Conceived in Liberty
How William Livingston gave the American Revolution its rationale
Sons of the Revolution in the State of New York, Inc.; ©Fraunces Tavern Museum, New York City
In John Adamss view, the American Revolution started long before the shots rang out at Lexington and Concord in April 1775. But what do we mean by the American Revolution? he asked in an 1818 article. Do we mean the American War? The Revolution was effected before the War commenced. The Revolution was in the minds and hearts of the people; a change in their religious sentiments, of their duties and obligations . . . . This radical change in the principles, opinions, sentiments, and affections of the people was the real American Revolution. And anyone who wants to trace how that revolution managed to change the temper and views of the people and compose them into an independent nation need only consult the pamphlets, newspapers, and even handbills that flooded America between 1760 and 1775. However spectacular, the war was only an effect and consequence of that revolutionized worldview, Adams told Thomas Jefferson in an 1815 letter.
But the cultural transformation that Adams described had started even earlier than the 1755 Harvard grad remembered. It began in New York, with a shy but inwardly fiery lawyer named William Livingston, the most experienced polemical writer in the colonies, judges Bernard Bailyn, our leading historian of colonial thought. Livingston edited and mostly wrote a weekly magazine, The Independent Reflector, that from November 1752 to November 1753 infused throughout British America the Lockean ideas of government by consent and the right of the people to depose a tyrannical king. Livingston won loyal subscribers, including Benjamin Franklin, in Philadelphia, Boston, and beyond, and colonial newspapers reprinted the Reflectors essays for years afterward. James Madison recalled that his fellow Princeton students read them avidly two decades later and strove to emulate their distinctive energy and eloquence in their public-speaking assignments. Though Livingston remained an active polemicist for the next quarter-century, and though he served in the Continental Congress and the Constitutional Convention and as governor of New Jersey for 14 years, no mark he made on the fate of the continent proved as indelible as the one he imprinted in those 12 momentous months in the mid-eighteenth century.
At 13, rather than the usual 17, Livingston went to Yale, and he emerged after graduation in 1741 a youth transformed, not by the dry Presbyterian orthodoxy of the colleges teaching but by the riches of its library, which electrified him. He devoured Locke, along with other classics of mid-seventeenth-century English republicanism that he later cherished in his own large library. He read Joseph Addisons 1712 verse drama of Cato, the heroic champion of Roman republicanism against Julius Caesars military dictatorship and the embodiment of what the colonists meant by republican virtue, and he read the popular magazines Addison wrote with Sir Richard Steele—the Tatler and the Spectator—which, in their breezy way, sought to cultivate in their readers the skeptical good sense and educated taste that judge everything freely, politics included. He also read the eras greatest writer, Alexander Pope, whose poetic satires proved the power of public ridicule to combat abuses.
Livingstons father, a great Hudson Valley landowner and merchant, apprenticed him in 1742 to New York Citys leading attorney, James Alexander. The young clerk began copying wills, deeds, and so on, in that pre-photocopier, pre-computer age, and reading, often from dawn until midnight, the then-standard text, Volume One of Sir Edward Cokes Institutes, a treatise on property law that seemed to get longer the more he read, he lamented, so that twas impossible to attain the conclusion thro all the ages of Eternity. In 1745, the frustrated clerk complained in a pseudonymous newspaper column that To make a young Fellow trifle away the Bloom of his Age, when his Invention is Readiest, his Imagination Warmest, and all his Faculties in their full Vigour and Maturity was Drudgery . . . fit only for a Slave. If his boss recognized his authorship, he said nothing; but when the clerks next pseudonymous article satirized Alexanders social-butterfly wife, he got fired on the spot. His father got him a clerkship with New Yorks other top lawyer, William Smith, Sr., and made him take it.
A decade earlier, Alexander and Smith had been key figures in the famous trial of printer John Peter Zenger for seditious libel, in which, for the first time, the colonists asserted the rights of free speech, a free press, and trial by jury (see How American Press Freedom Began on Wall Street, Autumn 2010). The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America, Gouverneur Morris, who wrote the final draft of the U.S. Constitution, judged long afterward. In his apprenticeship, Livingston marinated in a radical legal and journalistic tradition that he was soon to carry on.
