At his fevered wife’s urging, Callender had taken his older boys and their two-year-old brother, Thomas, born in America, to the home ofThomas Leiper on a farm far removed from the swamps and town. That kindly soul, a snuff-maker and tobacconist, knew that Callender could not afford to pay board. He took his fellow Scotsman’s children in not just out of his natural good nature, Callender reckoned, but because he was a good republican and liked what their father was writing about Jefferson. The payment of board would await an improvement in Callender’s fortunes; when Jefferson was President, the Scot would not lack for subscribers or government printing. Postponing board was no hardship for Leiper; the sudden popularity of cigar smoke had trebled his business.
The boys, awed and delighted by the farm animals, did not at first feel lonely at their separation from their parents; they were happy to be away from the incessant botheration of the Philadelphia mosquitoes. Leiper urged the distraught father to find a way to get to Dr. Benjamin Rush, the foremost physician in America and whose services were in great demand, to save the life of his wife.
Dr. Rush was frequently the target of Porcupine’s rages. That meant he was an outspoken republican, on the side of the French, and probably a friend of the anti-Federalists in Congress. Callender went to the City Tavern and found John Beckley and Matt Lyon, or “Spittin’ Matt” as he was now known by friend and foe alike, conspiring in the bar. They did not shake hands; nobody in Philadelphia wanted to take a chance on contamination.
“You’re an alien, James,” Lyon told him before he could ask for medical help, “and you’re in danger. The Alien Enemies bill will be passed in the House tomorrow. Harper, damn his eyes, says it’s needed ‘to purify the national character.’ The Senate aristocrats have already given the President the power to ship the foreign-born back to where they came from. They’re all tagged as troublemakers.”
“You and your United Irishmen are the biggest foreign-born troublemakers in this God-forsaken town,” Callender reminded the Vermont Congressman. He reached for the bottle in front of them and poured himself a drink he sorely needed. His friends could afford it.
“But Matt’s no alien,” said Beckley. “He’s a citizen, fought in the Revolution, and he has all the rights Madison put in the Constitution. You don’t. It’s not only the twenty thousand French they want to put on boats back to France. There’s a few Scots they want to see back in Edinburgh.”
The specter of deportation now loomed in his mind. His first thought was that his sick wife could not travel. His second was that, as a fugitive from Britain’s sedition law, he faced certain imprisonment in Scotland, which meant that his wife and their boys would be sent to the poorhouse. The only Callender who could claim to be an American was Thomas, the two-year-old born here. That America that was now in the grip of war fever and yellow fever was a terrible place, but it was safer than any other place he could think of.
“Fortunately, you applied for citizenship years ago,” Beckley was saying. That was not true; Callender had never sought to become an American, hoping instead to return to Scotland when it was free of oppressive British rule. But the Scot’s long-range hopes of return seemed to concern Beckley less than the immediate danger to Callender’s ability to wield his pen in freedom. “The date on your application is 1796,” he lied, “two full years ago, and you can prove you have resided here for six years. A man in the State Department who remembers he owes me his job has your documents in order.”
“And after you pick those up,” added Matt Lyon, “there’s a judge who harbors secret republican sympathies ready to swear you in as a citizen. The man who’s taken in your children, Thomas Leiper, a man of property here, has agreed to be your witness. We’ve told him that Thomas Jefferson will hear of it and be grateful to him. Drink up, lad, you’re a dirty Scottish interloper no more.”
The deed was done. Callender was the newest American. He could smile when Lyon teased him with Cobbett’s gibe at “Citizen Callender.” His spirits rose further when Beckley told him that he knew Dr. Benjamin Rush well. “A great man, James. Signed the Declaration of Independence, you know. Hated Hamilton in the Revolution, introduced me to Colonel Burr. Saved thousands of lives, and I’m proud to say he spent many a happy hour by my bed and fireside.”
Walking down the hall of the courthouse, the three naturalized citizens passed a crowded civil courtroom. Beckley, out of curiosity, stopped to look in, then motioned his friends quickly to come inside. “Cobbett’s being charged for libel. This should be worth watching.”
