Chapter 12
July 11, 1798
EAST NOTTINGHAM ,
CECIL COUNTY , MARYLAND
“You are well acquainted with Colonel Burr,” Jacob Clingman said to his wife, the former Maria Reynolds. “He represented you in your divorce, and would take no fee. He told you to stay in touch with him. Now we need him again. Why are you reluctant to write?”
Maria was glad her young husband did not know that she knew Colonel Burr better than anyone suspected. She had met that dark-eyed New Yorker soon after she had left home at age fourteen, against her parents’ wishes, to marry the handsome and seductive Reynolds. That was over thirteen years ago, two years before the birth of her daughter Susan. She had discovered that Reynolds was a ne’er-do-well and a cheat, unreliable and unfaithful; often brutish to her and of late too inclined to fondle Susan. But by then her unforgiving family had cut her off. Burr, contrariwise, was gentle and considerate, appreciative of a neglected young beauty, and opened her mind to a world of politics and intrigue; their secret intimacy blossomed into a deeper friendship that lasted to this day.
Had that trustworthy friend been in Philadelphia when Reynolds’s brutality forced her to leave him, she would have solicited Burr’s help in returning to New York in 1792; as it turned out, a stroke of unkind fate took her to Secretary Hamilton’s door. She recalled how Burr helped extricate her from her husband’s schemes after the flinty Monroe and the kindly Speaker Muhlenberg began their investigation, and later represented her in a divorce proceeding that made it possible for her to make lawful her mating with Jacob. Despite the scandal that reached the surface in 1797, and despite Jacob’s inability to find a permanent position, Maria had remained a faithful wife and caring mother. She did not know where asking Burr this favor might lead.
“I am not reluctant to write him,” Maria lied, quill in hand, the blank paper before her. “It’s difficult to find the words to start.”
“ ‘My dear Colonel Burr’ is a good way to begin,” he said.
She sighed and began. “Because you were good enough to suggest that Jacob and I keep you informed about our lives and whereabouts, I send you these greetings from Cecil County in Maryland.” She knew that Burr did not care about the location of Jacob Clingman, a stockjobber with a tainted reputation; he cared about Maria. Her letter had to conceal their relationship from her second husband as well as from Burr’s beloved daughter, who often read his mail. “My daughter Susan and I are well. My husband Jacob is trying to make a career in finance but finds it difficult to overcome the enmity of Col. Hamilton.”
“It’s General Hamilton now,” he corrected, looking over her shoulder. “He’s back in the saddle.”
“That evil man will always be ‘Colonel’ to me,” she said. Drawing the inkwell closer, she continued writing. “We think that he has blacklisted Jacob Clingman among the securities dealers in commerce with New York banks, and his man at Treasury has done the same in Philadelphia. This has made it hard for us. “Jacob has written to a friend in London and hopes to get employment in England. If you would be willing to write to anyone you know in a bank or counting house there, we will be most grateful.”
“That’s it, good,” said Clingman. “Burr is known to despise Hamilton and has been doing political business with James Monroe and the other republicans. That takes courage now, with the Sedition bill and all.”
“The newspaper here tells us that Hamilton has overcome the”—she was about to write “scandal” but decided on “episode”—“that bore my name,” Maria continued, “and is now second in command to General Washington in the new army. Do you really suppose they expect an invasion by the French? I remember your concern about the danger to liberty of a standing army, and I hope you remember my concern about the kind of man who would forge letters from me and place at risk my reputation to protect his own.” That would stimulate an answer, she was sure, even if he had no help to offer in England for her husband.
“Partly because of the settlement you were able to wring out of—”
“ ‘Extract’ is better.”
“—my former husband Reynolds, we managed to keep our heads above water. I will never forget your many kindnesses.”
“Offer to help him,” Clingman suggested. “Politicians always need help.”
She stayed her pen, thinking of the way her first husband, Reynolds, had often urged her to thrust herself on men of financial means or political influence. Though Jacob, she was sure, did not think of it in that way, renewed contact with Burr would mean temptation.
