1. Remarks on an Act for settling Intestate Estates, Proving Wills, and Granting Administrations, made in the New York Assembly February 14, 1787, in Syrett, Harold C., ed., The Papers of Alexander Hamilton, 27 vols. (hereafter PAH.) (New York: Columbia University Press, 1961–87), 4:69–70Google Scholar.

2. PAH, 4:69.

3. People v. Croswell, 3 Johns. Cas. 337 (N.Y., 1804). Harry Croswell published two libelous remarks about President Thomas Jefferson: that he was hostile to the United States Constitution and that he paid scandalmonger James Callender to attack former President John Adams (calling him a “hoary headed incendiary”) and to posthumously libel George Washington (as a “traitor, a robber, and a perjurer”). For these assertions, the Republican powers in New York brought Croswell to court on criminal libel charges and he was indicted on January 10, 1803. For a complete narrative of the case's background, including excerpts of Croswell's libelous article and the resulting indictment, as well as pretrial and trial arguments, motions, delays, and changes of venue, see Goebel, Julius Jr., ed., The Law Practice of Alexander Hamilton: Documents and Commentary, 5 vols. (hereafter LPAH.) (New York: Columbia University Press, 1964–81), 1:775–90Google Scholar. Hamilton was only involved in the arguments for retrial.

4. The exceptions are Julius Goebel Jr. and Daniel J. Hulsebosch who each describe Croswell's significance as a common-law “reception” problem. Goebel discusses common law reception at length in Antecedents and Beginnings to 1801 (The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States, vol. 1 [New York: The MacMillan Company, 1971], 116–18). He identifies the crucial issue in Croswell––that the court must declare the law in force––but he considers the prosecution and defense to be offering two sets of competing common-law rules. In this way, Goebel does not see past a “strict” interpretation of common law. Hulsebosch pays only passing attention to the case in footnotes. Citing Goebel's chapter on the Croswell case in the first volume of LPAH, Hulsebosch notes that “there were great debates over which rules represented the true common law. A good example is the prosecution of New York Federalist editor Harry Croswell...” Hulsebosch, like Goebel, thinks only in terms of judicial “rules.” See Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: The University of North Carolina Press, 2005)Google Scholar, 398, n. 60. Unlike Goebel and Hulsebosch, most scholars have missed the constitutional question at the heart of Croswell because they have relied primarily on William Johnson's case reports and its condensed summary of arguments. George Caines, representing the state in Croswell, published a more complete account of the attorneys' speeches in 1804. These published speeches reveal the constitutional uncertainty undergirding the attorneys' arguments. When referring to Van Ness', George Caines', Spencer's, and Harison's arguments, I cite this publication instead of the Johnson reports. See George Caines, The Speeches of at Full Length of Mr. Van Ness, Mr. George Caines, The Attorney-General, Mr. Harrison, and General Hamilton, in the Great Cause of the People, against Harry Croswell, on an Indictment for a Libel on Thomas Jefferson, President of the United States (New York: G. & R. Waite, 1804)Google Scholar. When I refer to Hamilton's arguments I cite a reprinted excerpt of Speeches at Full Length that can be found in LPAH 1:808–33. Goebel's printed excerpt of Hamilton's address in Speeches at Full Length is lengthier than the version printed in the Early American Imprints collection of Waite's Speeches at Full Length.

5. Leonard W. Levy cites Croswell in his chapter entitled “The Emergence of an American Libertarian Theory,” in Emergence of a Free Press (New York: Oxford University Press, 1985), 338–40Google Scholar. Also see Walter Berns' argument in “Freedom of the Press and the Alien and Sedition Laws: A Reappraisal” that Alexander Hamilton and James Kent were “the men principally responsible for the development of a liberal law of free speech and press––for fashioning a remedy for the deprivation of the constitutional rights of freedom of speech and press” during the early republic (Supreme Court Review 1970 [1970]: 111). Like Berns, Michael Kent Curtis credits Federalists Alexander Hamilton and James Kent with invoking “a more liberal vision of the law of sedition than the common law” and even “a Federalist vision of free speech.” See Free Speech, “The People's Darling Privilege”: Struggles for Freedom of Expression in American History (Durham: Duke University Press, 2000), 112–15Google Scholar. And although Robert W. T. Martin recognizes the competing ideas and ambiguities in seventeenth- and eighteenth-century free press doctrine, he also credits Hamilton's defense of Harry Croswell as part of “the emergence of a recognizably modern concept of democratic press liberty.” See The Free and Open Press: The Founding of American Democratic Press Liberty, 1640–1800 (New York: New York University Press, 2001)Google Scholar, 155, 160.