“He’s one of that aristocratic junto,” Lyon agreed, “trying to screw the hard earnings out of the poor people’s pockets so the government can pay enormous salaries. I want to see the Porcupine get his comeuppance.”
Callender saw the ruddy-faced Cobbett sitting in the dock, answering questions in a libel case brought by the Spanish Minister on behalf of the King of Spain. A grand jury of a score of citizens was listening.
“Is it not true, Mr. Cobbett,” said the Pennsylvania judge conducting the interrogation, “that you caused to be published in Porcupine’s Gazette an accusation that the King of Spain was ‘a degenerate Prince whose acts were directed by the crooked politics of France’?”
“It is true that I wrote and published it,” said Cobbett stoutly, “and ‘crooked’ is the true word for it. That I should be arrested for it and dragged into this court is proof of the low estate to which America’s vaunted ‘liberty of the press’ has sunk.” He noticed the entrance of Beckley, Lyon and Callender into the courtroom—all frequent targets of his—and nodded grimly at their presence, as if they were part of a conspiracy to silence him.
Beckley leaned across and whispered to Lyon: “The judge, McKean, is one of ours. Best republican in the State of Pennsylvania, helped me carry the state for Jefferson. And the Spanish Minister is soon to be his son-in-law. This should cost Cobbett a pretty penny.”
McKean proceeded with his examination of the defendant. “And did your reference to the Minister Plenipotentiary here, in the same publication, as ‘the little Don,’ not hold him up to ridicule?”
“He is demonstrably small,” said Cobbett. “Look at him. He’s getting littler every minute. As for my writing, I have endeavored to make America laugh instead of weep.”
“Everyone who has in him the sentiments of a Christian or gentleman,” said McKean, turning to the jury, “cannot but be highly offended at the envenomed scurrility that is raging in pamphlets and newspapers printed in Philadelphia. Libeling has become a kind of national crime.”
“And so it has,” whispered Lyon, who had caught more than his share of abuse from Cobbett. “This judge is also the prosecutor. Porcupine will pay.”
“This scandalous evil of scurrility and defamation,” the judge went on, “is aimed at creating a rupture between the sister republics of the United States and France.”
“Criminal intent,” whispered Beckley, who had read law. “He has to prove criminal intent.”
“The editor and printer of the most licentious and virulent of these publications,” said McKean, “—the defendant Cobbett—has ransacked our language for terms of reproach and insult. His irritating invectives, couched in the most vulgar and opprobrious language, are designed to provoke a war with France. They seem calculated to vilify, nay, to subvert, republican governments on both sides of the Atlantic.”
Callender was torn. He agreed with everything the republican judge was saying about the despicable Porcupine, and especially his intention of provoking a war with France. The XYZ affair had given him a whip that Cobbett used to flay the Aurora, Callender personally, Lyon and all the Jefferson men. And yet the editor was being sued for the way he presented his opinions, much as Callender presented his. Cobbett was more successful at it by far, and handier at invective, but they were in the same boat, in a sense. If the prickly Porcupine could be fined heavily for his use of invective, who would be next?
The judge rose from the bench and brandished his
gavel at the jurors: “Gentlemen of the Grand Jury, it is for you to animadvert on his conduct. Without you these libels cannot be corrected. To censure the licentious is to maintain the liberty of the press.”
Cobbett raised his hand for permission to speak. Judge McKean—Callender recalled that Cobbett had denounced him recently in his Gazette as “a vain, conceited, rusty old weathercock”—nodded yes. He smiled and sat back as if to enjoy the sight of the defendant further infuriating everyone in the courtroom.
Still seated, Cobbett said to the judge, “So pointed and personal a charge to a jury, I am bold to say, has never before been delivered from the bench in any country that has the least pretensions to civil liberty.”
“Stand up when you address the bench,” said the judge, “before I hold you in contempt.”
