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Verdicts Of History IV: “a Scandalous, Malicious, And Seditious Libel”
Is it libel to say that the President of the United States tried to seduce his neighbor’s wife—even if he did? Thomas Jefferson tried to gag the venomous editor of upstate New York’s Wasp; Alexander Hamilton argued brilliantly in defense of journalistic candor.
December 1967 | Volume 19, Issue 1
Meanwhile, Croswell broadened his attacks on Jefferson with other choice tidbits from Callender’s pen. He quoted the erstwhile Jeffersonian as declaring that “Mr. Jefferson has for years past while his wife was living and does now since she is dead, keep a woolly headed concubine by the name of Sally—that by her he had had several children, and that one by the name of Tom has since his father’s election taken upon himself many airs of importance, and boasted his extraction from a President.” To this, Croswell added another noxious tale: how Jefferson, before his marriage, attempted to seduce Mrs. John Walker, the wife of a close friend.
Other extremist Federalist papers were printing the same stories. Publicly, Jefferson always maintained a philosopher’s stance toward the abuse he was getting. In 1803 he wrote to a European friend, “[It] is so difficult to draw a line of separation between the abuse and the wholesome use of the press, that as yet we have found it better to trust the public judgment, rather than the magistrate, with the discrimination between truth and falsehood.” But his actions in 1803 belied that view. One reason may have been that two out of the three stories the Federalists were spreading were uncomfortably close to the truth. The slave concubine would seem to be sheer slander, but three years later Jefferson admitted privately that the Walker story was essentially accurate; and even his most benevolent biographers find it hard to explain away his relations with Callender.
By private letter and personal messenger, in his wonted style, Jefferson passed the word to his state leaders. “[The] press ought to be restored to its credibility if possible,” he told Thomas McKean, the governor of Pennsylvania. ” … I have therefore long thought that a few prosecutions of the most prominent offenders would have a wholesome effect … Not a general prosecution, for that would look like persecution: but a selected one.” For the already infuriated Jeffersonians in states where Federalists were most impudent, this was what they had been waiting for. Joseph Dennie, the arch-Federalist editor of the Philadelphia Port Folio, was promptly charged with seditious libel against the state and the United States. In New York, the selected victim was Harry Croswell.
Several historians have wondered why this obscure editor was singled out rather than the prestigious William Coleman of the Evening Post, who had also reprinted Callender’s anti-Jefferson blasts. But even a rudimentary sketch of New York politics in 1802 makes it easy to see why Croswell was Attorney General Ambrose Spencer’s number-one choice. There is nothing like smiting the enemy when he has had the effrontery to invade one of your most powerful bastions. To underscore this fact, Spencer himself appeared to prosecute the case, with the local district attorney, Ebenezer Foote, serving merely as an assistant.
Spencer was an ex-Federalist who had “gone over” to the other party, and seeing this turncoat undoubtedly made Harry Croswell seethe when he was brought on a bench warrant before three local judges at the Court of General Sessions sitting at Claverack, then the Columbia County seat. The fiery young editor was indicted for libel on two counts, which were duly read to him. One was based on the fourth issue of the Wasp, August 12, 1802, in which he had listed “a few ‘squally’ facts”—five executive acts by President Jefferson which, Croswell maintained, grossly violated the federal Constitution. The second and more serious charge was based on a paragraph that had appeared in the Wasp on September 9, 1802:
Holt says, the burden of the Federal song is, that Mr. Jefferson paid Callender for writing against the late administration. This is wholly false. The charge is explicitly this:—Jefferson paid Callender for calling Washington a traitor, a robber, and a perjurer—. For calling Adams, a hoary headed incendiary; and for most grossly slandering the private characters of men, who, he well knew were virtuous. These charges, not a democratic editor has yet dared, or ever will dare to meet in an open manly discussion.
Croswell was not deserted by his Federalist friends. Standing beside him at the bar were Elisha Williams, Jacob Rutsen Van Rensselaer, and William W. Van Ness. Williams was already established as a legal giant. Oliver Wendell Holmes, in The Poet at the Breakfast-Table, wrote that he once asked a distinguished New Yorker, “Who on the whole seems the most considerable person you ever met?” Quite to Holmes’s bemusement, the man replied without hesitation, “Elisha Williams.” Van Rensselaer was a vigorous descendant of the great patroon family that had once owned 62,000 acres of land on the east side of the Hudson River, including the entire town of Claverack. Van Ness at twenty-seven was considered the most brilliant young attorney in Columbia County. His folksy courtroom manner was typical of the younger Federalists’ new style. He often interrupted his speeches to ask the foreman of the jury for a chew of tobacco.