6. James Morton Smith has been critical of Hamilton in particular, but also of the general “suppression” of the press in this period. See, in general, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca: Cornell University Press, 1956)Google Scholar. Smith portrays Hamilton as a leading suppressor of the press in “Alexander Hamilton, the Alien Law, and Seditious Libels,” particularly for Hamilton's failure to come out strongly against the Sedition Act and for his complicity in the 1799 trial of Frothingham, David (The Review of Politics 16 [1954]: 305–33).Google Scholar

7. There can be a fine line between “declaring” the law and “changing” the law. In Croswell, however, the court's duty to declare the law resulted from the opposing premises adopted by each side. The defense assumed that the law of criminal libel was never settled in New York State; therefore, no matter what outcome the judges selected, the court would not be “legislating,” or actively changing what they acknowledged to be existing law; instead, the court would be determining criminal libel law's official, doctrinal starting point on the New York record. In this way, a new legal outcome could be generated within the boundaries of a “proper” judicial adjudication. The prosecution adopted the opposite premise: the law had been already in force in New York, and to deviate from King's Bench and colonial precedent (Peter Zenger's case) would be to inappropriately alter the law by judicial judgment. Therefore, neither side asked the Croswell court to change the existing law.

8. Attorney General Ambrose Spencer, for example, referred to the common law's distinction between law and fact––which were usually considered the separate provinces of judge and jury––as “the bulwark of legal security” in Speeches at Full Length, 49.

9. This exploration of People v. Croswell and the continued reception of common law into the early republic period builds upon generations of scholarship that has been mostly, although not exclusively, focused on the reception of common law into the American colonies. I have posited that New York's leading lawyers and judges accepted the broadest possible conception of “common law” as received under New York's reception clause, and that Americans continued to rely on the entire English constitution as a vast body of legal rules and precedents to inform, but not to control, the substance of their republican law. For the scholarship on common-law reception, see Stoebuck, William B., “Reception of English Common Law in the American Colonies,” William and Mary Law Review 10 (1968): 393–426Google Scholar; Reinsch, Paul Samuel,“The English Common Law in the Early American Colonies,” in Select Essays in Anglo-American Legal History, 3 vols. (Boston: Little, Brown, and Company, 1907–9), 1:367–415Google Scholar; Goebel, Julius Jr., “King's Law and Local Custom in Seventeenth Century New England,” Columbia Law Review 31 (1931): 416–48CrossRefGoogle Scholar; and “The Common Law and the Constitution,” in Chief Justice John Marshall: A Reappraisal, ed. Jones, W. Melville (Ithaca: Cornell University Press, 1956), 101–23Google Scholar; and Brown, Elizabeth Gaspar, British Statutes in American Law, 1776–1836 (Ann Arbor: University of Michigan Law School, 1964)Google Scholar.

10. See Part I, as well as Lobban, Michael, “From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime, c. 1770–1820,” Oxford Journal of Legal Studies 10 (1990): 307–52CrossRefGoogle Scholar.

11. These included the right to publish controversial political materials, the right to a proper jury trial, the right to protect one's reputation, and the right to equal treatment under the law.

12. Hamilton's concern for the protection of common-law rights has been hinted at by biographer John C. Miller, but otherwise, his rights consciousness is largely unacknowledged by scholars. (Alexander Hamilton: Portrait in Paradox [New York: Harper & Brown, 1959] 101–5Google Scholar.) Scholars and biographers tend to focus on other aspects of Hamilton's political and constitutional thought, such as his desire to empower the central government to be a strong fiscal-military state, his arguments in favor of an energetic executive, and his insistence that the federal judiciary be coequal to and independent from the other departments of government. For examples of these various portraits of Hamilton, see Edling, Max M., A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (New York: Oxford University Press, 2003)CrossRefGoogle Scholar; Flaumenhaft, Harvey, The Effective Republic: Administration and Constitution in the Thought of Alexander Hamilton (Durham: Duke University Press, 1992)Google Scholar; and Rossiter, Clinton, Alexander Hamilton and the Constitution (New York: Harcourt, Brace & World, Inc., 1964)Google Scholar. However, Hamilton's well-known distrust of the masses, his tendency to suspect the common man as unfit to govern himself, and his arguments against a civil jury clause and a bill of rights in the United States Constitution have not helped his historical reputation as a rights-conscious Framer. On Hamilton's suspicions of “the people's” ability to govern themselves, see Robert W. T. Martin's insightful article reconciling Hamilton's distrust of democracy with his conception of republican citizenship and a free press, “Reforming Republicanism: Alexander Hamilton's Theory of Republican Citizenship and Press Freedom,” Journal of the Early Republic 25 (2005): 21–46CrossRefGoogle Scholar. On Hamilton's skepticism of juries, particularly civil juries, see Hamilton's Federalist No. 83 and Amar, Akil Reed, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 89–92Google Scholar. Amar labels Hamilton as “hardly a jury worshipper,” but he correctly notes that Hamilton did not argue against common-law rights protection, he merely disagreed with the need for a separate declaration or bill of rights (114). In Croswell, all of the attorneys argued, in some fashion, that rights emerged from the interstices of legal process and principles. Julius Goebel Jr. noted that “the substance of individual constitutional rights was imbedded in the common law, and of this the colonials were well aware.” It makes sense, then, that Hamilton, a common lawyer of the revolutionary generation, would be concerned that a written declaration of rights had the potential to limit those many customary rights that naturally emerged from common-law process. (See Hamilton's arguments in Federalist No. 84 against a written bill of rights. Also, see Goebel, “The Common Law and the Constitution,” 103.) Finally, in light of Hamilton's reliance on his “extensive” conception of the common law as his go-to legal strategy to defend rights claims, I disagree with Daniel Hulsebosch's comment––albeit made in passing––that Hamilton found the common law “inadequate” for the protection of liberties (Hulsebosch, Constituting Empire, 288).

