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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
“At a Court of general Sessions of the Peace, holden at Claverack, in and for the county of Columbia, it is presented that Harry Croswell, late of the city of Hudson, in the county of Columbia aforesaid, Printer, being a malicious and seditious man, and of a depraved mind and wicked and diabolical disposition, and also deceitfully, wickedly and maliciously devising, contriving and intending, Thomas Jefferson, Esquire, President of the United States of America, to detract from, scandalize, traduce, and vilify, and to represent him, the said Thomas Jefferson, as unworthy of the confidence, respect and attachment of the People of the said United States, … and wickedly and seditiously to disturb the Peace and tranquility as well of the People of the State of New York as of the United States; … the said Harry Croswell did on the ninth day of September, in the year of our Lord 1802, with force and arms, at the said city of Hudson, in the said county of Columbia, wickedly, maliciously and seditiously print and publish and cause and procure to be printed and published, a certain scandalous, malicious and seditious libel, in a certain paper or publication entitled ‘The Wasp.’ …”
All history is a mingling of the great and small, of kings losing kingdoms for want of a horseshoe nail, of presidents assassinated because a guard needed a smoke. But seldom has there been a stranger concatenation of the petty and the magnificent, the comic and the tragic, the trivial and the profound, than in the case of the People v. Croswell, in 1803. By an odd blend of good and bad luck, an obscure twenty-four-year-old printer wrote himself into the Dictionary of American Biography, established the libel law on which contemporary press freedom still rests, jarred the political security of President Thomas Jefferson, and indirectly helped to involve Alexander Hamilton in his fatal duel with Aaron Burr.
In 1803 the infant American Republic was running a high political fever. The ferocity of the verbal warfare raging between the Federalists, the party created by Alexander Hamilton, and the Democratic-Republicans, led by President Jefferson, has rarely been matched in American politics, even by the diatribes of today’s New Left and Ultra Right.
The first fusillades had been fired during Washington’s Presidency. The Jeffersonians, with not a little help from the Sage of Monticello himself, had set up journalists such as Philip Freneau and Benjamin Franklin Bache with one mission, to deflate and discredit an administration that was, in Jefferson’s view, “galloping fast into monarchy.” They soon had the Father of His Country in a state of near apoplexy. “That rascal Freneau,” as Washington called him, insisted on sending his scurrilous National Gazette, published in Philadelphia, to the President’s house even after he had cancelled his subscription. Freneau spent most of his abuse on Hamilton. Baclic preferred Washington as a target, calling him “treacherous,” “mischievous,” “inefficient,” and sneering at his “farce of disinterestedness” and his “stately joumeyings through the American continent in search of personal incense.”
These verbal guerrillas soon had imitators. Among the more savage was William Duane, Bache’s successor as editor of the Philadelphia Aurora. Washington, he wrote, had “discharged the loathings of a sick mind.” Even this was topped by an English newcomer, James T. Callender. In the Richmond Examiner he declared that “Mr. Washington has been twice a traitor.”
The Federalists, the upholders of upper-class dignity, labored under a difficult handicap in such a war. They soon became afraid, in Washington’s words, that “there seems to be no bounds to … attempts to destroy all confidence, that the People might, and … ought to have, in their government; thereby dissolving it, and producing a disunion of the States.” The Alien and Sedition Acts of 1798 were an expression of this fear. Passed by a Federalist Congress with Washington’s public approval, the Alien Act gave President John Adams the power to deport any foreigners he deemed dangerous to public peace. The Sedition Act empowered the federal judiciary to punish anyone convicted of false or malicious writing against the nation, the President, or Congress with a fine of not more than $2,000 and imprisonment for not more than two years.
Federalist judges immediately went to work and soon had indictments against Bache, Duane, Callender, and a dozen other Democratic-Republican editors. The Jeffersonians responded at the state level with the Kentucky and Virginia resolutions of 1798, which declared the Alien and Sedition Acts altogether void and introduced the doctrine of nullification into American constitutional thinking—a seed that would bear ominous fruit in a later era. Up and down the land, Jeffersonian editors bellowed mightily that the Federalists were attempting to erase the First Amendment and destroy the free press.