Livingstons fellow clerks—the bosss son, William Smith, Jr., and John Morin Scott, both Yalies related to Livingston by marriage, and both, like Livingston, Presbyterians—became his close friends and allies. The year after he joined the New York Bar in 1748, the triumvirate met to plan a weekly magazine on the model of Addison and Steeles The Spectator, for correcting the taste and improving the Minds of our fellow Citizens, Livingston wrote.
When the first issue of The Independent Reflector appeared on November 30, 1752, politics, not taste, was its keynote. The magazine, Livingston wrote, wouldnt shrink from vindicating the civil and religious RIGHTS of my Fellow Creatures: From exposing the peculiar Deformity of publick Vice, and Corruption: and displaying the amiable Charms of Liberty, with the detestable Nature of Slavery and Oppression. Nor would he hesitate to point fingers, since the obdurate Criminal, who fears not GOD himself, is seized with a Panic, at the Apprehensions of having his Actions publickly exposed by a Writer of Genius and Magnanimity, he wrote, paraphrasing Popes Epilogue to the Satires.
In the tenth issue, his corruption probe hit a nerve, when he exposed a scheme by city councillors to sell their relatives publicly owned East River lots at such low prices and easy credit terms as to amount to a theft of nearly £6,000 of the publics money. Magazine sales soared, and, in a city and province whose squalid eighteenth-century politics often turned on the business and personal feuds of the Livingston and De Lancey clans, William Livingston also liked shaming the De Lanceyite villains in this case.
But his greatest battle concerned the founding of Kings College, later Columbia, which New Yorks Anglicans (including the De Lanceys) wanted to establish as a sectarian institution with a royal charter. Their plan opened an old wound: in a colony only 10 percent Anglican, only the citys two Dutch churches and the Anglican Trinity Church had royal-charter protection, and Trinity alone received all the money from a 1693 tax imposed to support Protestant ministers, not specifically Episcopal ones. Now the Anglicans wanted to set up their own college with money raised from lotteries that the Assembly had authorized for the general Advancement of Learning, with a faculty to be paid from the colony-wide excise tax. It is a standing Maxim of English Liberty, that no Man shall be taxed, but with his own Consent, Livingston wrote. The Money hitherto collected is public Money, the Reflector observed of the college. When the Community is taxed, it ought to be for the Defence, or Emolument of the Whole: Can it, therefore, be supposed, that all shall contribute for the Uses, the ignominious Uses of a few?
Moreover, as he surveyed the colonial colleges, most looked like the Yale he remembered, places less of education than of indoctrination—literally, for they were training prospective clergymen in the doctrines of their sect. But much college teaching is bound to be indoctrination, forming as well as informing, with powerful consequences. The Principles or Doctrines implanted in the Minds of Youth, Livingston wrote, pass from the Memory and Understanding to the heart, and at length become a second Nature. In time, they appear on the Bench, at the Bar, in the Pulpit, and in the Senate, and unavoidably affect our civil and religious Principles. Therefore, instead of indoctrinating students with sectarian dogma, why not infuse them with public Spirit and Love of their Country, with Honour and Probity, and with Zeal for Liberty, which will make them more extensively serviceable to the Common-Wealth?
Since the college will be so critical for the future of all New Yorkers, why not have it publicly chartered, funded, and controlled by the peoples elected representatives in the Assembly? Since its graduates will in due course fill all the Offices of the Government, public oversight will allay fears that any one sect will gain control and teach Doctrines destructive of the Privileges of human Nature. After all, as we are split into so great a Variety of Opinions and Professions; had each Individual his Share in the Government of the Academy, the Jealousy of all Parties combating each other, would inevitably produce a perfect Freedom for each particular Party. And to ensure further that the college wont be a Nursery of Animosity, Dissention and Disorder, it should admit students of all Protestant Denominations, upon a perfect Parity as to Privileges. Madison paraphrased Livingstons idea that sect countering sect protects liberty in his great Federalist 10: while a religious sect, may degenerate into a political faction in a part of the confederacy, he wrote, the variety of sects dispersed over the entire face of it must secure the national councils against any danger that any one faction can tyrannize over the rest.