13. Lewis presided over the trial, which proceeded at the Circuit Court convened at Claverack, New York on July 7, 1803.

14. LPAH, 1:789–90.

15. Both the prosecution and the defense retained different combinations of legal counsel at each stage of the Croswell proceedings. Only Ambrose Spencer and William Van Ness appeared consistently. For details, see LPAH, 1: 779–93.

16. Oldham, James, English Common Law in the Age of Mansfield (Chapel Hill: University of North Carolina Press, 2004) 228–29Google Scholar. Note that each Croswell attorney also addressed one or more of these King Bench cases throughout their speeches.

17. Ibid., 229. Mansfield suggests that jurymen, who were subject to bias and prejudice, would disrupt the staid course of the law if they could rule on law––in this case, on the intent of publication.

18. George Caines asked, “Was the law to receive its construction from Jury exposition, what a chaos would our books of reports present? It is only by giving to the Court exclusively, the right to determine on points of law, that the stream of Justice is made to flow in one regular and even channel.” Speeches at Full Length, 28.

19. Although this has been generally true for criminal libel actions, the larger story of English prosecutions against seditious publications suggests a more complex story behind English libel law. According to Philip Hamburger, the doctrine of criminal libel described by Mansfield only developed around 1700, and prior to the mid-1690s, criminal libel actions were not regularly used as a means to restrain the press. The English Crown used other legal actions and statutes to prosecute libel, some of which––such as Scandalum Magnatum––allowed truth as a defense to the publication of libelous news. Hamburger's findings lend historical support to the Croswell defense's argument that King's Bench libel doctrine could be considered as a relatively new legal position, and not evidence of the true common law. (Note, however, that whereas the Seven Bishops Case allowed truth as a defense, because of the political nature of the decision, Hamburger considers the case to be an exception from the developing doctrine of criminal libel law, which did not allow truth as a defense.) (“The Development of the Law of Seditious Libel and the Control of the Press,” Stanford Law Review 37 [1985]: 663Google Scholar, 668–69, 699.)

20. Lobban, “From Seditious Libel to Unlawful Assembly,” 307–22.

21. This outline of late eighteenth-century developments in English seditious libel law comes directly from Lobban's “From Seditious Libel to Unlawful Assembly,” 307–22, 349–52. Fox's Libel Act, or The Libel Act (1792) 32 Geo. III, c. 60, declared that juries should determine the general issue of guilt or innocence for criminal libel actions, but it did not mention truth as a defense. However, even if Parliament did not declare truth to be a viable defense to criminal libel prosecutions, under the Libel Act the jury had more discretion to consider truth and intent of publication as part of its general verdict. As Lord Mansfield's experience made clear, English juries resisted the narrow question of the fact of publication and would have welcomed the opportunity to decide under the general issue. (Oldham, English Common Law in the Age of Mansfield, 218–19.)

22. Van Ness, Speeches at Full Length, 9; Hamilton, LPAH, 1: 820.

23. Caines, Speeches at Full Length, 33.

24. Ibid., 35, 48.

25. Ibid., 41.

26. Ibid., 22. Some scholars seem to doubt Caines' assertion that the law developed to protect against breaches of the peace. Hamburger, in particular, notes how criminal libel doctrine became as a way for the King to prosecute seditious subjects when other legal remedies—licensing laws, treason, Scandalum Magnatum, various Tudor felony statutes, heresy––fell into obsolescence for varied reasons. Although the Crown used criminal libel law, in part, to keep the peace, political motivations seemed to be the more dominant reason for the development of criminal libel law in the late seventeenth century. (Hamburger, “Development of the Law of Seditious Libel,” 664–65, 692, 697–714.) In New York, the Croswell case divided along political lines, strongly suggesting that political motivations lurked behind Croswell's indictment for criminal libel. Still, it is understandable that in the American Republic, where political partisanship was considered a poison to the republican experiment, politically charged, seditious speech might incite party passions and lead to a breach of a community's peace. Political motivations and the breaking of the peace were intertwined in America, as they were in England.

27. Caines, Speeches at Full Length, 42.

28. Caines, referring to the Dean of St. Asaph's Case, in Speeches at Full Length, 43.

29. As counsel for the defense in Rex v. Shipley (or, the Dean of St. Asaph's Case), Thomas Erskine would have turned Caines' argument back around on the Croswell prosecution. To Erskine, precisely because seditious publications could incite discord, determining the seditious nature of the words necessarily relied on the context of the publication, and, therefore, was a fact (and not a question of law) for the jury to decide. (Context was difficult to capture on the written record, and yet, according to common-law rules, the judge could only base his decision on the law from the information and evidence captured on the record.) Therefore, when placed in the changing context of the late eighteenth-century law of seditious libel, Caines' point about protecting against breaches of the peace would serve to aid Croswell's argument that under New York law, the jury should decide the general issue. (See Lobban, “From Seditious Libel to Unlawful Assembly,” 316–17.)

