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


In the meantime, both sides regrouped for the climax of the battle. The Federalists sought out their chief intellect, Alexander Hamilton. As early as June 23, 1803, they had persuaded General Philip Schuyler, Hamilton’s father-in-law, to write the brilliant former Secretary of the Treasury for help. (In a style that typified the primeval Federalist, the patrician Schuyler described the case as “a libel against that Jefferson, who disgraces not only the place he fills but produces immorality by his pernicious example.”) There is some evidence that Hamilton advised Croswell’s counsel before the circuit court trial. Now, with the proceedings at stage center, he agreed to appear in person, gratis.

Down in Virginia during the same months, fate put a dent in Croswell’s cause. In the midst of a drunken spree his potential star witness, Callender, fell out of a boat to find a final resting place, as one writer put it, “in congenial mud” at the bottom of the James River. But he left behind him his published works, including letters Jefferson had written expressing his approval of The Prospect Before Us, so his dirty work was very much alive when the supreme court convened February 13, 1804, to hear the final round of People v. Croswell.

For Hamilton the case represented an opportunity for revenge against his great rival, who was riding high on the crest of political triumph. Some of it Jefferson owed to Hamilton, whose unwise attempt to dump John Adams as the Federalist candidate in 1800 had done much to hand Jefferson the election. Aaron Burr had in the same year destroyed Hamilton’s political power base in New York, manipulating the votes of the Tammany Society to elect a Jeffersonian governor, George Clinton. Discredited with his own party, Hamilton had retreated to his law practice, where he had already established himself by his sheer brilliance as a thinker and speaker.

More than revenge may have stirred Hamilton in the Croswell case. This strange, often contradictory giant, who was considered by Talleyrand to be one of the three greatest men of the age along with Napoleon and Pitt, had a deep, instinctive love of liberty which was never extinguished by his vision of a compact organic society, organized and run by a natural aristocracy at the top. Now free from the inhibitions and necessities of party intrigue, which had prompted him to approve the Sedition Act, he flung himself wholeheartedly into Croswell’s defense.

He brought with him from New York an old friend and staunch Federalist, Richard Harrison, who had shared Hamilton’s mind and heart since their days together as Washington’s aides-de-camp. With these two lawyers of the first rank was young William Van Ness, to provide continuity from the earlier court battles.

The opposition, meanwhile, had made a notable change. On February 3, 1804, Attorney General Ambrose Spencer had been nominated to the supreme court, but he properly abstained from sitting on the case, and summoned one of his political followers, George Gaines, as his associate before the bar. Spencer’s abstention left a four-man court: Chief Justice Lewis, who had already proved himself a devout Jeffersonian; Brockholst Livingston, who, true to his family reputation, was of a similar political faith; a third Jeffersonian, Smith Thompson; and a lone Federalist, James Kent.

But in force of personality and weight of learning, Kent more than equalled the three Jeffersonian justices. “The American Blackstone,” as he was later called for his Commentaries on American Law, the most influential legal volumes of the nineteenth century, had been converted to Federalism by listening to Alexander Hamilton’s magnificent speeches in favor of the Constitution during the New York state ratifying convention in 1789, and by the still more cogent reasoning of the Federalist Papers. It was from a friendship with Hamilton begun in those days that he had acquired his conviction that the common-law tradition was essential to the nation’s future. Not all lawyers agreed with this in 1804. In most states, the best legal minds were debating whether they should not scrap the common law and create a whole new code, as the French had done under Napoleon.

The problems—and the advantages—of the common law were all too evident in Croswell’s case. All of the first day of the trial and most of the second were consumed by excursions far back into the mazes of English common law, with both sides endeavoring to show that the legal tradition of an earlier and supposedly purer age upheld their view of the central question: whether the truth could be admitted as evidence in a case of seditious libel. It was something of a stand-off; but it did clear away legal debris and effectively set the stage for Alexander Hamilton.

By now the hearing was absorbing the attention of both the judicial and legislative wings of New York’s state government. According to Charles Holt’s Bee, almost the entire state senate and assembly poured into the supreme court chambers to hear the climax of the debate. They were there for more than the excitement of seeing Hamilton in action. Already a legislator had submitted a bill that would permit the truth to be heard in libel cases. The British Parliament had passed a similar bill in 1792.