“If your travels bring you to Maryland, or if you wish to see me anywhere else, I am at your disposal for any service to further your political career. I hope you will call on me for whatever I can do.
“Sincerely your friend, Maria Lewis Clingman.”
“You’d better tell him I’ve adopted the name of James Clement. It will sound better to an English firm.”
Maria sighed, adding that in a postscript. On second thought, she copied out the letter again, pointing out the name change as useful to her husband in starting a new life, and signing her own name as the one most likely to be her last: Maria Clement.
Chapter 13
July 14, 1798
PHILADELPHIA
Robert Goodloe Harper welcomed Cobbett to his cramped quarters in Congress Hall and cheerily held up his copy of Porcupine’s Gazette for that sweltering summer day. “I see with great satisfaction that Porcupine’s Gazette has driven the Aurora to the wall.”
Cobbett was pleased. He had been told of the financial difficulties of Bache’s paper by a friend in the Mayor’s office, and had written with unconcealed glee of the failure of that strapped publisher to pay a $5 fine. On top of that, Bache was stricken with the yellow fever and the fool was being treated by Dr. Benjamin Rush, the bleeder. “You have news for me?”
“George Washington is with us,” Harper said. “President Adams gagged a bit at having Hamilton rammed down his throat as second-in-command, but he’s organizing a force of twenty thousand men. That gives us the flower of the country and puts arms into the hands of all our friends.”
Cobbett was comfortable with that; even if the French did not invade, the war fever he had helped whip up with the unwitting aid of Callender would have a beneficial effect. Every nation’s rulers needed a standing army to keep order and protect property. As one of Harper’s lieutenants had openly declared, the only principle by which radical republicans could be governed was fear.
“I wanted you here today, William, to hear the debate on my Sedition bill. We are this close to passage”—the portly South Carolinian held up thumb and forefinger a half-inch apart—“but Gallatin has been able to muster resistance. I’ll have to compromise on a couple of points.”
The Englishman was quite prepared with recommendations. Sedition, in his eyes, was merely a special type of libel; it brought a government, rather than an individual, into disrepute. What was sauce for the goose of sedition could be sauce for the gander of libel, and it was the gander of libel that was honking at him. In Harper’s sweetening of the federal Sedition bill to placate a few republicans would be Cobbett’s defense against the libel lust of the state republican Judge McKean.
The editor raised one finger: “Malicious intent to weaken the government must be proved.” Harper nodded approval.
He held up a second finger: “The jury and not the judge must decide on such malicious intent.” Harper shrugged his agreement; apparently that did not seem to him to be much of a concession, but if it would please wavering republicans, fine.
A third pudgy finger joined the others: “And the truth of what is written or said about a public official must be a defense against a charge of sedition.” If those principles were made part of Federal sedition law, Cobbett believed, they would inevitably become part of State libel law. He would then be much safer in the radical-red State Court of Pennsylvania from reprisal by irate friends of Jefferson like Dr. Rush, whom he had been ca
lling a bloodstained quack.
“I’ll use all three if I have to,” said Harper hurriedly, “to overcome Gallatin’s opposition. Come listen.”
“Does the situation of the country require that any law of this kind should pass?” asked Albert Gallatin, as anti-Federalist leader, launching the debate on the floor. “Do new and alarming symptoms of sedition exist to require us to restrict freedom of speech and of the press?”
“Yes!” Harper shot back. “I have in my hand evidence of a dangerous combination to overturn the government—by publishing the most shameless falsehoods against the Representatives of the people.” He brandished a fistful of clippings from the Aurora, the New York Argus and other newspapers. “These say that we are hostile to free governments and genuine liberty. These say that we should be displaced and that the people ought to raise an insurrection against the government.”
“Do you think, sir,” said Gallatin, “that the people of America are ready to submit to imprisonment, or exile, whenever suspicion, calumny or vengeance shall mark them for ruin?” He waved off Harper’s request to immediately reply. “No, sir, they will resist this tyrannic system! The people will oppose it, the States will not submit to it.” Everyone in the chamber knew he was getting into dangerous territory with this argument, suggesting popular resistance and State opposition to Federal law. Nevertheless, he proceeded in his Swiss-French accent: “Whenever our laws infringe the Constitution under which they were made, the people ought not to hesitate which they should obey.”
