Verdicts Of History IV: “a Scandalous, Malicious, And Seditious Libel”

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The tone of the trial was set from the very first defense motion. Croswell’s counsel demanded copies of the indictments before entering a plea. The Attorney General objected and was sustained by the all-Republican bench, and Croswell pleaded not guilty. (In his Wasp memoir Croswell says that the JeffersonCallender passage, which was to become the heart of the case, had actually been written by Thomas Grosvenor, but he declined to implicate this young man and took his chances before the court. This required courage. A sojourn in a crude county jail was no laughing matter in 1803.) The defense then requested a postponement until the next session of the circuit court. They argued that on an issue as legally complex as the law of libel, a state supreme court justice should sit. The Attorney General objected; he was promptly upheld.

The defense now made a most significant motion—a request for postponement in order to bring from Virginia James Callender himself, who would testify to the truth of the libel. Attorney General Spencer sprang to his feet, quivering like a wire. Under no circumstances would he tolerate such a procedure. They were trying this case according to the law of New York state. The truth or falsehood of the libel was irrelevant! All he had to prove to the twelve good men and true in the jury box was the question of fact. Did Harry Croswell publish these libelous statements against the President of the United States?

Thus in the small country courtroom before three farmer justices of the peace, the political-legal giants of the Empire State drew historic—and ironic—battle lines. Here was the Jeffersonian attorney general, backed by Jeffersonian justices, vociferously upholding the Royalist doctrine that had been brought to bear against John Peter Zenger at his famous trial in 1735.

But the Zenger case is by no means the landmark in the history of press freedom that has sometimes been supposed. The German printer’s acquittal on charges of seditious libel against Governor William Cosby changed very little. The jury had simply disregarded the judge’s admonition to disregard the question of the truth of the alleged libel, and the law remained as it was. Subsequent cases in New York and other colonies made it clear that American legislators and most voters were ready to support freedom of the press only when the press printed what they approved.

Essentially, in fact, what colonial and post-Revolutionary liberals meant by freedom of the press was a press free from licensing and prior censorship. When the framers wrote in the First Amendment, “Congress shall make no law … abridging the freedom of speech, or of the press,” the key word to them was “Congress.” The reason Jefferson had considered the Sedition Act null was not because it had muzzled his party’s press, but because he was convinced that Congress, under the Constitution, had no power to enact such legislation. Writing to Abigail Adams in 1804, Jefferson would declare, “While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right, to do so.”

Thus the Jeffersonians were not as inconsistent as they seemed to be in their stand on Harry Croswell. They rooted their opinion in the common-law tradition of England, best summed up by the great commentator Sir William Blackstone:

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity.

But legal principles, even legal traditions, while they may be revered by lawyers and utilized in emergencies like the one in which Ambrose Spencer found himself, are not so sacred to the man in the street, and Croswell’s trial soon made it clear that the Jeffersonians were riding a tiger of their own creation. The moment Spencer declared that “the truth cannot be given in evidence,” Elisha Williams unlimbered his heaviest rhetorical artillery. Hitherto, he pointed out, it had been the first article in Spencer’s political creed that the people possessed the sovereignty and that governors and Presidents were their servants; and that whenever the people should write on their ballots, “Turn them out. Turn them out,” those whom they had rejected must fall. But how could this power, this sovereignty, be correctly exercised, how could the people “pluck down the vicious demagogue and raise and support the virtuous patriot unless their variant conduct could he faithfully represented? And what printer would dare to represent such conduct if the truth of the fact so represented could not shield him from destruction?”