30. Caines, Speeches at Full Length, 20, 38, 44. Considering the “right of reputation” as a form of property right to be enforced by a libel prosecution was common in England (Lobban, “From Seditious Libel to Unlawful Assembly,” 311). It also makes sense in the context of prevailing Anglo-American cultural norms––namely, the honor culture of the late eighteenth century (See, generally, Freeman, Joanne B., Affairs of Honor: National Politics in the New Republic [New Haven: Yale University Press, 2001]Google Scholar).

31. Caines, Speeches at Full Length, 40.

32. Van Ness, Speeches at Full Length, 10.

33. Caines claimed that to ease the severity of King's Bench criminal libel law would be to allow a form of unfair, extralegal proceedings: “A man may be a worshiper of God or of fire; he may be a Hindoo, a Manichean, or a Copt: he may believe in all the Gods of antient mythology, or the materialism of Spinosa, and neither by our Constitution, nor that of the United States, will one, or all of these circumstances affect his eligibility to any of the various offices in our system. Yet, if he fail in what any printer shall please to think a moral obligation; if he avail himself of any limitation, or other act against the opinion any fellow, who has credit or friends to procure ink, types, and a press; he is, to the endangering that peace, the Constitution is so desirous to preserve, to be arraigned before a tribunal unknown to the law of the land. A self-erected jurisdiction, where the accuser, judge, jury and executioner, may be united in one malignant wretch.” He then went on to underscore the inherent unfairness of the defense's suggested legal double standard: “But on what principle of Justice is there to be one law for the reputation of the private man, and another, or none for that of the magistrate? Why is not the name of the latter as much entitled to protection as that of the former?” Speeches at Full Length, 39–41.

34. Caines does not specify how, in fact, unpunished libels would affect a person's property, real or chattel, unless he was referring to the public man's reputation as property. Ibid., 44.

35. Spencer, Speeches at Full Length, 53.

36. Harison, Speeches at Full Length, 55.

37. It may seem surprising that members of a generation who protested parliamentary legislation during the Anglo-American imperial crisis would be willing to confer on Parliament, the institution that passed the “tyrannical” Declaratory Act of 1766, the status of highest court. However, even the revolutionary generation understood Parliament to be the highest court of the English realm, if not the highest court of her colonies (Americans maintained that the highest legislature and court in each colony was the combined authority of the King presiding in his colonial legislatures). Therefore, Croswell's defense counsel and the New York bench would have thought nothing of admitting that Parliament had the power to declare what the common law was in England, even if the American revolutionaries would not have granted Parliament the power over the customary rights and common law that her colonies claimed. For the best treatment of the legal and constitutional disputes between the American colonies, Parliament, and the King, see Reid, John Phillip, Constitutional History of the American Revolution, Abridged Edition (Madison: The University of Wisconsin Press, 1995)Google Scholar.

38. Matthew Hale described Parliament as “the high and supreme court of this kingdom.” Hale elaborated on the dual nature of Parliament's adjudicatory and law making powers: “Touching the power of parliament, either it respects things done or things to be done. In respect of things already done. This is the judicative power of parliament, which is the supreme judicature...in respect of things to be done, wherein it acts under a double notion, viz. either by way of council or by way of law...As touching the legislative power...this power of law making is exercised: (1) in imposing charges as subsidies &c. (2) in enacting new laws, (3) in declaring laws...” (Sir Matthew Hale, The Prerogatives of the King, ed. Yale, D.E.C. [London: The Selden Society, 1976], 135Google Scholar, 140–41).

39. The Libel Act (1792) 32 Geo. III, c. 60.

40. LPAH, 1:826.

41. Ibid.

42. Van Ness cited four statutes, passed between 1275 and 1554, which suggested that the law of England only punished false or malicious publications. Speeches at Full Length, 7.

43. LPAH, 1: 814–15. Van Ness also raises this point, rhetorically asking why it was that, in English criminal law, only criminal libel law set a different standard for juries to find only the fact of publication and not the publisher's intent––especially when intent constituted the crucial element of criminal acts. Van Ness, Speeches at Full Length, 10, 11.

44. LPAH, 1: 826.

45. Ibid., 1: 827. Hamilton looked to Fox's Libel Act as a declaration, or confirmation, of the law of seditious libel, but a declaration that had the imprimatur of the highest court in the realm. Fox's Libel Act did not “come up” to Parliament on appeal––and, therefore, in this sense, the Act was not perfectly analogous to a judicial decision handed down on a specific case. However, New York's constitution borrowed the House of Lord's example, and vested simultaneous legislative and judicial powers in the Senate (the senators and the lieutenant-governor acting as president of the Senate, along with the chancellor and judges of the Supreme Court constituted the highest court of New York, the Court for the Trial of Impeachments and the Correction of Errors). Therefore, Hamilton did not have to label Fox's Libel Act as either a legislative or judicial declaration of the law because inherently in the Act, as a statute of Parliament, it was both. The English constitution had developed such that parliamentary output was simultaneously legislative and judicial in nature, and because the New York constitution recreated a similar mixture of legislative and judicial powers in its upper house, the New York bench would have understood the complexity behind Hamilton's statement that the “highest branch of the judicature” of England had determined the true doctrine of criminal libel law.

