declare the law.Footnote 50
The defense never argued that American judges could make law, and in this way, the defense and prosecution agreed that the English conception of judicial duty applied to American judges. But the defense looked to Congress to give evidence of the law (the New York legislature had not yet “declared” the law on criminal libel, but they would do so after the Croswell court divided and failed to grant the new trial). Referring to Congress's Sedition Act of 1798—which declared truth to be a valid defense against federal sedition (criminal libel) prosecutions—William Van Ness declared:
The supreme legislature of the union has declared, that by law, truth is a justification...by a recurrence to the statute [the Sedition Act], it will be found, that that part of it which permits the truth to be given in evidence is declaratory, and the other parts remedial. Ought this Court to doubt after this solemn declaration of the nation on this point? And is it not bound to regard it as conclusive on this subject?...This is an authority pure and unadulterated; above all, it is American.Footnote 51
Hamilton agreed. He affirmed, “I say, the highest legislative body in this country, ha[s] declared that the common law is, that the truth shall be given in evidence, and this I urge as a proof of what that common law is.”Footnote 52 Congress, they implied, imitated Parliament's capacity to declare the common law.
Through these arguments, the defense advanced an important claim about the nature of governmental power in the early republic. By implicitly analogizing a Congressional power to declare the law to that of Parliament, the defense suggested that whereas state legislatures were generally fashioned as separate and independent departments from the courts of law, the legislatures' powers oftentimes included the capacity to make certain quasijudicial determinations, such as confirming what exactly comprised the law of the land. It is important to remember, however, that Hamilton and Van Ness intended these remarks to persuade judges who also sat on the highest court in New York State, the Court for the Trial of Impeachments and the Correction of Errors. Analogies between Congress and Parliament would have resonated particularly well with judges who were accustomed to participating in and being overseen by New York's version of the House of Lords.Footnote 53 Hamilton was not, therefore, revising his views on the separation of legislative and judicial power, which he articulated most clearly in his Federalist essays; instead, he merely tailored his legal arguments to influence his audience. In 1804, just as in 1788, Hamilton remained a staunch advocate for an independent federal judiciary, and would not (and did not) make arguments analogizing Congress to Parliament in order to describe the nature of legislative and judicial power at the federal level. But in the context of New York, where the Court for Trial of Impeachments and the Correction of Errors held a primary place in the state's legal and constitutional apparatus, Hamilton thought that New York's bench would be willing to accept Congressional law as “proof” of the common law, and to adopt his broad conception of the British common-law tradition as part of New York's jurisprudence.
The defense did not imply that either Congress or the New York assembly (the lower house) was actually a high judicial court of their respective federal and state realms; however, their “extensive” common-law argument does suggest how American institutions and constitutional law continued to be intimately tied to English constitutionalism. State and federal institutions imitated and relied on British institutions as models, and American jurists and statesmen looked to English law for guidance and precedent.Footnote 54 The defense's “extensive” conception of the common law was premised on the notion that American courts could answer novel questions about republican law by scouring the corpus of English law. The arguments made in People v. Croswell, and especially those devised by Alexander Hamilton, demonstrate how the influence of the English constitution and its broadly conceived, truly common law was alive and well, and in operation in America's republican jurisprudence.Footnote 55
Defending Rights with the “Extensive” Common Law
Although William Van Ness and Richard Harison occasionally voiced concern over the “spirit of faction,” Alexander Hamilton devoted considerably more time to the relationship between criminal libel law and political partisanship.Footnote 56 Like the prosecution, Hamilton tied political matters to valid legal concerns. He argued that the defense's version of criminal libel protected certain legal rights that, in turn, worked to counter the evils of faction and rendered the defense's version of common law in accordance with the New York constitution.
However, Hamilton's arguments about common-law rights were more sweeping than those of his colleagues. To Hamilton, the whole of the common law of England provided substantive and procedural safeguards for an individual's rights and liberties, and in the midst of the fierce partisanship that developed on both the national and the New York political scenes, these common-law protections were needed, more than ever, to counter party spirit. Hamilton read the substance of English common law into the federal Constitution, and he believed that maintaining both the rigors of the English legal process and the proper roles of judge and jury provided the best protection for individual rights.
