In 1757, a full generation before the American Revolution, British soldiers in Albany, New York—the main military staging area for the French and Indian War—demanded that the local sheriff open up his jail to detain a town farmer accused of harassing nearby troops.
The sheriff, a physically unimpressive shoemaker in his early 30s named Abraham Yates, refused on the grounds that they had no legal writ. Yates complained about the marauding ways of the occupying forces to John Campbell, Fourth Earl of Loudoun, who had recently been installed as England’s commander in chief for all of North America. After Lord Loudoun imperiously retorted that there was a war on, Yates filed a complaint against the commander to New York’s lieutenant governor, James De Lancey. That’s when things got spicy.
As recounted by the historian Russell Shorto in New York Archives magazine: “Loudoun approached Yates on the street and the two had a public confrontation. Loudoun said he had seen the letter Yates sent to the lieutenant governor and that it was filled with lies. Yates replied that every sentence could be proved. Loudoun had previously used the local jail for military purposes; he now warned Yates against discharging a military prisoner he had confined there. ‘Sir,’ Yates replied, ‘I have already discharged him.’ ‘By whose order?’ Loudoun demanded to know. ‘By the King’s writ,’ Yates responded. Loudoun then ordered the sheriff to stay daily within his sight—’and if you do not do I shall send for you with a file of muskets, with their bayonets fixed.’ The Albanians who were witness to the exchange must have thought that would be the end of it. Instead, the not terribly threatening-looking sheriff replied, ‘My Lord, I have no time to wait upon you. I have other business to attend.’ Loudoun, barely containing his fury, vowed that for Yates’s insolence he would turn his house into a hospital for wounded soldiers and the local church into an artillery storehouse. ‘I don’t know what you will do, My Lord,’ Yates replied coolly, ‘but I know you have no right to do it.'”
Yates would go on to become a 13-term New York state senator, mayor of Albany, and influential Anti-Federalist champion of the Bill of Rights, so it’s not hard to trace the lineage from his youthful insubordination to the First and Third and 10th Amendments. But where did he get those brass balls in the first place?
There are two distinctly American traits that predated and supercharged the Revolution, raging on for the 250 years since: We don’t like being told what to do by our supposed betters, and we really don’t like being told to shut up.
American freedom of speech was arguably superior to British freedom of speech as early as 1735. That’s when the celebrated lawyer Andrew Hamilton famously convinced a New York jury to acquit publisher John Peter Zenger of The New-York Weekly Journal—the country’s first opposition newspaper—of seditious libel, even though, by Hamilton’s own admission, Zenger had violated the letter of the law with the Journal‘s withering criticism of New York’s corrupt colonial governor, William Cosby. (The truth of a claim, according to the operable 1606 case law, was no defense against libel. Indeed, veracity was often seen as making the injury worse.)
Hamilton’s successful gambit of encouraging what amounted to jury nullification did not create any legal precedent. But in practice, colonial newspapers, pamphlets, and broadsides operated as if there were few if any consequences for throwing barbs at all the king’s men, particularly after the Stamp Act of 1765 began boiling patriot blood. “From the Zenger case until Independence,” wrote Stephen D. Solomon in the 2016 book Revolutionary Dissent, “common-law cases against dissidents all but disappeared. There appears to have been only one indictment brought for seditious libel.”
Americans, long before the Revolutionary War, consciously cultivated a culture of defiant free speech. The New-York Weekly Journal, when not lampooning Gov. Cosby as a baboon, regularly republished the galvanizing Cato’s Letters series of essays by radical British Whigs John Trenchard and Thomas Gordon arguing for freedom of the press, active disobedience, and government by the people. Zenger followed his legal victory with a bestselling book about the case. One of Zenger’s lawyers, James Alexander, mentored the notable legal thinker William Livingston, who in turn worked with Abraham Yates.
But the defiance gene goes back much further. The pilgrims and Puritans of New England were religious dissidents, yes, and on some level, anyone crazy enough to brave a transatlantic crossing in the 17th century only to confront disease and violence and potential starvation in the New World had to have a little nonconformity in their cockles.
Through those trials emerged a stock American character—resourceful, self-made, unfazed by established authority. Puritan minister Roger Williams criticizing the king, evading arrest, then tromping 50 miles through the snow to found Rhode Island and the western world’s first separation of church and state. Antinomian schismatic Anne Hutchinson defending herself brilliantly (if unsuccessfully) against banishment-level charges of slandering the clergy. John Smith fast-talking his way out of execution, imprisonment, and multiple other brushes with death to become the single most important figure in the settling of Jamestown.
The habits of freedom render impotent the designs of authoritarians. Periodic spasms of government censoriousness—the Alien and Sedition Acts of 1798, the Sedition Act of 1918, COVID-era jawboning of social media companies, serial Trump-era crackdowns on disfavored individuals and media companies—eventually run afoul not just of the Supreme Court’s First Amendment jurisprudence (especially strong these days), but also of practiced citizen insistence on speaking freely.
“Political societies are not made by their laws,” Alexis de Tocqueville famously observed about America, “but are prepared in advance by the sentiments, beliefs, ideas, the habits of the hearts and minds of the men who are part of them.” We will occasionally steer the ship of state onto rocky shoals. But we will never take orders, and never, ever shut up.