Of all possible sectarian colleges, an Anglican one would be the worst, Livingston passionately believed, since the Church of Englands 39 Articles, which the Reflector gently satirized, curb freedom of thought. Let not the Seat of Literature, the Abode of the Muses, and the Nurse of Science; be transformed into a Cloister of Bigots, an Habitation of Superstition, a Nursery of ghostly Tyranny, Livingston pleaded. And he was deadly serious in his fear of tyranny, for he thought that High-Church Anglicans resented the Glorious Revolution of 1688—with its strictly limited monarchy, its 1689 Bill of Rights, and its Act of Toleration of Protestant dissenters—and believed instead in the divine right of kings. Only six years before the Reflector began, the Stuart pretender, Bonnie Prince Charlie, had tried to restore divine right before being routed on Culloden Moor, and he still had partisans among the Tories.
The college opened as an Episcopal institution in July 1754, with seven students meeting in the Trinity Church vestry. A 1756 deal split the lottery money between the college and a quarantine center for crewmen of infected ships—between the two pest houses, William Smith, Sr., scoffed—and the college didnt shake off the stigma that the Reflector had placed on it until after the Revolution.
At its heart, the college debate was political, and it led Livingston to set forth his deepest political beliefs, the first public exposition of Lockean social-contract theory in the colonies, complete with Lockes insistence on the right to resist and depose a monarch. Journalistic and unsystematic, his half-dozen essays on the subject add up to a coherent argument that provided the Revolutions key justification. Untangled, it runs like this.
Before there was any government, nature made men free and equal and endowed them with rights. Yet people voluntarily consented to resign that Freedom and Equality and put themselves under the Government and Controul of a ruler, as a Remedy for the Inconveniences that sprang from a State of Nature, in which . . . the Weak were a perpetual Prey to the Powerful. To preserve to every Individual, the undisturbed Enjoyment of his Acquisitions, and the Security of his Person, men entered into Society and appointed magistrates or kings to decide Controversies, investing them with the total Power of all the Constituents, subject to the Rules and Regulations agreed upon by the original Compact, for the Good of the Community.
This was a choice of the lesser of two evils, for Government, at best, is a Burden, tho a necessary one. Had Man been wise from his Creation, he . . . might have enjoyed the gifts of a liberal Nature, unmolested, unrestrained. It is the Depravity of Mankind that has necessarily introduced Government; and so great is this Depravity, that without it, we could scarcely subsist, wrote Livingston, more strongly influenced by Thomas Hobbess vision of the State of Nature as a war of all against all than even Locke was. To guard against mans inborn tendency to invade the Person or Fortune of his neighbor, he wrote, echoing Hobbess understanding of psychology, we have ceded a Part of our original Freedom, to secure to us the rest.
For Livingston, the point of this account of governments origin was that it clearly marked the limits of royal power. Communities were formed not for the Advantage of one Man, he insisted, but for the Good of the whole Body. Since subjects gave their king power only to defend them in the peaceable Possession of their Rights, by punishing the Invader, only what is injurious to the Society, or some particular Member of it, can be the proper Object of civil Punishment; because, nothing else falls within the Design of forming the Society.
Yet all history shows that rulers hanker to overstep the limits of their legitimate authority because of the same all-too-human depravity that made the social contract necessary in the first place. The very Notion of Government supposes in some Person or other, a Right to decree and execute Justice, but this Power may be well or ill applied, Livingston cautioned. Rulers have abused it, because men being naturally ambitious, and aspiring after illimitable Dominion, are too apt to measure the Extent of justifiable Authority, by their insatiable Appetite for an unbounded Licentiousness. So a People should be careful of yielding too much of their original Power, even to the most just Ruler, and always retain the Privilege of degrading him whenever he acts in Contradiction to the Design of his Institution.
