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


No exact record of Hamilton’s speeches in the Croswell case exists, but New York papers reported them quite fully and Justice James Kent kept ample notes. Hamilton began by emphasizing the importance of the subject and went on to examine what he called “the two Great Points”—the truth as evidence, and the jury’s right to examine Croswell’s intent. He insisted he was not arguing for “the pestilential Doctrine of an unchecked Press.” The best man on earth (Washington) had had his great character besmirched by such a press. No, he was contending for the right to publish “the truth, with good motives, though the censure light on government or individuals.” Above all he wanted to see “the check” on the press deposited not in a permanent body of magistrates, but in an “occasionally and fluctuating Body, the jury.” He pointed out that in the American system judges were not as independent from the executive and legislative branches as they were in England. All the more reason, therefore, to anchor freedom of the press in the right of trial by jury.

Hamilton ranged up and down English legal history and even dipped into Roman law and scriptural texts, to prove that the common law had always maintained these rights, until it was corrupted by the Star Chamber courts, which only proved his point—”a permanent body of men without the wholesome check of a jury grows absolute.” Then he turned and indirectly defended the Sedition Act, which despite its repressive intent had been directed against slander which could be proved to be “false.” He declared that he “gloried in” the fact that the United States had “by act” established this doctrine.

From here Hamilton soared into a long paean to the juror’s duties and rights. What if this were a “capital case” and the jury decided that it did not agree with the court’s interpretation of the law? Everyone knew that jurors were bound by their oaths, in such a case, to vote according to their convictions. Were he himself a juror, Hamilton declared, he would “die on the rack” before he would “immolate his convictions on the altar of power.”

Throughout the afternoon, Hamilton all but hypnotized his audience with his dazzling oratory. Kent noted that he was “sublimely eloquent.” The court adjourned at 5 P.M. , and the next morning Hamilton took up the argument again. Once more he worked his way through an impressive number of citations to bolster his argument, but he soon got to the political meat in his morning’s work, a digression that Judge Kent in his notes called “impassioned & most eloquent” on the danger to American liberty, not from provisional armies but from “ dependent Judges, from selected Juries, from stifling the Press & the voices of leaders & Patriots.”

“We ought to resist, resist, resist, till we hurl the Demagogues & Tyrants from their imaginary Thrones,” he cried. Never was there a libel case where the question of truth was more important. “It ought to be distinctly known,” he thundered, “whether Mr. Jefferson be guilty or not of so foul an act as the one charged.” This catapulted him into a eulogy of the dead Washington that in Kent’s opinion was “never surpassed—never equalled.”

Finally, he paid sarcastic tribute to the “other party” and especially to their “strange & unexpected compliments on the Freedom of the English nation.” But, he reiterated, a country is free only where the people have a representation in the government, and where they have a trial by jury. If America abandoned the principles of the common law, a faction in power could construe the Constitution to make “any political Tenet or any Indiscretion a Crime.” Sacrificing and crushing individuals “by the perverted Forms & mask of law” was the “most dangerous & destructive Tyranny.”

As the stocky figure of the man whom Talleyrand said had “made the fortune of his country” bowed before the black-robed justices and retired to his seat, James Kent jotted a final note—”I never heard him so great.” Thus inspired, Kent wrote a masterful opinion decreeing a new trial for Croswell. The power of his personality and his reasoning persuaded his fellow associate justices, Livingston and Thompson, to abandon their Jeffersonian principles and agree with him—at first. But Chief Justice Lewis, by now running hard for Governor, wrote a contrary opinion of his own. He also paid Justice Livingston a little visit, whereupon Livingston suddenly changed his mind. The court thus divided two and two, and the motion for a new trial was denied.

The prosecution could have moved immediately for a judgment against Croswell, but no such motion was made. The Jeffersonians were already badly clawed by their ride on this legal tiger, and they had no penchant for further gouges. Moreover, the New York senators and assemblymen, having heard Hamilton’s eloquence, had set to work on a truth-in-libel bill that was certain to pass; the Chief Justice was upholding a legal principle that was about to be officially invalidated. So the case was simply dropped. Its impact, however, was important: other states would soon follow New York’s lead, transforming Harry Croswell’s case from a cause célèbre into one of the bulwarks of our free press.