Cobbett rose from his chair in the dock, turned away from McKean and addressed the jurors. “I will say that I have never attacked anyone whose private character is not, in every light, as far beneath mine as infamy is beneath honor. I defy the City of Philadelphia, respectable as are many of its inhabitants, to produce me a single man who is more sober, industrious, or honest; who is a kinder husband, a tenderer father, a firmer friend. Though it is unseemly for anyone to say that much of himself, I invite comparison of my character with the very judge who holds me to be the worst of miscreants.”
“He’d better not lose the jury’s verdict,” Lyon whispered, “because he’s just asked for hell itself as a fine.”
“As to my writing,” Cobbett continued, “I never did slander or defame any one, if the promulgation of useful truths be not slander.”
Beckley whispered, “Ah, but there’s the rub. Truth is no defense against libel.” Callender nodded grimly; in England, the truth defense had made headway in changing the common law, but not here.
“I have, indeed, stripped away the close-drawn veil of hypocrisy,” Cobbett boasted. “I have ridiculed the follies, and lashed the vices of thousands, and done it sometimes, perhaps, with a rude and violent hand. But these are not the days for gentleness and mercy. Such is the temper of the foe; such must be the temper of his opponent.”
The editor of Porcupine’s Gazette took out his billfold and extracted from it a pamphlet and a clipping from a newspaper. “I carry these,” he said mildly to the jurors, “as an example of the correctness and accuracy of all you have heard from our distinguished judge on the subject of personal invective. By the way, I congratulate Judge McKean on his sagacity, and wish his famously beautiful, if otherwise limited, daughter well in her forthcoming marriage to the Minister of Spain, the complainant in this case.”
“I wondered how he would inform the jury of that slight conflict,” said Beckley.
“Here is an effusion from the editor Bache, hireling of the French and the Chief Judge’s companion at civic festivals.” The editor of Porcupine’s Gazette pulled on his spectacles and examined the cutting from the rival Aurora. “He calls the King of England ‘that prince of sea-robbers, head of a corrupt monarchy, a mixture of tyranny, profligacy, and brutality,’ and says, ‘I would heartily rejoice if the Royal Family were all decently guillotined.’ Compare that diatribe, which went unchastised by this court, to my mild censure of Spain.
“And what did this same calumniator of Britain write of John Jay, Chief Justice of the United States, who negotiated a peacemaking treaty with your mother country? That he was, and I quote, ‘a damned arch-traitor.’ ” Cobbett paused for effect. “Was his sheet, the Aurora, harassed with libel suits or for publishing Thomas Paine’s infamous letter to George Washington with all its hellish malignity of Parisian cannibals?”
He looked out into the courtroom, as if seeking out his tormentors. “Paine’s letter savagely maligned Washington, whose fame and character are now bleeding at every pore as a result of the attacks of these unrestrained scoundrels. And right over there”—Callender’s chest constricted as Cobbett pointed an accusing finger at him—“seated there, to gloat at this travesty of Pennsylvania justice, is James Thomson Callender.
“That little reptile, who seems to have been born for a chimney-sweep and to be even now following the sooty trade, made his escape from the hands of justice in Scotland for publishing a string of infamous falsehoods.”
Cobbett held up another page torn from the Aurora. “Here is what this fugitive has written about the one man this nation universally reveres. ‘If ever a nation was debauched by a man, the American nation has been debauched by Washington. Let his conduct serve to be a warning that no man may be an idol, and that the mask of patriotism may be worn to conceal the foulest designs against the liberties of the people.’ ” Cobbett reminded his audience that Callender had proudly signed that defamation of the nation’s first President. “And this from a writer who claimed in the preface to his ‘history’ that Thomas Jefferson encouraged him to publish an American edition of his perfidious work.”
Judge McKean looked out into the audience, spotted his trio of anti-Federalist allies and motioned for Callender to stand. “You have been singled out for vilification by the defendant, Mr. Callender. Do you wish to tell the court what you think of this defense?”