They should erect checks and balances to strengthen the limits theyve placed on royal power, as the British constitution, with its Compound of Monarchy, Aristocracy and Democracy, does better than any other, Livingston thought—and the framers of the American Constitution puzzled mightily over how to recreate that equipoise, desperately searching for a counterpart to aristocracy in a senate of the wise, good, and rich, until James Madison came up with an alternate mechanism in the balance of interest against interest. But even the best devised civil Constitution, is subject to Corruption and Decay, thro the Pride, Ambition, and Avarice of those in whose Care it is lodged, Livingston warned. And at a certain depth of oppression, Men of true Principles would rather return to a State of primitive Freedom, in which every Man has a Right to be his own Carver, than be the Slaves of the greatest Monarch, or even suffer under the most unlimited Democracy in the Universe. It takes a lot of tyranny to lead people to that desperate step, however; for let us still remember, that as the Magistrate is cloathed with Power for the Security of the Subject, the People cannot strip him of his Authority, without reducing themselves to their original Independency, the most joyless uncomfortable State in which human Nature can possibly exist.
It was hard enough for Tories to hear that royal authority rests on so flimsy a foundation as the consent of the people rather than on divine right, harder still for them to hear that the people can depose their king. From such Whig radicalism, they thought, it was one short step to republicanism, and they condemned the Reflector as subversively antimonarchist. It wasnt, but Livingston pulled no punches. A subjects Person and Property are guarded by Laws, which the Sovereign himself cannot infringe, he contended, and if the Magistrate exercises Force unauthorized by Law, the Violence he offers must be considered as the Violence of a private Person, which the People have an undoubted Right to repel. And repel it Britons have done, as recently as 1688, when they replaced James II with the great Deliverer of the Nation, the glorious King WILLIAM, of immortal Memory, or four decades before that, when Charles I paid his Head to show that a Crown can never rescue its iniquitous Possessor from that Punishment which his Crimes may justly demerit. It is the tyrant who is the criminal—not the rebel. But his Anglican critics, Livingston recalled, clearly believed that mankind was born with yokes and fetters; and that the original equality and independence of the species, was a chimera in politics, and blasphemy in religion. Echoing this idea decades later, Thomas Jefferson asserted the palpable truth that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately by the grace of God.
Where are the limits of royal power? Above all, for Livingston, the civil Power hath no Jurisdiction over the Sentiments or Opinions of the Subject, till such Opinions break out into Actions prejudicial to the Community, and then it is not the Opinion, but the Action that is the Object of the Punishment. That means that it is an Absurdity to suppose, that Government was ever designed to enslave the Consciences of Men! So provided he hurt no Man, every Subject has a Right to be protected in the Exercise of the Liberty of thinking about Religion, as he judges proper, as well as acting in Conformity thereto.
More broadly, because the Advancement of Learning depends on the free Exercise of Thought; it is . . . absurd to suppose that it should thrive under a Government that makes it Treason even for a Man to think. Livingston championed a characteristically American empiricism—that sort of Knowledge which is built upon the Observation of human Life and that tests our most darling Tenets . . . by the Rules of cool deliberate Reason. Such knowledge yields powerful practical results. Knowledge among a People makes them free, enterprizing and dauntless; but Ignorance enslaves, emasculates and depresses them, declared a Reflector article, probably by William Smith, Jr. The Prosperity, Happiness, Grandeur, and even the Strength of a People, have always been the Consequences of the Improvement and Cultivation of their Minds.