To Alexander Hamilton, then, English common law was the best solution to the problem of republican governance: common-law substantive principles, legal process, and juries formed the crucial barrier between a citizen and their government. The common law safeguarded an individual's rights and liberties from the executive, the legislature, and even the judiciary, although Hamilton oftentimes credited truly independent judges with protecting individual rights from the other two departments.Footnote 57 Ultimately, if the judiciary was not fully independent of the legislature or the executive, or if partisanship corrupted the judges, common-law juries, principles, and process would be the last line of defense to protect the individual.
Although Hamilton eloquently described these ideas in his Croswell arguments, he had been relying on his “extensive” conception of the common law as the primary strategy used to defend his clients' rights claims since he began practicing law. As evidenced in the Croswell case, the “extensive” common law strategy worked well to safeguard contested or imperiled rights because it opened up the vast past and present history of English constitutionalism as a source for crafting persuasive legal arguments. Invoking the entirety of English law gave Hamilton flexibility to look past the law reports generated in Westminster, to interrogate pronouncements of the law made by individual justices, and to find novel, yet persuasive, arguments in favor of his client. The “extensive” common-law strategy also encouraged Hamilton to rely on common-law process, in addition to citing the history of English constitutionalism, in order to influence the substance of American law. For Hamilton, who throughout his career demonstrated a sincere concern for the vulnerability of individuals' rights, the common-law tradition afforded the best method of protecting rights under a republican government.
Contested rights claims, such as those of the embattled New York Loyalists, generated opportunities for Hamilton to scour the English common-law tradition, and to invoke a broad conception of common-law rights received under the New York State Constitution. When Hamilton entered New York City's legal scene in 1782, victorious Patriots were eagerly punishing Loyalist Americans and any remaining British subjects for their failure to support the revolutionary cause. Much to Hamilton's dismay, Loyalists' postwar mistreatment oftentimes occurred in court, facilitated by the Trespass Act.Footnote 58
New York's legislature passed the Trespass Act to ensure that Loyalists could not claim military permission for their wartime use of Patriots' property. The British occupied New York City for much of the war, and as a result, they granted certain Loyalists who remained within the city the use of abandoned property. Under the law of nations, this wartime circumstance could be successfully defended against postbellum suits alleging trespass, because the Law of Nations recognized military permission as a valid defense. New York's Trespass Act, however, legislated away this plea of military justification, and exposed Loyalists to litigation while simultaneously denying them a valid legal defense.Footnote 59
Alexander Hamilton represented dozens of Loyalist clients during the postwar 1780s, and although he did not always defeat the trespass actions initiated against his clients, he was oftentimes successful in mitigating the effects of Trespass Act litigation. His courtroom strategy, as evidenced in his defense of Joshua Waddington in Rutgers v. Waddington (New York Mayor's Court, 1784), was to cast doubt on the successfulness of a Trespass Act prosecution. Hamilton did this by arguing that the Law of Nations, and, therefore, the plea of military permission, was received into New York state law by Section 35's common-law reception clause, and as such, courts could apply constitutional law over statutory law if a conflict arose. Although Justice James Duane did not adopt all of Hamilton's reasoning, the court in Rutgers equitably interpreted the Trespass Act to reach Hamilton's desired result. Because the court ruled that Waddington had military permission for the use of some of Elizabeth Rutgers' property, the decision's effect was to cast doubt on the successfulness of a Trespass Act prosecution.
Hamilton also pursued settlement strategies—such as removing litigation to higher courts for common-law (and eventually statutory) trespass actions—in order to leverage his success in Rutgers against potential plaintiffs' zeal for prosecution. Plaintiffs opted to settle their suits for much smaller amounts, rather than take the chance that a higher court would rule, as New York's Mayor's Court did, that under an equitable interpretation of the law, the Trespass Act allowed the plea of military permission.