“Here’s your chance, James,” said Beckley. “Remember, Cobbett’s intent in what he wrote was to start a war. That pernicious purpose, that criminal intent, is what makes a libel.”
Lyon joined in the hurried coaching. “And every man in the jury box will be taxed by the Federalists to pay for that war Cobbett wants against France.”
Callender walked slowly to the front of the courtroom. He was thinking less of what he would say than of how he looked to the jurors, dressed as he was all in black, not that much unlike a chimney-sweep. It was a good thing he was hatless. He willed himself not to fidget or otherwise seem to be ridden with lice, as Cobbett had pictured him before, or reptilian, as he had caricatured him now.
He did not say what they expected. “If a man is attacked in the press,” he told the jury, “he should reply through the same channel. In that way, he fights his antagonist with equal weapons.”
Judge McKean looked sharply at him. Callender went on with what he believed: “The doctrine of libels has frequently been a screen for powerful and profligate men. When they are unable to meet their accusers on the fair ground of argument, they take recourse to law to overwhelm their accusers by the expense of litigation.”
Nobody in the room was prepared for that. The republican judge directed a question to Callender: “You were speaking of private citizens. But what of libels against those entrusted with the conduct of public affairs? Does this not breed in the people a dislike of their governors, and endanger the public peace by inclining the people to faction and sedition?”
Sedition against the government, more than defamation of the character of individuals, was apparently where all this was headed. Callender stubbornly shook his head, even as he felt he was shaking in his shoes. “In all countries,” Callender replied, “those who hold the reins of government are the persons who have most to fear from disclosure of the truth. Let the history of the federal government instruct us all, that the mask of patriotism may be worn to conceal the foulest designs against the liberties of the people.”
From the defendant’s table, Cobbett stared at him with his mouth open. Callender turned and trudged back to his seat.
Beckley said, “You damn fool, whose side are you on?” Lyon weighed in with “Have you forgotten what he just said about you? It’s not like you to turn the other cheek. I’d have—”
“Spit in his face,” Callender finished his sentence for him. “I’m sorry, Matt, but that’s what I think.” To him, liberty of the press went beyond a guarantee of no previous restraint, especially if the sword of later punishment hung over the head of writers. Freedom of speech even went beyond admitting truth as a defense against libel, which this judge rejected as not being part of the common law. As Callender saw it, the place for public disputation was in print, not in any law courts. You inveighe
d as vigorously as you could with fact and opinion, and then you lowered your head for the return attack in an opposing journal, and then, if you were still standing, you let loose a return broadside. An editor had a responsibility to print a target’s answer, but that obligation was assumed voluntarily to encourage the cut and thrust of debate and to let the editor pose as an exemplar of fairness. Any government restriction on the right to criticize—especially to criticize national leaders, even in language chosen to call up outrage—diminished a country’s freedom.
Callender’s friends, disgusted with his political apostasy, strode out of the courtroom and left him there alone. With little else to do, he seated himself to await the decision of a grand jury that had been forcefully directed by the judge to indict.
In two hours, the nineteen members filed in and were polled. Nine voted for indictment of Cobbett, but ten—Federalists, probably, but joined by one or two republicans swayed by Callender—voted against. The clerk said, “The bill is returned Ignoramus by the grand jury.”
The jurors, to the surprise of most spectators and to the evident irritation of the judge, had decided to ignore Cobbett’s undoubted offense. There was to be no prosecution of Porcupine’s Gazette for libel. Callender’s reaction was mixed. He was glad that jurors had shown respect for an editor’s right to criticize, even abusively, for that was a step away from sedition. At the same time, he was sorry that the pompous Porcupine, profiting handsomely from his abuse of the minority, had not felt the pain of monetary judgment.
Cobbett sought Callender out afterward. “You surprised me. I am in your debt.”
“We reptiles and chimney-sweeps want no thanks from the likes of you,” Callender told him sharply. “It’s just that I believe it is the happy privilege of every American that he may prattle and print in what way he pleases, and without anyone to make him afraid.”
Scandalmonger: A Novel Page 14