Cobbett, at the table for the stenographic clerks, raised his eyebrows. This republican had just dared to suggest that any man could interpret the Constitution in a way that permitted him to ignore a law passed by the Congress.
Harper caught it, too. “Beware what you are suggesting, sir.”
“If we here exceed our powers, we become tyrants,” Gallatin said, plunging deeper into rebellious rhetoric, “and our acts have no effect. Your Sedition bill will cause disaffection among the States. It will rouse the people to oppose your government. It will bring tumults and violations.” He paused, seeking a way to express in coolly formal terms the most inflammatory idea yet to be expressed in the House. “It will bring a recurrence to first revolutionary principles.”
“Do you talk of revolution? That, sir,” said Harper in a menacing tone, “may border on an expression of sedition itself.”
The customarily noisy House was hushed. Cobbett, at the clerk’s table, caught Harper’s eye and nodded approval. He knew that Harper’s target only appeared to be the irresponsible press. Although in the case of Callender, it was, the hidden goal of the Sedition bill was far more daring: to suppress opposition in the Congress itself. The press was but the mouthpiece of party, and to silence the press would not totally crush the party in opposition.
“Those who oppose this law,” warned Harper, “without carefully distinguishing between verbal protest and violent action, are insurgents and rebels themselves. Your statement just now, Mr. Gallatin, about ‘first revolutionary principles,’ is intended to produce divisions, tumults, insurrection and blood.”
Gallatin stood his dangerous ground. “You suppose that whoever dislikes the measures of an Administration, and of a temporary majority in Congress, is seditious. You hold that whoever expresses his want of confidence in the men now in power is an enemy—not of the Administration, but of the government itself, and is liable to punishment. In this despotic bill, you seek a weapon to perpetuate your authority and preserve your present places.”
True enough, thought Cobbett. Gallatin seemed to understand the essential purpose of the Federalist bill. Swatting the annoying mosquitoes of the press was incidental to the great goal of achieving a serene public order. The end being pursued was to preserve national unity even if it meant crushing all political opposition.
“You, sir,” said Gallatin, taking the argument to his opponent, “in imputing sedition to me just now, have made the first attempt in this House to suppress the opinion of an elected Representative. I am not surprised. In your career, you have grossly attacked members for writing circular letters. Your next step is to make our speeches the subject of prosecution for sedition.”
“You, sir, and not I,” retorted the leader of the Federalists, “are the one to set up a doctrine that every man has a right to decide for himself what laws are constitutional. You and not I suggest that States have a right to combine and resist the laws passed by this Congress. Is that not a call for disunion? For anarchy?”
Good point; Cobbett always thought that a great weakness in the U.S. Constitution was its unanswered question: Who decides what is constitutional? The President? Congress? The States? The courts? The “people,” in an unruly mob assembled? Because the founders had left that question of ultimate authority unresolved, he felt, Congress should decide it here and now.
Gallatin did not rise to Harper’s bait. Instead he cited the First Amendment to the Constitution and James Madison’s views about what laws the Congress was expressly forbidden to pass. But his Federalist opponent derided that interpretation as only one man’s opinion of the meaning of one amendment; and as war threatened, the opinion of a former Representative now under Jefferson’s sway carried little weight.
Cobbett had prepared Harper with materials to take up a charge he had published in Porcupine’s Gazette: that Vice President Jefferson was working hand-in-hand with Bache, Callender and now William Duane, the editor and writers for the Aurora, to undermine government authority. He did not have long to wait.
“The evidence in my hand,” continued Harper, “is from a newspaper—the Aurora—that sounds the tocsin of insurrection. But this is not an independent voice. This paper is supported by a powerful party. Its anonymous pieces contain the opinions of a certain great man.” He did not mention the name of Thomas Jefferson, just as Cobbett had not in his Gazette. “Its inflammatory addresses to the wild Irishmen and other immigrant radicals is, therefore, understood by them to come clothed with high authority. They know he is daily and nightly closeted with these disunion-minded journalists.”