The Jeffersonian counterattack was beautifully executed: the Federalist judges retreated in disarray and all but abandoned the unpopular prosecutions alter a mere ten convictions. The nation roared into the election of 1800 with both sides strenuously exercising their right of free speech. But except for a few slugging editors who sneered at “Massa Jefferson” the slave owner, most of the Federalist propaganda came from pulpits, where clergymen pictured the election of the pro-French and “atheistic” Jefferson as the beginning of a Jacobinical reign of terror against religion. In the print shops the Jeffersonians had the bigger, more vituperative guns. James Callender’s pamphlet, The Prospect Before Us, slandered Washington and Adams with such recklessness that it achieved an unenviable literary fame. Although Federalist papers theoretically outnumbered the Jeffersonians 103 to 64, most of them maintained a tepid semineutrality that permitted the Democratic-Republicans to run away with public opinion and the election. Defeated John Adams wrote mournfully, “If we had been blessed with common sense, we should not have been overthrown by Philip Freneau, Duane, Callender. … A group of foreign liars have discomfited the education, the talents, the virtues, and the property of the country.”
But the Federalists were down, not out. Older leaders like John Jay might retire to their estates in dismay, but there were numerous young, vigorous Federalists in the prime of middle life, such as Hamilton and Fisher Ames of Massachusetts, who did not feel it was time for them to abandon politics. They decided Federalism was not dead, it had just been misrepresented, distorted, and smeared without rebuttal. It was time to junk the older Federalist ideas about the vulgarity of appealing to the people through the press. Ames suggested a Latin motto as a guide: Fas est et ab hoste doceri (“It is perfectly proper to be taught by one’s enemy”). Up and down the Republic, Federalists began founding papers in which, Ames declared, “wit and satire should flash like the electrical fire.” At the same time, the paper he helped found, the New England Palladium, would, he predicted, be “fastidiously polite and well-bred. It should whip Jacobins as a gentleman would a chimney sweeper, at arms length, and keeping aloof from his soot.”
In New York, Alexander Hamilton soon gathered a group of well-heeled Federalists who put up $10,000 for a daily to be called the Evening Post (still in business today, as the New York Post). Its editor, William Coleman, met Alexander Hamilton by night and took down his editorials from the very lips of the great man himself. Throughout the other states, similar papers suddenly blossomed: in Baltimore, for example, the Republican, or, Anti-Democrat; in South Carolina, the Charleston Courier. In Hudson, New York, another group of Federalists led by Elisha Williams, one of the state’s most noted attorneys, backed Ezra Sampson as the editor of the Balance and Columbian Repository. As a junior editor Sampson hired twenty-two-year-old Harry Croswell.
Connecticut born, this well-built, dignified young man had studied for a time in the household of Noah Webster, later of dictionary fame and a high Federalist of the old school. (Webster’s solution for rampant Jeffersonianism was to raise the voting age to forty-five.) Temperamentally, Harry Croswell was a born Federalist. He was religious, had a natural deference for older, wiser, richer men, and tended to see political developments of the day as a clash between the forces of darkness and light.
Hudson at this time was not the somnolent little river town it is today. In the decade after the Revolution it carried more ships on its registers than the city of New York. Much of western Massachusetts and northern Connecticut used Hudson for a shipping center. One March day in 1802, a reporter counted 2,Hoo sleighs loaded with goods on Hudson’s streets, creating a traffic jam of prodigious dimensions. At the same time, with Albany, the state capital, a mere twenty-eight miles upriver, it was hardly surprising that Hudson and surrounding Columbia County were politically sensitive areas. Later in the century one local historian unabashedly claimed that the county had produced more distinguished politicians than any other comparable area in the entire country.
The Jeffersonians were strongly entrenched there. In 1802, the attorney general of the state of New York was sharp-eyed, hatchet-faced Ambrose Spencer, a native son of Columbia County. Morgan Lewis, chief justice of the state supreme court, was married to Gertrude Livingston, whose family’s vast upstate holdings included a huge chunk of the southern portion of the county. The Livingstons were the most potent voice in the Jeffersonian party at that time.
It was hardly surprising, therefore, that the Jeffersonians decided to set up a rival to the Federalist Balance. For their printer they chose Charles Holt, former editor of the New London Bee and a Sedition Act martyr who had been convicted in 1800 for libel and spent several months in jail. Holt prepared to launch a Bee in Hudson and made it clear it would buzz impertinently in the face of the dignified Balance.
