restricted access 6. Litigation, Liberty, and the Law: Hamilton’s Common Law Rights Strategy
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174 Over the past five chapters, I have demonstrated how Alexander Hamilton created substantive American jurisprudence, influenced and guided by principles of English law. Hamilton used the law as an instrument to achieve his preferred statecraft, and by defining his policies through law, Hamilton legitimized his own programs. Still, one of Hamilton’s career-long legal pursuits has been absent from this study thus far; in addition to the constitutional, fiscal , and commercial law influenced by the first treasury secretary, Hamilton also demonstrated a consistent, indefatigable rights consciousness. His critics have long ignored Hamilton’s advocacy for liberty under the law by alleging that he was an antidemocratic closet monarchist. Yet Hamilton dedicated his legal practice to crafting strategies based in common law that preserved and sought to expand English liberties in the American courts. Throughout his career, Alexander Hamilton worked to ensure that crucial civil and political rights remained robust for the inhabitants of the new republic. Hamilton’s legacy has been tarnished by charges levied against him by his contemporary political opponents, as well as nearly two centuries of censure from historians. Critics accused him of making unholy alliances with money men and the propertied class, favoring the establishment of an American monarchy, and being contemptuously elitist, all the while harboring a deep suspicion of democracy.1 These charges mischaracterize Hamilton’s genuine Litigation, Liberty, and the Law: Hamilton’s Common Law Rights Strategy six x Litigation, Liberty, and the Law 175 concern for the fate of America’s experiment in republican government and his formulation of American political science. Hamilton was not a villainous monarchist; nor did he have complete disdain for ordinary Americans. On the contrary, as we will see, Hamilton built his fledgling legal practice by defending a broad spectrum of common and powerful clients alike, including persecuted rich, poor, and widowed Loyalists in the aftermath of the Revolutionary War. Throughout his career, Hamilton also represented feuding New York landowners, argued on behalf of seafaring traders suing insurance firms for claims on damaged or lost property, and successfully defended New York City’s notorious carpenter, Levi Weeks, in his 1800 murder trial.2 Hamilton ended his career by championing a robust conception of the freedom of the press by representing a convicted partisan printer, Harry Croswell, who dared to criticize the Jefferson Republicans then in power. Despite these efforts, American iconography and historiography insist that other Founders like Thomas Jefferson—but never Hamilton—wear the mantle of liberty.3 On closer inspection of his public rhetoric, and most importantly his legal practice, however, Alexander Hamilton rivals even Jefferson as a rights-conscious statesman. We should not be surprised that Hamilton paid close attention to the preservation of American liberty. After all, like other radical American Whigs, a college-age Hamilton publicly spoke out against King George III and Parliament’s tyranny before the outbreak of hostilities. During the war, the captain turned lieutenant colonel fought for American independence both in battle and at General Washington’s side at headquarters. But most importantly, after the war, Hamilton trained as a common lawyer, just as Jefferson, John Adams, James Madison, James Wilson, John Marshall, and Andrew Jackson did. It is from this common law instruction that Alexander Hamilton developed a successful legal strategy to use to enforce his rights consciousness in court. Hamilton became a staunch advocate of due process and freedom of the press liberties that protected Americans from governmental overreach. The key to Hamilton’s rights strategy was the distinction he made between a “strict” versus an “extensive” conception of the common law. Under their new constitutions, the states received, in various forms, English common law, but these reception provisions created ambiguity and legal uncertainty.4 Determining what parts of the common law applied in state jurisprudence proved to be a tricky endeavor, as seemingly basic questions uncovered uncertain and complicated answers. Under New York’s reception clause, for example, what authorities provided definitive evidence of the 176 chapter six common law?5 Only the central English courts at Westminster? What about “ancient” English statutes, or Parliament, or—after the adoption of the federal Constitution—Congress? While serving in the New York assembly in 1787, Hamilton identified the key ambiguity in New York’s reception clause and asked aloud, “What is meant in the constitution, by this phrase ‘the common law’?”6 He then went on to describe the important common law distinction animating his legal and constitutional thought: These...