These legal strategies demonstrate that even in the 1780s, Hamilton relied on a broad conception of common law (as encompassing the Law of Nations, as relying on mitigating principles of equity) and the availability of common-law process (writs of certiorari, for example) to protect his unpopular Tory clients. Hamilton's reliance on common-law principles and process to defend Loyalists even extended outside the courtroom. In two polemical essays, addressed to the citizens of New York, Hamilton argued that if New York's legislature could pass laws that denied common-law due process to some, then everyone—Patriot and Loyalist citizens alike—would find their rights and liberties compromised. Writing as “Phocion,” Hamilton made the case that it was neither the legislature nor court magistrates who safeguarded rights and liberties, but instead, it was the due process afforded by common-law procedure that allowed liberty to remain intact.Footnote 60
Phocion cited familiar common-law processes to make his point. “Due process of law” meant presentment, indictment, trial by the accused's peers, and conviction in consequence. And not only did New York's borrowed common-law writ system provide this due process of law, but the thirteenth article of New York's constitution guaranteed it as well.Footnote 61 Furthermore, Phocion made clear the fundamental assumptions of due process: “that no man can forfeit or be justly deprived, without his consent, of any right, to which as a member of the community he is entitled, but for some crime incurring the forfeiture.”Footnote 62 Also, no forfeiture of rights could occur without allowing the accused to offer a defense, made through the typical course of prosecution, and that unless convicted of a crime, his rights could not be denied.Footnote 63
Loyalists, Hamilton contended, were citizens too, and if the legislature could pass discriminatory laws against them for no justiciable offense committed, then all that could protect these former Tories was the promise of common-law due process.Footnote 64 The Trespass Act, however, tampered with the routine course of process, and if the people of New York tolerated this infringement of justice when it applied to Loyalist citizens, then even Patriot citizens would one day have their rights and liberties abridged as well.Footnote 65 Phocion's immediate goal was to convince the people of New York to demand a change to or the rescission of the Trespass Act, but his larger point reminded New Yorkers that they all benefitted from those necessary, common-law safeguards that protected them from any injustice perpetrated by the institutions of republican government.Footnote 66
During the 1780s, Hamilton was not only concerned with protecting Loyalists' rights. He also argued against the New York Assembly's proposed requirement that naturally born Roman Catholics take an oath of abjuration that effectively would have barred them from holding office.Footnote 67 And when Hamilton considered the place of the federal judiciary under the United States Constitution, he showed concern for the rights and liberties of the American people as a whole. He emphasized, “It equally proves that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the executive.”Footnote 68 Hamilton had high hopes for the federal judiciary's ability to safeguard individual liberty because, more so than many of the state governments, including New York, the Framers designed the institutions of the federal government to be distinct and separate entities. Hamilton's Federalist essays on the judiciary are, therefore, peppered with references to the security of individual rights and liberty.
To Hamilton, then, the combined principles and process of common law, as provided and adhered to by the courts of justice, provided the ultimate security to individual rights. When the American people brought a truly independent federal judiciary into existence, Hamilton felt comfortable emphasizing that the federal courts could provide the necessary security for individuals. But even if the independent judiciary provided a barrier to rights infringement, the common law practiced inside the courtroom afforded the critical safeguards.
In this way, Hamilton conceived of the judiciary and the common law as a two-pronged defense to prevent rights infringement. This view again appeared, years later, in his “Examination” essays and in his Croswell arguments. During the winter of 1802, Hamilton published eighteen essays, titled “The Examination” in the New York Evening Post, under the pseudonym “Lucius Crassus.”Footnote 69 Hamilton intended these articles to be his public response to President Jefferson's First Annual Message to Congress (December 8, 1801), as well as an opportunity for Hamilton to address his larger concerns about the state of the nation.
The most pressing of these concerns involved the state of the federal judiciary, which, according to Hamilton, had been compromised and rendered dependent by the repeal of the 1801 Judiciary Act.Footnote 70 With the successful repeal of the Act, Congress abolished sixteen federal circuit court judgeships, even though judges had already been selected to fill those positions. Hamilton found this to be an unconstitutional violation of Article III, which guaranteed federal judges their offices as long as they maintained “good behavior.” He argued that to divest the judges of these offices, once created, was to violate the judge's vested right in the office, in addition to violating Article III's good behavior clause.Footnote 71 Furthermore, the repeal of the circuit court judgeships meant that the independence of the federal judiciary had been successfully nullified by the national legislature, and that the wisdom and benefits of separating governmental institutions had been abrogated.Footnote 72
In particular, Lucius Crassus lamented that a properly stable and independent judiciary was “the surest guardian of person and property” because “as it regards the security and preservation of civil liberty, it is by far the safest [department].”Footnote 73 Judicial independence erected “a precious shield to the rights of persons and property. Safety and liberty are therefore inseparably connected with the real and substantial independence of the courts and judges.”Footnote 74 As he had in his Federalist essays, Hamilton equated an independent judiciary with the security of individual rights.