46. Spencer, Speeches at Full Length, 50.

47. Ibid., 48; Caines had previously made a similar point (Speeches at Full Length, 35).

48. Spencer, Speeches at Full Length, 47. Fox's Libel Act did not declare “truth” to be a defense to criminal libel actions; therefore, argued Spencer, even if the prosecution granted that the 1792 Libel Act was declaratory of common law, the court could not apply the Act to Croswell's second ground for retrial.

49. Spencer, Speeches at Full Length, 49.

50. Evolving and uniquely American ideas of separating judicial from legislative power hinged on the common-law notion that judges only “declared” the law rather than “making” the law. Even in England, however, this distinction, although important, was somewhat of a legal fiction; it served the purpose of reminding judges to be conservative, rather than innovative, and to apply existing principles to new cases at hand as much as possible. American judges inherited the same notion, but endured the extra pressure brought on by the demands of American theories of separating governmental powers. American judges could be accused of inappropriately “usurping” legislative power (and, depending upon when and where the “usurpation” occurred, could be punished by the legislature) if they were perceived as innovating on the law. It is significant to note, then, that Alexander Hamilton's strategy allowed American judges to declare alternative legal doctrines without improperly becoming “innovators” or “legislators.” Hamilton offered a way for American judges to reconcile their judicial duty to “declare” new legal outcomes through his conception of an extensive common law. (For a discussion of America's eighteenth-century, common-law legal culture, see Hobson, Charles F., The Great Chief Justice: John Marshall and the Rule of Law (Lawrence: University Press of Kansas, 1996), 33–46Google Scholar. Also, to understand how Americans inherited and adapted the common-law concept of “judicial duty” from English jurisprudence, see, generally, Parts IV–VII in Hamburger, Philip, Law and Judicial Duty (Cambridge, MA: Harvard University Press, 2008)CrossRefGoogle Scholar. On the other hand, republican legislatures at both the state and federal levels routinely blurred the boundaries between legislative and judicial power during this period. The line between “making” law and “declaring” the law in many state legislatures, and under certain state constitutions, was so fine as to occasionally appear to be nonexistent. In New York, for example, the state constitution did not provide for the separation of the judiciary from the legislature and the executive, and, in fact, these powers blended in New York's Council of Revision, as well as the Court for the Trial of Impeachments and the Correction of Errors (modeled, as mentioned, after the English House of Lords; see LPAH, 1:17–18, 178.) Connecticut retained its 1662 colonial charter (purged of monarchical elements), and under this constitutional arrangement, the legislature acted as the high court of the state. (The United States Supreme Court discussed the Connecticut legislature's Parliament-like capacity at length in their 1798 Calder v. Bull decision.) New Hampshire's legislature restored litigants to their law––effectively overturning court decisions––and it actively legislated state judges out of office when it disagreed with court decisions. (See Reid, John Phillip, Legislating the Courts: Judicial Dependence in Early National New Hampshire (DeKalb: Northern Illinois University Press, 2009), 7–13.Google Scholar) The pre-Marshall Supreme Court acknowledged these blurry boundaries of state legislative and judicial powers in decisions such as Chisholm v. Georgia (1793, James Iredell's opinion in particular), Calder v. Bull (1798), and Cooper v. Telfair (1800). Finally, even Congress (along with various state assemblies) regularly adjudicated claims made on state debts and contracts. (See Desan, Christine A., “Contesting the Character of the Political Economy in the Early Republic: Rights and Remedies in Chisholm v. Georgia,” in The House and Senate in the 1790s: Petitioning, Lobbying, and Institutional Development, ed. Bowling, Kenneth R. and Kennon, Donald R. (Athens: Ohio University Press, 2002), 178–233.Google Scholar)

51. Van Ness, Speeches at Full Length., 9.

52. LPAH, 1: 830.

53. See LPAH 1:17–18, 78. In addition, see “Collision between the Supreme Court and the Court of Errors of the State of New York,” American Law Magazine 3 (1844): 317Google Scholar. In Constituting Empire, Daniel Hulsebosch discusses how the Court for the Trial of Impeachments and the Correction of Errors fit into New York's late eighteenth-century constitutional fabric (see 180–82). Theodore F. T. Plucknett and Philip Hamburger describe how Parliament, as the highest court in the realm, presided as the dernier resort of the English legal system. See Plucknett, “The House of Lords as a Court of Law, 1784–1837,” Law Quarterly Review 52 (1936): 189Google Scholar, and Hamburger's chapter, “No Appeal from Parliament,” in Law and Judicial Duty, 237–54.

