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

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Almost immediately Spencer began to backwater. He first agreed to postpone trial of the indictment based on the Wasp ’s claim that Jefferson had violated the Constitution. But he insisted on taking up the second indictment, the charge in regard to Callender, the next day.

Croswell’s attorneys appeared in court the next evening and entered a formal affidavit stating that the Federalists intended and expected to prove the truth of the facts as stated in the Wasp in regard to Callender and President Jefferson. Like a shrewd fencer, the Attorney General returned an unexpected riposte. He wanted Croswell bound with $5,000 bail on each indictment “to keep the peace and be of good behavior.” Croswell’s attorneys exploded in a chorus of objections. Not only was such a demand illegal and a violation of Croswell’s liberty as a free citizen of the United States—it was indirectly an attack upon the freedom of the press.

Elisha Williams and his confreres spent most of the next day debating this motion with Spencer. Again the political deficiencies of the Jeffersonian case were evident. Spencer, representative of the party that claimed to be the repository of the true spirit of the American Revolution, spent most of his time quoting cases out of English common law. The principal citation was a statute from the reign of Edward III which granted justices power to bind over “such as be not of good fame” to be of good behavior. Williams came back with a rain of English citations, including the still politically potent name of John Wilkes. When this erratic friend of the American Revolution had been arrested for libel in 1763 and the King’s attorney attempted to have him bound, the Chief Justice of England dismissed the motion, “whereupon there was a loud huzzah in Westminster Hall.”

The Attorney General rose with a rebuttal that the reporter for the Balance grudgingly admitted was, “with the exception of a few indecent expressions … one of Mr. Spencer’s most ingenious speeches.” But in spite of his ingenuity, Spencer’s motion to bind Croswell was denied. The Republican judges could not bring themselves to gag Croswell quite so flagrantly.

Six months of legal jousting followed. The Croswell attorneys fought to get the entire case transferred to the circuit court, under a New York supreme court justice, and Spencer struggled to retain it in the lower court, where he would have a local Jeffersonian bench and jury. In the interim, however, the Federalists scored a resounding electoral victory in Hudson and duplicated it in five other Columbia County towns.

The legal battle reached a climax on June 14, 1803, when Spencer and the Croswell legal trio once more clashed at Claverack. After a long and acrimonious debate, Spencer gave way and agreed that both indictments could be tried before a supreme court justice on the next circuit through the county. It soon became evident that Spencer had a good reason for accommodating his opponents. Chief Justice Morgan Lewis appeared as the circuit judge. A thorough Jeffersonian, Lewis interrupted Croswell’s lawyers as they once more attempted to request a delay in order to obtain evidence from James Callender in Virginia. Such evidence, Lewis declared, concerned the truth of the charge for which the defendant was indicted and in his opinion the law was “settled, that the truth could not be given in evidence to the jury as a justification.”

Croswell’s lawyers argued manfully against this prejudgment. They maintained that Croswell’s case involved a public libel, which made the truth of vital consideration. On that ground, they requested a delay until a commission appointed by the court could examine Callender. (At this point in his career, Callender was on his way to becoming a hopeless drunkard, and Croswell’s lawyers probably felt that he would be a sorry witness at best; hence the shift to a commission to examine him at a distance.)

Judge Lewis was unmoved by the Federalist eloquence. When the Attorney General rose to reply, the Chief Justice told him it was unnecessary. He said he was “astonished” at the application, and repeated his view that “the law is settled, that the truth of the matter published cannot be given in evidence.” Then, suggesting the nervous state of the Jeffersonian position, his Honor hastened to add, “I very much regret that the law is not otherwise; but as I am to declare what the law is, I cannot on this ground put off the trial.”

The outcome of the trial was easily predictable. The only thing that really mattered was the Chief Justice’s charge to the jury, in which he instructed them that they had but one thing to decide: whether Harry Croswell did in fact publish the scurrilous statements in the Wasp. It was left to the court to weigh matters of truth or falsehood, and also of malice, in determining the sentence. The jury retired at “sunsetting” with nothing to debate. Nevertheless, they remained out the whole night, and not until eight o’clock the next morning did they come to the bar with a verdict of guilty.

Croswell’s attorneys immediately moved for a new trial, arguing that Lewis had misdirected the jury, and reiterating that the truth should be given in evidence. The motion was granted and the case was carried over first to the November term of the New York supreme court, and finally to the January, 1804, term.