His voice rose to fill the hall as he decided to reveal his goal. “This sedition is the work of a party, not a mere newspaper. That party assiduously disseminates this paper through the country. And that party is a faction controlled by the government of France, which is engaged in a most criminal correspondence with her agents here. The purpose of this Sedition bill, entitled ‘an act for the punishment of certain crimes against the United States,’ is to repress the criminal enterprises of this party.”
Gallatin disputed this direct linkage of Jefferson to the Aurora and Callender.
“The gentleman uses the word ‘closeted,’ ” said Gallatin, affecting a smile, “as if that were a sinister place of meeting by the Vice President. If the receipt of visits in his public room, the door open to anyone who should call, may be called ‘closeting,’ then it is true he is ‘closeted’ with everyone who visits him. In no sinister sense is it true.”
“The press is merely the engine,” Harper pressed, “through which this party conspiracy functions. This is not a free press, this is a party publication, and it is the party that bears the responsibility for seeking to undermine the government and subvert the security of the nation.”
“The gentleman has forgotten,” said Gallatin, “that laws against political writing have throughout history been used by tyrants, from the Roman emperors to the Star Chamber. They have been used as this Sedition bill will be used—to prevent the diffusion of knowledge, to throw a veil on their folly or their crimes. This odious bill will satisfy those mean passions which always denote little minds, and will be used to perpetuate their own tyranny.”
That eloquently phrased tirade may be satisfying republican passion, Cobbett observed, but was not winning a majority of votes in the House. Apparently, Gallatin sensed the same mood, and concluded in a more conciliatory way.
“I join with all of you in despising all malicious slander.
But I submit,” he reasoned, “that governments whose motives are pure have long been willing to listen to legitimate criticism. These good governments have realized that suppression of criticism is a confession that no other means could defend their conduct. Coercion is never the answer to calumny. The only proper weapon to combat error is truth. Let the public judge.”
To Cobbett’s relief, Harper seemed to soften. “In the spirit of comity,” he said—to pick up a handful of votes needed for a majority—he would support some amendments in the House to the Senate’s harsh Sedition bill. First, he struck judges from the category of officials protected from attacks in print; Porcupine, thinking of the infamous McKean, applauded that.
Then he struck the words “libelous or scandalous” from the Senate language and substituted the more specific “false and malicious.” Perhaps without fully realizing it—as Cobbett, advocate of this point, most certainly realized it—he made truth a defense against a charge of sedition. In a single stroke, Harper set on its head the old English common-law notion that “the greater the truth the greater the libel.” Under this amendment to the proposed law, if a statement attacking a government official was true, no matter how vicious or defaming, it was not sedition. And if a true statement was not sedition against the national regime, Cobbett would argue in State court, it was not libel against an individual, either.
To win over one more republican vote from Maryland, Harper offered another concession: that a jury, not a judge, would decide if a seditious statement were made with malicious intent. That satisfied the Englishman, whose experience led him to feel more comfortable with jurymen for his own libel defenses.
“Next, I will stipulate that this law is not to apply where freedom of speech is expressly allowed by the Constitution.” That sounded innocent enough, but Cobbett was aware it contained a trap for republican Members. Harper knew that the first amendment decreed that “Congress shall make no law” to abridge freedom of speech—but it said nothing about the States making laws abridging speech all their legislatures liked. The only place the Constitution expressly protected even the most outrageous speech, putting it beyond the reach of the States’ libel laws, was on the floor of Congress. But the canny Harper, by specifying that nothing spoken onthe floor could be prosecuted for sedition, made vulnerable to prosecution statements the Congressmen made or letters they had written outside the protected halls. His was no real concession; on the contrary, it was a way to prosecute such loudmouths on the campaign trail as Spittin’ Matt and his “wild Irish” cohort.
Scandalmonger: A Novel Page 16