54. Take, for example, Congress relying on parliamentary precedent as a model to run the trial of Robert Randall and Charles Whitney (see the Annals of Congress from Monday, December 28, 1795 to Friday, January 8, 1796). Also, eighteenth-century American statesmen oftentimes consulted Petyt, George's Lex parliamentaria: or, A Treatise of the law and custom of the Parliaments of England (London: T. Goodwin, 1690)Google Scholar.

55. At the end of its term, in May 1804, the court handed down a divided decision, 2–2, thus defeating the motion for Harry Croswell's retrial. However, since the beginning of February 1804, the New York Assembly and Senate had been considering various bills to “declare” the law of criminal libel once and for all. Their legislative efforts became law on April 15, 1805, and provided that in libel actions, the jury had the right to consider both law and fact and the jury did not have to find the defendant guilty based solely on the fact of publication. The law also allowed the defendant to offer truth as a justification for his libelous publication (N.Y. Sess. Laws 1805, ch. 90). James Kent referred to the law as a “declaratory statute,” thus underscoring his assumption that the legislature had exercised its Parliament-like capacity to declare the common law in force in New York State. (Forkosch, Morris D., “Freedom of the Press: Croswell's Case,” Fordham Law Review 33 [1965]: 445–48Google Scholar.)

56. Van Ness, Speeches at Full Length, 17.

57. In Federalist No. 79, Hamilton makes his strongest statements about the importance of an independent judiciary. Hamilton praises the federal Constitution for allowing its judges to serve under good behavior and without fear of having their salaries reduced by Congress for any unpopular decisions made from the bench. Unlike in New York, the federal Constitution did not intermingle legislative and judicial personnel in a high court or in a council of revision. Under the 1777 state constitution, New York judges held their tenure under good behavior (although they could not serve past age 60), and in Federalist No. 79, Hamilton remarked that this age restriction was unpopular and that, in general, state constitutions should have done a better job protecting judges' salaries. Therefore, for all of these reasons, Hamilton most likely thought that New York state judges were not ideally independent; however, he still thought them independent enough to be more willing to safeguard individual rights than either a legislator or executive official.

58. Passed March 17, 1783. Laws of the State of New York 6 Sess. 1783, c. 31.

59. The Trespass Act also authorized transitory prosecutions of trespass (prosecuted in courts beyond the vicinity where the offense occurred), which gave Patriot plaintiffs their pick of favorable local courts. Furthermore, it stipulated that not only the defendant, but his representatives, executors, and heirs, were subject to prosecution. Finally, the Act made the first court to hear a case also the final court of record, thus denying removal to a higher court or appellate review.

60. In his biography of Hamilton, John C. Miller posited that Hamilton signed his essays with the great Athenian statesman's name because Phocion had offered Athens much “safe and wholesome counsel,” which his fellow citizens did not follow. Miller suggests that Hamilton recognized that his advice to Patriot New Yorkers would be ignored in the short term, but it would prove well-founded over time (Miller, Alexander Hamilton: Portrait in Paradox, 103).

61. “A Letter from Phocion to the Considerate Citizens of New York” (New York, January 1–27, 1784). Hamilton wrote: “The 13^th article of the constitution declares, ‘that no member of this state shall be disfranchised or defrauded of any of the rights or privileges sacred to the subjects of this state by the constitution unless by the law of the land or the judgment of his peers.’ If we enquire what is meant by the law of the land, the best commentators will tell us, that it means due process of law, that is, by indictment or presentment of good and lawful men, and trial and conviction in consequence.” (PAH, 3:485.)

62. Ibid., 3:532.

63. Ibid., 3:532–33.

64. The 1783 Treaty of Peace forbade any future prosecutions for anything done on account of the war. Hamilton asked, “Can we then do by act of legislature, what the treaty disables us from doing by due course of law?” (Ibid., 3:488).

65. Hamilton wrote, “...the people, at large, are sure to be the losers in the event whenever they suffer a departure from the rules of general and equal justice, of from the true principles of universal liberty” (Ibid., 3:486).

66. Hamilton was quick to equate any tampering with due process with tyranny. By passing the Trespass Act, which altered and limited the normal course of common-law process, he accused the legislature of usurping the judiciary's powers and of “subvert[ing] the constitution and erect[ing] a tyranny” (Ibid., 3: 548). Hamilton did not let the judiciary off the hook either; in remarks made while he served in the assembly, Hamilton made it clear that he thought that the 13th article of the New York state constitution––which he described as guaranteeing due process of law––applied to the judicial actions. In this way, the courts would be acting unconstitutionally if they denied process as it comported with the law of the land––that is, the due process of law. See Hamilton speaking during deliberations on an “Act for Regulating Elections” in the New York Assembly on February 6, 1787. During that debate he remarked, “The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature” (Ibid., 4:35).

67. Remarks on an Act of Regulating Elections, made in the New York assembly on January 24, 1787 (Ibid., 4: 22). Also, Miller, Alexander Hamilton: Portrait in Paradox, 104.