Moreover, misguided legislation was not the only problem. The repealing act was no good, but it represented more than just a foolish Congress; the repeal reflected a truly worrisome “tide of faction” and “turbulent humors of party spirit” that had recently plagued the young republic.Footnote 75 Judges needed to be protected from partisanship, Lucius Crassus warned, and, judging by the tenor of the current political scene, it seemed that even monarchical Great Britain provided better protection for its judges than the United States did, especially if Congress could unconstitutionally remove judges from their offices.Footnote 76
In his turn as Lucius Crassus, Hamilton candidly displayed his anxiety that political partisanship had effectively undermined the constitutionally constructed, institutional relationship between Congress and the federal judiciary. Factionalism was spreading like a poison, and it not only destroyed the judiciary's independence but, by implication, could threaten the rights and property of Americans. Through his “Examination” essays, Hamilton began to describe the detrimental relationship between “the spirit of faction” and individual rights, a theme that he would address soon after in People v. Croswell.
Croswell required Hamilton to refocus his apprehensions on New York's political scene, where the New York constitution did not attempt to create a wholly independent judiciary. But with this return to New York politics, Hamilton revisited the spirit of his Phocion essays. A truly independent judiciary was not an option in New York, and therefore, more explicitly than before, Hamilton advocated for common-law principles and process as the ultimate safeguards to individual rights.
Political partisanship had infected New York, just as it had the national political arena, as each of the Croswell counselors noted in their speeches. To Hamilton, this concern was particularly relevant because the motion for a new trial required the court to consider institutional questions regarding the respective roles of judge and jury. As Hamilton argued in relation to the federal judiciary, judges were important to the protection of rights. But in New York—and in light of recent events, even at the federal level—complete independence from the legislature could not be assured. Under these circumstances, then, Hamilton argued that it was safer to allow juries, as opposed to judges, more discretion to determine the publisher's intent or the truth of a publication involved in a criminal libel action.Footnote 77 In giving his reasons for this conclusion, he echoed Lucius Crassus: “the independence of our judges is not so well secured as in England.”Footnote 78
Hamilton reasoned that, as civil officers inevitably touched by state politics, the court would be more susceptible to “the View & Spirit of Government”—the prevailing winds of partisanship—than a jury, that “occasional & fluctuating body” to be chosen by lot.Footnote 79 In this era of factional paranoia, Hamilton trusted the jury more than he trusted the state judges to ensure the liberty of the press. The New York bench could not be fully independent of the legislature, and, therefore, they might be susceptible to the influence of partisan politics.Footnote 80 And although juries could also bring their politics to the jury box, their impermanence provided a surer safeguard. Injustice might be perpetrated once by a politically charged jury, but it would be propagated again and again by permanent, partisan magistrates. Because of this, Hamilton affirmed, “we have more Necessity to cling to the right & Trial by Jury, as our greatest Safety.”Footnote 81
Regarding the particular points of law—whether the jury should be able to determine the publisher's intent in a criminal libel action—Hamilton referred to the general principles of the New York constitution, rather than King's Bench doctrine. He declared, “What then do I conceive to be true doctrine. That in the general distribution of power in our Constitution it is the province of the Jury to speak to fact, yet in criminal cases the consequences and tendency of acts, the law and the fact are always blended. As far as the safety of the citizen is concerned, it is necessary that the Jury shall be permitted to speak to both.”Footnote 82 This concern for citizen security was also what made Congress' Sedition Act such a “valuable” statute, as the sedition law allowed the jury to consider the truth of the publication as a defense.Footnote 83 According to Hamilton, Congress premised the 1798 Sedition Act on “common law principles,” and in doing so, it followed the wise example set by the Framers of the United States Constitution.Footnote 84 Because the United States Constitution relied on the substantive and procedural common law, it created a strong, but limited, government that could not infringe on individuals' rights. “The Constitution of the U.S.,” Hamilton warned, “would have been melted away or borne down by Faction, if the Com[mo]n law was not applicable.”Footnote 85
