We return with a second installment of Fascinating Moments in Early U.S. History. See the first article here.

When two Hamiltons argued you shouldn’t be punished for saying true things (plus, you should have the right to a jury)

We must rewind a little for this one. In the Peter Zenger trial of 1735, before the creation of the United States, Philadelphia attorney Andrew Hamilton argued that there needed to be a higher bar in British law to mark written speech as “seditious libel” — it should not solely stem from whether a public official’s reputation was damaged. Yes, you could get in trouble just for this! Zenger, a publisher, was charged with seditious libel after criticizing the royal governor of New York, who felt his reputation was impugned.

Hamilton argued that it mattered whether the statement was true or false, what the author’s intent was. “The Words themselves must be libelous,” Hamilton said in court, “that is, false, scandalous, and seditious or else we are not guilty.” A guilty verdict, he continued, would imply that the words Zenger published were false, when they were in fact “notoriously known to be true.” After reaffirming one’s right to criticize the government, Hamilton said that “it is Truth alone which can excuse or justify any Man for complaining of a bad Administration” but “nothing ought to excuse a Man who raises a false Charge…” If the law treated these things the same, then it was the “bare Printing and Publishing a Paper” that was libelous, the mere release of “Informations.” People deserved the right to print true things, even if someone’s reputation took a hit.

Hamilton further argued that juries, not judges, should decide whether something was libelous, not just who published it, saying that “leaving it to the Judgment of the Court, whether the Words are libelous or not, in Effect renders Juries useless.” Yes, in this era the judges decided what was libelous in a given case and the juries merely decided who printed it! Hamilton questioned why juries were neutered for this particular crime. “I cannot see, why in our Case the Jury have not at least as good a Right to say, whether our News Papers are a Libel, or no Libel as another Jury has to say, whether killing of a Man is Murder or Manslaughter…” Decisionmaking power had to be taken from the judge and distributed to the people of the jury, for the sake of liberty and proper trials.

In the end, Hamilton essentially asked the jury to engage in jury nullification — even though a judge found Zenger’s published materials to be seditious libel, and Zenger confessed to publishing them, the jury found Zenger not guilty of publication and set him free.

But the law went unchanged, so everything had to happen again later, after the American founding. In the Harry Croswell case of 1804 in New York, the well-known Alexander Hamilton drew on Andrew Hamilton’s arguments. When a jury found Croswell, another printer and journalist, guilty of publishing what a judge ruled to be seditious libel against President Jefferson and others, Alexander Hamilton showed during appeal that what had been written was true. Allowing truth to be published without punishment, regardless of reputational harm to the targeted politicians, was the only “way to preserve liberty, and bring down a tyrannical faction. If this right was not permitted to exist in vigor and in exercise, good men would become silent; corruption and tyranny would go on, step by step…” Of course, Hamilton added, it would not do to have “a press wholly without control” — those who published falsities should still face consequences.

Hamilton insisted that juries decide these cases, for the same reasons one would support political democracy. It spread out power. A “fluctuating body…selected by lot” was safer for liberty and justice than a “permanent body of magistrates” who were part of the governmental system, would be influenced by the opinions of politicians, and, though this is at best only implied, may even have personal incentives to keep seditious libel laws more extreme. After all, one could write against a judge as easily as a president or governor. Judges held positions of power, just like those being attacked in the papers. “Men are not to be implicitly trusted, in elevated stations,” Hamilton said. “The experience of mankind teaches us, that persons have often arrived at power by means of flattery and hypocrisy; but instead of continuing humble lovers of the people, have changed into their most deadly persecutors.” This line may have referred simply to politicians, but came directly after comments on judges. It cleverly justifies both free criticism in the press and removing decisionmaking power from judges. The court might “make a libel of any writing whatsoever” if the judicial system continued to, pace Andrew Hamilton in the 1730s, “render nugatory the function of the jury.” 

Alexander Hamilton also praised the infamous Sedition Act of 1798, a federal seditious libel law that had expired in 1801. While it allowed Americans to be charged for defaming public officials or making rebellious, critical statements against the government in D.C., what Madison and the Republicans labeled a serious betrayal of the First Amendment but the courts ruled constitutional, it also vested power in juries and allowed the truth as a defense. If you could prove what you said was true, you could be declared not guilty. Therefore Hamilton called the act “honorable, a worthy and glorious effort in favor of public liberty.” The noble principles of this federal law should thus be applied to New York state law.