Young Harry Croswell forthwith saw an opportunity to prove his extreme devotion to Federalism. He persuaded his senior editor, Sampson, to let him publish in the garret of the Balance office a paper entitled the Wasp. As an editorial pseudonym, Croswell chose “Robert Rusticoat”; for a motto, “To lash the Rascals naked through the world.” Down in New York, an observer in the Evening Post told the story in doggerel obviously modelled on “Yankee Doodle.”
Croswell’s opening number was nothing less than a declaration of war:
Wherever the Bee ranges, the Wasp will follow over the same fields and on the same flowers—Without attempting to please his friends, the Wasp will only strive to displease, vex and torment his enemies ... The Wasp has a dirty and disagreeable job to perform. He has undertaken the chastisement of a set of fellows who are entrenched in filth—who like lazy swine are wallowing in a puddle. He must therefore wade knee deep in smut before he can meet his enemits on their own ground.
At his opposite number, Holt, Croswell levelled the following blast:
It is well known that you was bro’t here by virtue of $500 raised for that purpose by the leading Democrats in this city. That the public may know, therefore, with how much purity and independence you will conduct in your editorial labors, would you be kind enough to answer the following questions:
- Did the contributors to the $500 purchase you, as they purchase Negroes in Virginia, or hire you as they hire servants in New England?
- Are you not a mere automaton in the hands of your masters: pledged to publish whatever slanders or falsehoods they shall dictate? And by your contract with them if you refuse to pollute your sheets have they not a right to ship you back again to your 350 subscribers in New London?
Croswell soon made it clear that this was more than a local war. Down in Virginia, James Callender was demonstrating his lack of principle by turning on his former idol, Thomas Jefferson. After Jefferson became President, Callender, working on the assumption that his slanderous attack on Washington and Adams had done much to swing the election, coolly asked to be made postmaster of Richmond. Jefferson declined, whereupon Callender revealed in print that while he was working on The Prospect Before Us, Jefferson had sent him a hundred dollars and had even read part of the manuscript, returning it with the declaration, “Such papers cannot fail to produce the best affect. They inform the thinking part of the nation …”
This was sensational stuff, the kind of thing that could hurt Jefferson politically. Washington was now in his grave two years and already the process of canonization was in full swing. Federalist printers rushed to their presses to discuss Jelferson’s rather lame explanation that he had sent Callender the hundred dollars out of charity, and because he was a Sedition Act victim. But few equalled the savagery with which the Wasp pilloried this explanation.
It amounts to this then. He [Jefferson] read the book and from that book inferred that Callender was an object of charity. Why! One who presented a face bloated with vices, a heart black as hell—one who could be guilty of such foul falsehoods, such vile aspersions of the best and greatest man the world has yet known—he an object of charity! No! He is the very man, that an aspiring mean and hollow hypocrite would press into the service of crime. He is precisely qualified to become a tool—to spit the venom and scatter the malicious, poisonous slanders of his employer. He, in short, is the very man that a dissembling patriot, pretended “man of the people” would employ to plunge for him the dagger, or administer the arsenic.
Again and again Croswell sank his stinger into this Jeffersonian blister.
Will the reader turn to that inaugural speech of 1801 and see how this incarnate [Jefferson] speaks of Washington. There he makes him a demigod—having already paid Callender for making him a devil … Will the word hypocrite describe this man? There is not strength enough in the term.
When Holt attempted to answer Croswell by impugning Callender’s character, the young Federalist editor hoisted him with another petard.
About the time of Callender’s trial, you [Holt] printed a paper in New London—in that paper Callender was extolled to the skies. He was then an “excellent Republican,” a “virtuous man,” a “good Citizen,” a “suffering patriot.” … If there is anything on earth to be pitied, it is a miser-”able editor” constantly tumbling into the mire; and whose every struggle but sinks him deeper.
The disarray of his antagonists emboldened Croswell to aim some shafts at local Democratic-Republicans. In the September 9, 1802, issue of the Wasp appeared the following poem:
The poem went on to describe how the attorney general, “madly frowning on the clown,” asked him how he had the insolence to address him as a “fellow lab’rer for the common good.”