Finally, Hamilton attempted to appeal directly to his audience by emphasizing that common-law principles even protected impartial judicial magistrates suffering because of the prevailing political rancor. After noting the “Impeachments of an extraordinary nature [that] have echoed thro' the land,”Footnote 86 Hamilton extolled substantive common-law principles as the protective standard by which even magistrates could benefit: “If then we discharge all evidence of the common law [referring to “treasons, crimes, and misdemeanours”], [judges] may be pronounced guilty ad libitum; and the crime and offence being at once at [Congress'] will, there would be an end of that [U.S.] Constitution.” And so, “[b]y analogy a similar construction may be made of our own [New York] Constitution, and our Judges thus got rid of. This may be the most dangerous consequences.” Hamilton implored the court to use any arguments against substantive and procedural common-law principles with caution, and “To take care how we throw down this barrier”—the common law—“which may secure the men we have placed in power; to guard against a spirit of faction, that great bane to community, that mortal poison to our land.”Footnote 87
With these remarks, Hamilton soon brought his arguments to a close. Over the course of two days of oral argument, Hamilton suggested that common-law jury process afforded a necessary safeguard to individual rights in New York's fiercely politicized government. He also emphasized that Congress had borrowed from Parliament's example to declare and endorse the true common-law principles of criminal libel, which included a jury determination of intent and truth as a defense.
Hamilton considered substantive common-law rights too. Common-law writs (habeas corpus), crimes (treason), and processes (impeachment) informed the federal constitution, and provided explicit protection to federal judges against the whims of party politics. Justices of New York State also benefitted from these common-law concepts as adopted by New York's constitution.
By looking to not one, but to all of these sources—to the courts at Westminster, to the “general principles” of English law, to Parliament, to Congress, to the United States Constitution, and to the everyday due process already adopted and ensured by New York's constitution—Alexander Hamilton connected his concern for the protection of individual rights to the common law, broadly conceived. Under his “extensive” conception of the common law, Hamilton argued not only for Harry Croswell's particular rights, but with the rights of all American citizens in mind. In his Croswell speech, as in his Phocion, Federalist, and Lucius Crassus essays, Hamilton consistently underscored the importance of substantive and procedural common-law principles to securing an individual's rights, liberty, and property.
Conclusion: Rethinking the Nature of Common Law in the Early Republic
James Willard Hurst singled out Alexander Hamilton as a “prime mover in making law” in America.Footnote 88 Although Hurst had Hamilton's treasury tenure primarily in mind, People v. Croswell demonstrates that Hurst's analysis applied to Hamilton's courtroom impact as well, and Justice James Kent would have agreed. In 1832, Kent recounted Hamilton's finest performance before the New York bench: “I have always considered General Hamilton's argument in [People v. Croswell] the greatest forensic effort that he ever made. He had bestowed unusual attention to the case, and he came prepared to discuss the points of law with a perfect mastery of the subject.” Kent continued, “[Hamilton] believed that the rights and liberties of the people were essentially concerned in the vindication and establishment of those rights of the jury and of the press for which he contended. His whole soul was enlisted in the cause, and in contending for the rights of the jury and a free press he considered that he was establishing the finest refuge against oppression...”Footnote 89 Kent, like Hurst, thought that Hamilton had made a profound impact on the law. By examining People v. Croswell, we see how Alexander Hamilton shaped the development of American law by strategically deploying the tools of English common law.
