“Wasn’t old enough, I guess, before the Revolution. We raised tobacco over by the York River. We indentureds weren’t much above the slaves ourselves.” That was a recollection he rarely shared. “Later, when I was Mayor here, these dances were just getting started.”
“That fellow over there is buying himself a Negro girl for the night,” Callender told him. “See him pointing her out—she’s the light-skinned one, a quadroon or even an octoroon. He’ll take her out to one of those shacks in the woods and use her any way he likes. She has no right to say no, and gets none of the money for saying yes. More often than not, he’ll impregnate her. These white men don’t just work their slaves, they breed with them. That’s why you see so many shades of brown in the children here. Sometimes straight red hair, too.”
“You’re better off sticking to politicks, Jimmy. A black dance is no place for you Calvinists.”
“Think of it—here in Richmond, the capital of the biggest state in the South, the races are intermingling.” Callender, genuinely shocked, was surprised that his friend took it all in stride. “In the plantations, the field hands are separate from the whites, but this cross-breeding goes on all the time with the household help. And they say it goes right up to the plantation owners themselves. That’s your Southern culture, John. Tyranny by day, a kind of sexual equality at night, except when some fellow won’t pay and takes a black woman by force. That’s immoral, slave or not. Makes my blood boil.”
“Let’s just listen to the music, Jimmy. And look at that gal dance. You won’t be going soft on Adams in your book, will you?”
“I’ll raise such a tornado as no government ever got before.”
Chapter 22
June 3, 1800
RICHMOND
Five months had paffed since Juftice Samuel Chafe attended the funeral of his friend George Washington. A generation before, as one of the Revolutionary “Sons of Liberty,” Samuel Chase had led the attack on the British public offices in Baltimore to protest the Stamp Act. The pugnacious, heavyset Marylander was one of the signers of the Declaration of Independence. He was proud to have forced a group of Tory malcontents, including his own father, to swear allegiance to the Continental Congress. Now, a generation later, he had been appointed a Justice of the United States Supreme Court, and was pleased to be called “the hanging judge.”
Chase had earned that sobriquet after the trial of John Fries, the ring-leader of a Pennsylvania Deutsch clan who led an assault on a Federal prison to free a group of his kinsmen. Their crime had been to refuse to pay the property tax passed by the Adams government to fund Hamilton’s army; high Federalists called the resulting riot an act of insurrection and charged Fries with treason. Riding circuit, Justice Chase tried the case with dispatch and sentenced the troublemaker to death by hanging.
Unfortunately, in Chase’s view, for the nation’s need of respect for order—not to mention its ability to raise the revenue to pay for an army—President Adams got cold feet and pardoned the miscreant. Although the pardon was received with great relief by most of the public, the judge thought it had been a craven act by the President that had little to do with justice and much to do with currying political favor with German-born farmers.
Sedition was not treason, a hanging offense, but to the Federalist judge the severe application of the Sedition Act was needed to stem the tide of disorder before it swept disunion in with it. Criticism of the Constitution itself, such as committed in James Callender’s new book, The Prospect Before Us, did not merely bring the government into disrepute—the crime of sedition—but was only a step short of treasonably urging the overthrow of Constitution and government.
Chase had received a copy of the book from an incensed member of the President’s Cabinet. The copy had been sent to Adams by Callender himself, in what could only be an act of calculated contempt. At the frequent stops on the stagecoach to Richmond, Chase read it with rising indignation.
“The reign of Mr. Adams,” the judge read in Callender’s book, “has been one continued tempest of malignant passions. The grand object of his administration has been to calumniate and destroy every man who differs from his opinions. Adams and Washington”—Chase braced himself for the writer’s sacrilege against the departed father of his country—“are poltroons who raise an affected yelp against the corruption of the French Directory, as if any corruption would be more venal, more notorious, more execrated than their own.”
The judge slammed the damnable book shut. “Poltroon” was another word for “coward.” After drawing several deep breaths to calm his heart, Chase opened it again: “You will choose in this election,” wrote Callender, “between a hoary-headed incendiary who has deserted and reversed all his principles, and that man whose predictions have been converted into history. Take your choice, then,” exhorted the seditionist, “between Adams, war and beggary—and Jefferson, peace and competency. Let us, by one grand effort, snatch our country from that bottomless vortex of corruption and perdition which yawn before us.”
Outrageous! Folded in the back of the volume sent to Chase were two clippings. One was from the New York Spectator, signed “Marcellus,” which Chase knew to be a pseudonym of Alexander Hamilton. It ringingly denounced the Callender book’s “falsehood, sedition and calumny” and charged—self-evidently, in Chase’s firm opinion—that its nefarious republican purpose was the destruction of the Constitution.