68. Federalist No. 78. Emphasis added.

69. Lucius Crassus was a lawyer and politician who supported efforts to reform the Roman courts. His contemporaries considered him to be one of the greatest orators before Cicero, and years after Crassus' death, Cicero featured him in De oratore (55 B.C.E.). Although Harold C. Syrett does not identify Crassus in PAH, a brief summary of Crassus' life can be found in the Encyclopædia Britannica, 15th ed., s. v. “Lucius Licinius Crassus.”)

70. The Judiciary Act of 1801 (or, “An Act to provide for the more convenient organization of the Courts of the United States,” U.S. Stat. 2:89–100) and “An Act for altering the times and places of holding certain Courts therein mentioned, and for other purposes” (U.S. Stat. 123–24) were repealed on March 8, 1802 (U.S. Stat. 2:132). After the repeal, Congress effectively restored the judicial system created under the Judiciary Act of 1789 (“An Act to establish the Judicial Courts of the United States,” U.S. Stat. 1: 73–93). The Judiciary Act of 1801 had reduced the number of Supreme Court justices (which would have gone into effect only after a sitting Supreme Court justice retired) and established sixteen circuit court judgeships. President Adams had already filled those new positions when the repeal became law. After the Republican Congress repealed the 1801 Judiciary Act and abolished the judgeships, Federalists, including Hamilton, lamented Congress' actions as a threat to an independent federal judiciary. The judiciary could not be independent, they argued, if Congress could remove federal judges from their offices at will.

71. While making a case for a judge's “vested right” in his office, Hamilton described his general approach to interpreting rights: “provisions which profess to confer rights on individuals, are always intitled [sic] to a liberal interpretation in support of the rights, and ought not, without necessity, to receive an interpretation subversive of them.” (“The Examination, No. XVII,” PAH, 25: 573.) Hamilton also discusses a judge's vested right to his office in “The Examination, No. XII” (PAH, 25: 533). During this time, however, the notion of a judge's property interest in his office existed in tension with a new administrative model of office-holding, where the office holder held his office at the discretion of the executive. See Nelson, William E., “Officeholding and Powerwielding: An Analysis of the Relationship between Structure and Style in American Administrative History,” Law and Society Review 10 (1976): 195CrossRefGoogle Scholar, 200, 203.

72. Hamilton attempts to make this point in the “Examination” essays Nos. XII–XVII, but he gives a particularly dire forecast of the effects of the 1801 Judiciary Act's repeal in No. XII, PAH, 25:535.

73. “The Examination, No. XIV,” Ibid., 25: 551. A similar sentiment can also be found in “The Examination, No. XII,” Ibid., 25: 529.

74. “The Examination, No. XIV,” Ibid., 25: 551.

75. “The Examination, No. XIV,” Ibid., 25: 549.

76. “The Examination, No. XVII,” Ibid., 25:575. Hamilton would later echo this sentiment in Croswell (LPAH, 1: 811). He reasoned that the British monarch cannot attack English judges alone, but he must instead be united with the two houses of Parliament. And if Parliament attacked English judges, the monarch could more easily resist Parliament's efforts. In America, on the other hand, executives were too weak to pose a serious threat to judges themselves or to stave off a legislative attack on American courts. And republican legislatures––like Congress––proved to be dangerous to the American judiciary if the courts were not adequately separated and made independent from legislatures.

77. LPAH, 1: 811. Hamilton was quick to praise the court, however, stating that “No man can think more highly of our judges and I may say personally so, of those who now preside, than myself; but I must forget what human nature is, and what her history has taught us, that permanent bodies may be so corrupted, before I can venture to assert that it cannot be” (Ibid., 1:810).

78. Ibid., 1:811.

79. This quote is taken from James Kent's notes on Hamilton's speech, Ibid., 1:834. Oftentimes Kent's notes provide more succinct paraphrases of Hamilton's comments than does Waite's published version of Hamilton's speech.

80. Hamilton proved prescient. In the years after the New York legislature's 1805 declaration of criminal libel law, New York judges, including James Kent, managed to apply libel law instrumentally in order to suppress unfavorable political criticism. See Roper, Donald's “James Kent and the Emergence of New York's Libel Law,” American Journal of Legal History 17 (1973): 223–31CrossRefGoogle Scholar.

81. James Kent's notes, LPAH, 1:834.

82. Ibid., 1:823–24. Emphasis added.

83. Ibid., 1: 829.

84. Ibid., 1: 829–30. Hamilton on the wisdom of reading common-law principles into the United States Constitution: “The Habeas Corpus is mentioned, and as to treason, it adopts the very words of the common law. Not even the Legislature of the union can change it. Congress itself can not make constructive, or new treasons. Such is the general tenor of the constitution of the United States, that it evidently looks to antecedent law. What is, on this point, the great body of common law? Natural law and natural reason applied to the purposes of Society.”

85. James Kent's notes, Ibid., 1: 838.

86. Hamilton is most likely referring to the investigation of Supreme Court Justice Samuel Chase and District Court Judge Richard Peters, along with the impeachment trial of District Judge John Pickering. A few days after his arguments in People v. Croswell, Hamilton would respond to Robert G. Harper's “letter on the subject of the impeachment of the Judges” Chase and Pickering. Hamilton told Harper, a Federalist lawyer, that he had “very little doubt that [the impeachments] are in prosecution of a deliberate plan to prostrate the independence of the Judicial Department, and substitute to the present judges creatures of the reigning party, who will be the supple instruments of oppression and usurpation, under the forms of the Constitution.” (PAH, 26:190–91.)