Croswell lampooned other leading local characters who were perfectly recognizable even when he named no names. One satire described a prominent judge who spent an evening eating and drinking at a nearby tavern and then refused to pay his bill. In a memoir that he attached to one of the few surviving complete sets of the Wasp (now at the New-York Historical Society), Croswell told how he was walking through the streets of Hudson, not long after publication of the latter tale, when up thundered a local justice of the peace, a big man named Hagedorn, who leaped off his wagon, shook his horsewhip under Croswell’s nose, and vowed that he considered the tavern story slander and was going to extract instant revenge.
“I had no cane or other means of defense,” Croswell wrote. “But I stood erect and dropping my hands to my sides looked him full in the face and in the most cool and collected manner apprised him that … neither he nor any other man could ever whip me and it was a mistake for him to talk so loud about it. He … broke out again in a tempest of oaths, turned shortly on his heel, mounted his wagon and drove off at a furious pace, his poor horse having received the rash intended for me.” Looking around him, Croswell noticed a staunch Federalist friend in a nearby doorway laughing heartily at the exchange. “Harry Croswell,” said he, “how could you be so sure that he would not whip you?”
“Mainly,” Croswell replied, “because I planned to run away if he had attempted it.”
It never seemed to occur to Croswell that he was a David taking on a number of political Goliaths. One reason may have been the illusion created by the preponderance of Federalists in Hudson. Among his prominent contributors was a young attorney, Thomas Grosvenor, who was the brother-in-law of Elisha Williams. Williams did more than merely threaten Charlie Holt when the Bee turned some of its venom in his direction. He caught the small, thin Holt, described as a “cripple” by a Columbia County antiquarian, and with several supporters nearby, thrashed him thoroughly.
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.
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?”
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.
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.
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.
Croswell’s personal troubles were not yet over. Ambrose Spencer returned to Hudson and brought a new suit against Croswell and his mentor, Sampson, for libel. Sampson settled out of court, but the stubborn Croswell refused to back away from the scathing comments he had made about both Spencer and his henchman, District Attorney Ebenezer Foote, in the farewell issue of the Wasp, which had appeared on January 26, 1803. Foote submitted a suit of his own. Spencer recovered $126 in damages; poor Foote, attempting to prove he was not a swindler and a blockhead, was ambushed by a host of witnesses who solemnly vowed they had seen him cheat at cards, among other things. The jury awarded him damages of six cents. This final act of low comedy was gleefully reported in the Balance.
Croswell now became senior editor of the Balance and continued to do battle in the Federalist cause in Hudson until 1809, when he transferred his paper to Albany. This was a mistake. The Federalists there were in disarray, and his support was meager. Debts piled up; in 1811 a leading Federalist who had loaned him money obtained a judgment against him, and the harassed editor served a short sentence in a debtor’s prison. It was one indication of the fatal deficiencies of the Federalists as a party. The “best people” were too interested in lining their own purses to make the sacrifices that a successful political machine demanded.
Totally disgusted, Croswell quit newspapering, took Episcopal orders, and after serving briefly as rector of Christ Church in Hudson, moved to Trinity Church in New Haven. He remained in this post, respected and eventually revered, for the next forty-three years. But he never attended another political meeting, or even exercised his rights as a voter. “His revulsion from Federalism was so entire,” said one of his acquaintances after his death, “that in later life his tacit sympathy was evidently with the Democratic party.”
Thus exit Harry Croswell. As for Alexander Hamilton, the sequel of the Croswell case was tragedy. During the hearings he had stayed at a friend’s house near Albany, and in an evening’s conversation, he delivered some scathing denunciations of Vice President Aaron Burr, who was soon to run against Chief Justice Lewis for the governorship of New York. In the course of the election campaign, the friend unwisely quoted Hamilton in a letter that got into the newspapers. Lewis won, finishing Burr politically in New York, and the embittered Vice President challenged Hamilton to a duel. The acclaim he won at Croswell’s trial may well have played a part in persuading Hamilton to accept—in spite of his personal detestation of duelling, which had been redoubled by the death of his son Philip in a politically inspired duel two years before. Having regained not a little of the stature he had lost within his party, Hamilton may have been more inclined to risk the morning visit to Weehawken in the hope that it would be another step toward undoing his great rival in the White House, Jefferson. He guessed wrong, and paid for it with his life.