Livingston explained with much passion why political liberty is inseparable from free thought. In elections for representatives to the legislature or to municipal councils, many candidates are self-interested fakers, who try to hood-wink the voters rational Faculties—to enfeeble or bind them in the Fetters of Credulity . . . to obtain the great End aimd at, . . . to wit, an universal absolute Dominion over the Minds of Men. And too often, they succeed. Voters abandon their Reason, and are led Captive by their Passions. . . . They follow their Leaders with an implicit Faith, and like a Company of Dragoons, obey the Word of Command without Hesitation. . . . A disinterested Love for their Country, is succeeded by an intemperate Ardor; which naturally swells into a political Enthusiasm; and from that, easy is the Transition to perfect Frenzy. When thoughtful, reasoned examination in politics gives way to something like religious hysteria, the true Patriot will see the most abandoned, tho dignified Miscreant, receiving the Homage of the Multitude, while himself is either despised or forgotten. Thats why a free press, an extension of the freedom of thought, is an essential bulwark against the inevitable efforts of power to overflow its legitimate limits. The Patriot can, by this Means, diffuse his salutary Principles thro the Breasts of his Countrymen, . . . warn them against approaching Danger, unite them against the Arm of despotic Power, and perhaps . . . save the State from impending Destruction.
As for Livingstons own freedom of the press: on November 22, 1753, after 52 issues, the Reflectors printer suspended publication, without a word of warning. Lieutenant Governor James De Lancey had made clear hed get no more government printing jobs if he kept putting out the antiDe Lancey, anti-Anglican magazine. To be barbarously murdered is enough to make a spirit grumble, even in the Elysian fields, Livingston sighed.
But in 1760, Livingston began to lead the colonists in formulating the second great intellectual and moral justification for rebellion—that crown officials were trampling not only the Lockean social contract but also the most fundamental, time-honored protections of the British constitution. In New York, De Lanceys successor as lieutenant governor was trying to do just that. At 73, the self-important Cadwallader Colden had decided hed had it with New Yorks turbulent lawyers and all the chicanerie of the Law. To control them, he wanted judges of ability and skill whom he could fire, because he would give them commissions during his Majesties pleasure rather than commissions during good behavior—for life, that is. The death of James De Lancey in July 1760 provided the chance to name a new chief justice, and the death of George II three months later required colonial judges to get their commissions renewed, so Colden could change their terms. Livingston countered Coldens attack by persuading the Assembly, which the Livingston clan then controlled, to legislate lifetime judicial tenure, a bill the lieutenant governor vetoed.
In December 1761, London turned the local crisis into a colonies-wide one by decreeing that every colonial judge henceforward would receive his commission at the will of the crown. Livingston thundered in the press that this move subverted the colonists undoubted Right, of having the Judges of our Courts on a Constitutional Basis, and for the next 15 years, colonists loudly objected that the edict ended judicial independence and was dangerous to the liberty and property of the subject.
Once the executive had erased the separation of powers by appointing as judges men who depended on the smiles of the crown for their daily bread, as a South Carolinian put it, one last-ditch judicial-branch protection remained: the jury of ones peers. At a frighteningly fast pace, Colden and the London ministry began undermining this bastion of liberty in 1764, and Livingston led the opposition.
The assault started in April, with the Sugar Act, which let nonjury Admiralty Courts try smugglers and tax evaders. In October, Livingston, at the New York Assemblys request, wrote the legislatures protest to the House of Lords, complaining that the amazing powers of the Admiralty Courts denied colonists the protection of a jury trial that is one of the most essential Privileges of Englishmen.
Just then, Colden ratcheted up the threat. After a jury found a New Yorker named Cunningham guilty of stabbing a fellow townsman named Forsey, Forsey, who recovered, successfully sued his assailant for damages. Cunningham appealed the civil suit to the lieutenant governor in his capacity as appellate judge, asking him not just to look for legal errors but also to review the facts themselves. In November, Colden agreed and demanded the trial transcript. The chief justices response, written with the help of Livingston and his two Independent Reflector coadjutors, and published at Livingstons expense to stir up public opinion, dismissed Coldens order as repugnant to the Laws and a danger to the Liberty and safety of the Subject. After all, juries decide matters of fact; appellate judges can examine only matters of law. Once appeals judges can alter jury verdicts about the facts, juries dont count.