The appellate judges deciding the case deadlocked; Croswell’s conviction stood. But in 1805, the New York legislature modified state seditious libel laws, building in the Hamiltons’ reforms.

When Napoleon’s defeat indirectly caused a depression in the United States

The Panic of 1819, a financial crisis that caused a massive economic downturn in the United States, was caused by myriad factors. But the fall of Napoleon and the recovery of Europe played a role. After the Napoleonic wars, Europe’s agricultural production increased and American farms had a more difficult time selling their goods. Prices fell, along with profits. Therefore farmers struggled to repay loans to financial institutions, which had been extending credit far and wide during the earlier economic boom. When farmers could not pay their debts, the banks responded by turning to institutions that owed them debts: smaller banks. Banks demanded that other banks repay their loans, which banks could not do due to the lack of payment from individual borrowers. Banks were under considerable strain without individual repayments and with their own debts being called up — the national banking system, for instance, was still trying to pay off the Louisiana Purchase. Financial institutions began to go under, which continued the cascade. Fearful of losing their money if their bank was the next to go, Americans rushed to make withdraws, cleaning out their banks and causing them to fail. The Panic was a significant event in early nineteenth-century America, putting an end to the Era of Good Feelings — a time of economic and imperial growth — and plunging the country into an economic depression that lasted several years.

When states bypassed the free market and supercharged the economy

In the early nineteenth century, Democrats at the state level were interested in using government to create more prosperous economies — “state mercantilism.” This was in contrast to the federal level, where Democrats alongside Republicans were largely for free markets, free trade, and other anti-mercantilist policies. One aspect of state mercantilism was large construction projects that would increase and quicken the flow of goods within the United States, creating more profits for businesses, farmers, shipping companies, and so forth. When federal funding for such projects (such as those proposed by Henry Clay) failed, as a result of the Democratic Congress believing such things to be unconstitutional for the national government to do, the states moved forward on their own.

One major state investment was in railroads. Maryland, pushed by business interests in Baltimore, chartered the first American railroad firm, the Baltimore and Ohio Railroad Company. The B&O went west from Baltimore to the Ohio River and later to St. Louis. To get railroad projects off the ground, states would give land to railroad companies, at times seizing it from residents using eminent domain. The companies would then construct the lines on free land and sell off parts of the land back to Americans and other businesses. In addition to offering such sizable subsidies, states allowed and supported monopolies — one rail company would own the line being constructed across a state. The rail companies enjoyed no competition, set high rates, and raked in the revenue. They also sold company shares. With state aid, major railroads snaked from Baltimore, Philadelphia, and New York out across the U.S. and toward the Mississippi.

Canals were another major state investment. If connections could be made between water systems, goods could reach their destinations faster, generating higher company profits. So states funded the construction of canals, for instance Pennsylvania connected the Susquehanna River with the Ohio. The Erie Canal is possibly the most well-known and most successful project, with New York state, funded by New York business interests, linking the Mohawk River to Lake Erie. Goods could travel from the Atlantic Ocean to the Great Lakes; the Erie Canal created a major trade network between the Middle Region of the U.S. and the Old Northwest. As with railroads, canal projects hugely benefited the economies of American states, as well as that of the nation as a whole.

When the Shawnee leader castigated dependence, cultural corruption, and racial mixing

In the early nineteenth century, Shawnee leader Tenskwatawa, “The Prophet,” asserted that whites had corrupted Native American societies. American and European goods and technology had replaced traditional practices and eroded self-sufficiency. “Our men forgot how to hunt without noisy guns. Our women don’t want to make fire without steel…” Indigenous people, Tenskwatawa declared, had become dependent on the enemy: “now a People who never had to beg for anything must beg for everything!” Native Americans had once been “pure” and “strong.” Now they were weak and defiled. Whiskey had consumed them, and women had married white men to create “half-breeds.” It was not enough to protect indigenous land from further white encroachment (which is in fact blamed on cultural exchange). Tribes had to return to the “old ways,” their cultures purified and people made strong again. The Prophet demanded Native women abandon white husbands and their children to preserve racial homogeneity, a rejection of alcohol and food introduced or produced by whites, and a return to traditional clothing, hunting, tools, and so on (although guns were too useful for self-defense against whites, and should be kept). Commerce and interaction would cease entirely. Society could then be sacred and self-sufficient once more, as willed by the Creator.

