All history is a mingling of the great and small, but seldom has there been a stranger connection between the trivial and profound than 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 Thomas Jefferson, has rarely been matched in American politics. The Federalists were elitist and favored a strong national government; the Democratic-Republicans favored a decentralized, democratic government.
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 canceled his subscription. Freneau spent most of his abuse on Hamilton. Bache preferred Washington as a target, calling him “treacherous,” “mischievous,” “inefficient,” and sneering at his “farce of disinterestedness” and his “stately journeyings 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, after John Adams became president, were an expression of this fear. Passed by a Federalist Congress with Washington’s public approval, the Alien Act gave the president 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.
The Jeffersonian counterattack was beautifully executed: The Federalist judges retreated in disarray and all but abandoned the unpopular prosecutions after 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 (the Jacobins had led the murderous rampage known as “the terror” during the French Revolution).
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 sixty-four, most of them maintained a tepid semi-neutrality 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.”
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, 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 Croswell, young, well-built, and dignified, had studied for a time in the household of Noah Webster, later of dictionary fame and a high Federalist of the old school. 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. 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.
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.
Harry Croswell 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.”
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 enemies on their own ground.”
At his opposite number, Holt, Croswell leveled 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 his book, The Prospect Before Us, Jefferson had sent him $100 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 Jefferson’s rather lame explanation that he had sent Callender the $100 out of charity, and because he was a Sedition Act victim. But few equaled 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.”
Croswell lampooned 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. The judge later accosted Croswell and threatened revenge for such “slander.”
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 at the time seemed 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 connection to Callender, the presumed anti-Jeffersonian.
By private letter and personal messenger, 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. 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 Croswell had taken on New York politicians to an extreme and he was Attorney General Ambrose Spencer’s first choice. To underscore this fact, Spencer himself appeared to prosecute the case, with the local district attorney, Ebenezer Foote, serving as an assistant.
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 libelous statements, in part, were taken from Callender’s publications.
The defense made a 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 former 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, 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. He did believe that the states had that power.
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, which applied the principle of no prior restraint. Anyone could publish whatever they wanted, but there could be consequences: They could be charged with libel. In the Jeffersonian view, states could define what was libelous. And in the thinking of the time, the truth of what was published was no defense.
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 unleashed 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?” Williams asked.
Croswell’s attorneys appeared in court the next evening and entered a formal affidavit stating that the Federalists would 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.
Williams and Spencer debated the bail request most of the next day. 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, quoted cases out of English common law. Williams came back with a rain of English citations.
Spencer’s motion to bind Croswell was denied. The Republican judges could not bring themselves to gag Croswell so flagrantly.
Six months of legal jousting followed. The Croswell attorneys fought to get the case transferred to the circuit court, under a New York Supreme Court justice, and Spencer argued to retain it in the lower court, where he would have a local Jeffersonian bench and jury.
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 when they requested a delay in order to obtain evidence from James Callender in Virginia. Such evidence, Judge Lewis declared, concerned the truth of the charge and the law was “settled, that the truth could not be given in evidence to the jury as a justification.”
Croswell’s lawyers argued 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. He agreed to take the case 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 and drowned. But he left behind his published works, including letters Jefferson had written expressing his approval of The Prospect Before Us. 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, had a deep, instinctive love of liberty along with his vision of a society organized and run by a natural aristocracy. Now free from the inhibitions and necessities of political intrigue, he flung himself wholeheartedly into Croswell’s defense.
The opposition, meanwhile, had made a notable change. On February 3, 1804, Attorney General Spencer had been nominated to the Supreme Court, but he properly abstained from sitting on the case, leaving a four-man court: three Jeffersonians (Chief Justice Lewis, Brockholst Livingston, and Smith Thompson) and a lone Federalist, James Kent.
But in force of personality and weight of learning, Kent more than equaled the three Jeffersonian justices. He later authored Commentaries on American Law, the most influential legal volumes of the nineteenth century. He favored the common law tradition.
The problems - and the advantages - of the common law were 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 set the stage for Alexander Hamilton.
By now, the hearing had attracted almost the entire state senate and assembly, whose members poured into the Supreme Court chambers. 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 record exists of Hamilton’s speeches in the Croswell case, but New York papers reported them 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 5:00 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 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.
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. Hamilton accepted, and it cost him his life.