Colden then asked the Privy Council to hear Cunninghams appeal, and, while New Yorkers anxiously awaited Londons decision, Livingston began giving them a course in constitutionalism in The Sentinel, a newspaper column that ran for most of 1765. Colden aimed to deprive them of all the benefits of a trial by their peers, he charged. From such a system, the Star Chamber—the arbitrary court of the justly deposed Stuart tyranny—would be a redemption. He lauded the British constitution in terms that evoked a whole literature of Commonwealth and Whig historians, who amplified Sir Edward Cokes belief in the common law as the bedrock of English liberty and his famous description of Magna Carta as a reassertion of rights perpetually inherent, and time out of mind enjoyed, especially the right to trial by a jury of ones equals. It is a constitution matured by ages, Livingston wrote, repeatedly defended against lawless encroachments by oceans of blood, meliorated by the experience of centuries, alike salutary to prince and people, and guarded by the most awful sanctions. Is this constitution, which protects the citizen against lawless encroachments, now to be altered or abolished, by—the dash of a pen? Livingston demanded. Are the people to be treated as so many beasts of burden?
The response wasnt reassuring. In April, news of the odious Stamp Act reached America. In October, word came that the Privy Council, while refusing to consider Cunninghams appeal, had nevertheless directed Colden and his council to do so—a decision more detested than the S[tamp] A[ct], which has made the Colony mad already, one colonist wrote.
But by 1766, when the London government repealed the Stamp Act and reversed its Cunningham order, reaffirming that appeals courts could consider legal errors only, Livingston was a chastened man. He had known theoretically about the depravity of human nature—mans vast capacity for violence and aggression—but he had now had some up-close experiences of it that shocked him. Ever more threatening demonstrations against the Stamp Act in New York broke out on November 1, 1765, into full-scale urban rioting. A drunken mob hanged Colden in effigy, burned his treasured coach, and gleefully destroyed the richly furnished house of British major Thomas James. In the spring, tenant uprisings convulsed the huge Hudson Valley estates, and in June, 200 armed tenants on the Livingston familys great manor marched on the house of the lord of the manor, Judge Robert Livingston, and threatened to kill him unless he renewed their leases at lower rents. Some 40 loyal tenants fought them off. But now William Livingston had seen his own familys tenants turn Levellers, as one observer put it, and he had to wonder if the equality and rights he had so long championed really included the common run of the species, who seldom examine things with attention but take all upon Trust and can exert lawless power. Could that be?
He lost focus. By 1772, he craved peace and quiet. Hed been buying land on the edge of Elizabethtown, New Jersey, since 1760; by 1768, he had 115 acres and had begun planting a garden that blossomed into a passion for horticulture. He began building a house there in 1771, retired from his law practice, and moved into Liberty Hall in 1773, just as he was turning 50.
But he couldnt escape politics. As a delegate to the First Continental Congress in the fall of 1774, he hoped to patch up the colonists differences with England, much to the disgust of John Adams, who later recalled the Congresss various efforts at conciliation as childrens play at marbles or push-pin, instigated by the conservative privileged order led by John Dickinson, Billy, alias Governor Livingston, and his son-in-law, Mr. [John] Jay. For his part, Livingston felt shock at the designing Junto of implacable New Englanders, hell-bent on independence of Great Britain at all Events.
Even when he saw that independence was inevitable, he fussed about the timing, worried that the army was too green and that the French hadnt yet vowed support. Less than two weeks before the Declaration of Independence, his constituents recalled him, naming delegates raring to break with England. The rebuke stung, but on August 31, New Jersey elected him its governor, and, as British invaders drove him and his legislature across the state for years as they pursued and stalked Washingtons army, he helped keep the Patriots resistance alive, never doubting Americas right to renounce our Allegiance to a King, who in my Opinion had forfeited it, by his manifest Design to deprive us of our Liberty. Still serving as governor, he died at 66 on July 25, 1790, having lived long enough to sign the Constitution and see the government he helped frame get under way with George Washingtons inauguration a year before, on the balcony of the same building in which the drama of the Zenger trial had unfolded more than half a century earlier.