When Andrew Jackson framed Indian Removal as a good thing for Native Americans, a humanitarian act

The Indian Removal Act of 1830 seized Native American land in existing states east of the Mississippi and forcibly moved indigenous people westward into American territories. It was proposed by President Andrew Jackson and passed by his party, the Democrats. Tribes that were rounded up and marched into what would become Oklahoma and Kansas (usually worse land than what they were leaving) included the Seminoles, Cherokee, Creek, Choctaw, Chickasaw, Sac, and Fox. All this represented a serious American betrayal of its promises and treaty commitments, and a major crime against humanity. Native peoples had been told they could remain in their lands if they engaged in agriculture and in other ways adapted to American society. The forced marches, which came after plenty of violence, were a humanitarian disaster. Do you recall the infamous “Trail of Tears”? Native Americans perished from the cold and from starvation. The Indian Removal Act is therefore remembered by most as a devastating and immoral policy. But at the time, it was lifted up as a wonderful thing for Native Americans. This was necessary to national identity and self-perception.

The framing of these events is different today, because there is a stronger need to justify oppression when it’s taking place; two centuries later, the narrative can shift a bit. When you set about to crush someone, you justify what you are doing as morally right. So Jackson, in his December 6, 1830 speech to Congress, declared that removal “will separate the Indians from immediate contact with settlements of whites; free them from the power of the States; enable them to pursue happiness in their own way and under their own rude institutions; will retard the progress of decay, which is lessening their numbers, and perhaps” even help them become “civilized.” Expulsion from their homes was the best thing for Native Americans. African Americans received similar ideological treatment in the United States: slavery was good for blacks (who were too stupid and uncivilized to care for themselves), giving them shelter, food, clothing, Christianity, and so on. Oppressors have to rationalize, to frame their deeds as humanitarian, not destructive. The descendants of oppressors, looking at the past, judge things slightly differently. While you can still find some who try to stress the victim benefits of slavery or Indian Removal to protect the image and moral character of the United States, most Americans would probably call these things wrong, tragic, and so on. At the least, they were bad for Native Americans and others. That is a different framing than Jackson’s. 

However, the full modern framing is still problematic and has not left behind the nationalistic ideology of the 1820s and earlier. Americans may reflexively call the mistreatment of native nations wrong or harmful, but there are two large caveats to this, which impede any further distancing from Jackson. First, the wrongs of Indian Removal, slavery, and so on are likely to be considered “mistakes.” The ideological position remains that the United States — its presidents, government, and people — is fundamentally good. In the past mistakes were made, but America always had good intentions (highly Jacksonian). This is rather different than acknowledging the self-interest, greed, conscious betrayal, racism, cruelty, violence, and so on necessary to devise and carry out Indian Removal. The idea that the United States might have had bad intentions is unthinkable for many people. Messing up while still being inherently good is a more palatable, patriotic image than committing premeditated crimes as a result of being inherently flawed, and many cling to it. This may be changing as leftwing sentiments and criticism grow more popular, but it holds true.

The second asterisk is that while Indian Removal would likely be labeled wrong or hurtful by most Americans today, it may more have the flavor of a “necessary evil.” It is very difficult for citizens to imagine a United States that doesn’t look precisely as it does today. The U.S. was meant to have its present borders and power — Manifest Destiny is still very much alive. The Trail of Tears and indigenous expulsion may have been bad, but they had to happen for America to fully possess the lands east of the Mississippi. If explorers and colonists hadn’t beat back native populations, the U.S. may not have existed; if Americans hadn’t done the same, the U.S. would not have fulfilled its destiny. History had to unfold as it did, with all its awfulness, so the U.S. could grow larger, more powerful, and be the greatest nation in the world. It would be highly interesting to conduct a poll, inquiring whether one would prefer a smaller, less influential, less powerful United States that hadn’t conducted Indian Removal, slavery, or other acts…or prefer reality, to have everything play out as it did to ensure American continental and global dominance. Many would choose the latter, making one question how wrong such things are actually judged to be, and highlighting who and what really matters.

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