87. LPAH, 1: 830.

88. Hurst, James Willard, “Alexander Hamilton, Law Maker,” Columbia Law Review 78 (1978): 483CrossRefGoogle Scholar.

89. James Kent to Elizabeth Hamilton (“Chancellor Kent's Memories of Alexander Hamilton”), December 10, 1832, in Kent, William, Memoirs and Letters of James Kent (Boston: Little, Brown, and Company, 1898), 323–24Google Scholar, 326.

90. The idea that common law constituted the English polity, and regulated the English people along with all of the institutions, jurisdictions, and authorities of the government, derived from sixteenth- and seventeenth-century English common lawyers and their notions of the ancient constitution of England. See Burgess, Glenn' The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603–1642 (University Park: The Pennsylvania State University Press, 1992)CrossRefGoogle Scholar which describes the central place of common law in pre-Civil War legal thinking, including the common law's relationship to the ancient constitution (ch. 1–3). Americans of the revolutionary generation also found common law to be the constitutive force of the eighteenth-century British constitution, and a defining feature of the American colonies' relationship to the King and Parliament. See Reid, Constitutional History of the American Revolution, 3–25.

91. This is the main argument in chapter 1, “The Emergence of an Instrumental Conception of Law,” in Horwitz, Morton's The Transformation of American Law, 1780–1860 (Cambridge, MA: Harvard University Press, 1977), 1–30CrossRefGoogle Scholar. I do not deny that some Americans thought of the common law in exactly the way Horwitz described it––as inflexible precedent––but Horwitz does not account for a counterperspective of common law. The Hamiltonian view of common law allows for the same transformation in substantive legal doctrines that Horwitz describes, but his “extensive” common law did not require judges to become so audaciously assertive. According to Hamilton's argument, judges could analyze rules functionally without causing Horwitz's “fundamental shift in the conception of law” (4). Instead, the “extensive” common law allowed the same economic or social policy ends to be accomplished without departing sharply from traditional practice.

92. Philip Hamburger has defined the “judicial duty” of the Anglo-American judge as deciding a case in accordance with the law of the land. Judicial review, he argues, is merely a part of the larger duty of the common-law judge. See, in general, Law and Judicial Duty.

93. Early Republic judges and lawyers recognized that “the common law” contained subcategories of law, including the law of nature, the law of nations, the civil law, the law merchant, equity principles, admiralty law, and lex loci. (White, G. Edward, The Marshall Court and Cultural Change, 1815–1835, Abridged Edition [New York: Oxford University Press, 1991], 112.Google Scholar) Speaking in the early nineteenth century, moderate Pennsylvanian Republican Alexander Dallas even sounded distinctly Hamiltonian in his conception of common law: “...independent of the common law, rights would remain forever without remedies and wrongs without redress. The law of nations, the law of merchants, the customs and usages of trade, and even the law of every foreign country in relation to transitory contracts originating there but prosecuting here, are parts of the common of Pennsylvania.” (Quoted in Ellis, Richard E., The Jeffersonian Crisis: Courts and Politics in the Young Republic [New York: Oxford University Press, 1971], 179.Google Scholar)

94. See Parker, Kunal M.'s Common Law, History, and Democracy in America, 1790–1900: Legal Thought before Modernism (New York: Cambridge University Press: 2011), 15–23CrossRefGoogle Scholar. Parker describes how Americans found the common law useful because it reached back to a time “beyond the memory of man” and thus defied historical specification or determination. Americans could then conceive of parts of the common law as contingent and applicable to the American Republic. At the same time, the entire common law itself became an agent of history, moving American society away from a feudal past and toward commercial society.

95. On the relationship between historiographical methodology and the common law, see Pocock, J.G.A.'s The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (New York: Cambridge University Press, 1957)Google Scholar and Burgess, The Politics of the Ancient Constitution.

96. Bernadette Meyler has argued that Americans of the revolutionary generation considered the common law to be flexible and adaptive, but she focuses mainly on interpreting references to the common law in the federal Constitution (“Towards a Common Law Originalism,” Stanford Law Review 59 [2006]: 572–80Google Scholar). Michael Lobban also argues that common law is inherently flexible, although his reasoning differs from the Hamiltonian “extensive” common law described here. For Lobban (who writes only with England in mind), the common law was a system designed to provide remedies, and as long as the rigors of pleading remained intact, the outcome of any common-law action––the remedy––was flexible, adaptive, and able to provide different outcomes according to the circumstances of each case. According to Lobban, the typical eighteenth-century common lawyer viewed the common law as an adaptive system and not as a body of rules that could be distinctly defined. (The Common Law and English Jurisprudence, 1760–1850 [New York: Oxford University Press, 1991], 1–16.CrossRefGoogle Scholar)