I have offered a new perspective on Hamilton as a legal thinker and strategist who considered the entire English common-law tradition to be intimately and integrally tied to American jurisprudence as a source of precedent, process, and substance for republican law. Hamilton's career, which culminated only a few months after his arguments in Croswell, demonstrates that defending a client's rights claim offered the best opportunity for him to invoke the “extensive” common law, and thus to mine English constitutional history for precedent relevant to American legal questions. Hamilton was openly and consistently concerned with the problem of securing individuals' rights under republican government, and to him, common law, in its most expansive sense, provided the last line of defense between an individual and his government. When Hamilton referenced the security of common-law principles, he did not rely exclusively on the process and substantive law coming out of the central courts at Westminster. He looked instead to varied English and American sources to find evidence of the common law. It then fell to the courts to determine which of the oftentimes overlapping, sometimes contradictory, English and American jurisdictions provided the best account of common law to be received under New York's constitution.
Hamilton's legal maneuvers in People v. Croswell present new insights into the nature and meaning of common law in the early republic. First, Hamilton and his colleagues transformed the prosecution's narrow meaning of “common law” into a vast synonym for the entire English legal tradition. This “extensive” interpretation treated common law as nothing less than the entire legal framework that constituted the realm—the English constitution itself—and fit England's various jurisdictions, substantive law, procedures, and institutions into this common-law framework.Footnote 90 By treating the common law as the expansive, constitutive law of the land, the defense turned English law into a grab bag of potential arguments and examples to use to define relevant, legally valid common-law principles to apply in American courts. As such, Hamilton's conception of common law directly contradicts the notion that the common law was no more than a set of stifling, strict rules from which nineteenth-century American lawyers and judges sought to break free.Footnote 91
In addition, Croswell's lawyers viewed English common law as a methodological opportunity to recombine familiar legal materials to fit new, distinctly American conclusions. The lawyers' historiographical approach allowed them to offer competing arguments about what constituted the true English law received in America, thus allowing the judge to determine what legal precedent would be most appropriate for republican law. Paradoxically, by accepting the broadest conception of the nature and scope of English common law as the basis of New York law, and by closely studying English legal history, American jurists were able to determine the precise law that best conformed to their state's republican constitution. Even two decades after the end of the American Revolution, English constitutionalism remained intimately related to American constitutionalism.
With this expansive interpretation of common law, the defense also managed an important legal sleight-of-hand: their arguments allowed the court to declare new legal outcomes while denying that the judges were actually innovating on existing law or improperly legislating. Because the Hamiltonian strategy treated common-law doctrine as part of an expansive legal tradition rather than as only those rules handed down from the Westminster courts, the defense's arguments suggested that American judges had a substantial array of valid jurisprudential options available to them to determine the law of the land. The judge remained squarely within his proper judicial duty to “find” the law through other sources—like ancient or declaratory statutes—even if he declared that the law in force differed from Westminster precedent.Footnote 92
To accomplish these legal feats, Hamilton and his colleagues assumed that the nature and practical meaning of “common law” encompassed many more jurisdictions and institutional actors than historians tend to acknowledge today. This expansive conception of common law was not, however, novel to jurists in the early republic.Footnote 93 Also, the defense's historical approach to legal argument allowed them to uncover alternative sources of common-law doctrine to present to the court. American jurists would not have found this methodology new or exceptional either, as the revolutionary generation was steeped in seventeenth-century English legal traditions that derived the common law's authority from both its rationality and its assumed existence from time immemorial.Footnote 94 American lawyers therefore inherited, and Croswell's defense expertly put to use, a historiographical methodology that sought to trace common-law doctrine back to an immemorial, “time out of mind.”Footnote 95
Alexander Hamilton thus mapped an alternate route to instrumentality in American law where the common law supplied a corpus of legal arguments, rather than rigid rules. At the same time that Hamilton deeply respected common-law legal traditions—particularly those concerning common-law rights—he simultaneously demonstrated how the common law could be flexible, vast, and capable of adapting to American policy ends when used strategically in court.Footnote 96 His strategy allowed for judges to adjudicate new legal doctrines within their traditional authority; it offered a way for the court to resist sudden departures from established legal doctrine, and to enable lawyers and judges to excavate the past in order to meet the legal needs of the present. By rethinking People v. Croswell, we can begin to rethink the nature and scope of “common law” in the early republic. And by reconsidering both, we can better understand the legal legacy of Alexander Hamilton.