The second clipping was from the Richmond Examiner. That sheet featured an article signed by Callender protesting the seizure of all copies of the book in Philadelphia by the government in that city. “If the author has afforded room for an action,” Callender challenged, “do prosecute him. But do not take such pitiful behind-the-door measures in order to stop the circulation of the truth.”
“Some truth,” Chase growled, reinserting the clippings that proved the seditionist’s guilt. Apparently, Callender thought he had sanctuary in Virginia, far from the reach of Federal authorities. If prosecution was what the foul-mouthed disunionist wanted, the judge vowed, prosecution was what he would get.
Chase turned to the court clerk assigned to him. The young man had been introduced to him as the brother of John Marshall, the anti-Jefferson Virginian that Adams named Secretary of State to spite the republicans as well as to declare his independence from Hamilton. “Where is the damned rascal now?”
“The Anti-Callender Society, a Federalist group here, reported that he was hiding out in the Jefferson mansion in Monticello. But Callender writes in today’s Examiner that such a statement is a sulphurous lie, and that he is resident in Petersburg.”
“They should have hanged him when they caught him in Leesburg two years ago,” muttered the judge. “Well, we now know where he can be arrested.” He paused to wonder: Why was the culprit Callender so eager to taunt potential prosecutors? Why did he advertise his whereabouts? The judge sensed mischief afoot in this challenge to prosecute, but decided it must be rooted in the colossal arrogance of the press.
June 4, 1800
Three men entered Callender’s cell.
“Governor Monroe sends his compliments,” said the tallest one. “We are to be your attorneys.”
“I cannot afford one lawyer, much less three,” Callender said mildly. He was filled with the satisfaction of having been chosen the Adams government’s primary target, but his pockets were, as usual, empty. Beneath the bravado he had shown since he had been arrested was the realization that he was unique in his jeopardy: angry authorities on both sides of the Atlantic wanted to put him away for the rest of his life.
“The Governor asked the Vice President of the United States if it would be proper to assign public counsel to defend you,” the tall lawyer was saying, “and thereby vindicate the principles of the State of Virginia. Mr. Jefferson replied in writing that it was his wish that you be substantially defended by employees of the State of Virginia.”
From that Callender understood this case was not primarily about an individual ve
rsus the law. It was about the State of Virginia against the Federal government in Washington. “Do you all work for the State?”
“I am Philip Nicholas,” said the tall one, “Attorney General of the State of Virginia. This is William Wirt, clerk to the House of Delegates. We will represent you on behalf of the State. And this is George Hay, a private attorney working pro bono publico.”
Callender thought he recognized the third man. “We’ve met before at Monroe’s plantation.”
“Governor Monroe wanted me to tell you,” the youngest and huskiest of the three said, “what he has made clear to the press throughout Virginia. That is, although this case presents a clash between State and National authority, Governor Monroe will not interfere with the orderly enforcement of the Federal Sedition Law in the Old Dominion.”
Callender was well aware what that meant. His challenge to the Federalists to prosecute had been accepted, and Virginia would allow the Federalist judge and a Federalist prosecutor to choose a jury of twelve Federalists to try him. Both Richmond and Washington, for quite different reasons, were looking forward to a conviction.
“I’m glad sedition is not a hanging offense,” Callender said, forcing a smile. “What is my exposure?”
“If found guilty,” the Attorney General replied, “you could be sentenced to jail for at least as long as the Act is in force. The Sedition Act, unless extended by the next Congress, expires on the day this President’s current term of office ends.”
“That’s ten months from now,” said Hay. “You face that long in this jail if Jefferson wins the election. If you’re found guilty, however, and if the judge gives you a longer sentence—and if the Federalists win this fall—there’s no telling at this moment how long you’ll have to serve.” He did not seem troubled by that prospect.
The Scot had been assured by Beckley that when Jefferson became President in ten months’ time, he would veto any attempt to extend the odious law. Callender and anyone else convicted of sedition would be pardoned, he was told, and any fine remitted. But if Adams won re-election? “No telling how long” could mean a long, long sentence. Adams was known to be a vindictive man with a meddlesome wife who despised his detractors.
He chose not to think about that. Callender had written what he had written knowing the possible consequences, crossed his Rubicon and was prepared to make whatever personal sacrifice was necessary to place a great man in the seat of power. Callender may have come by his citizenship slightly fraudulently, but the United States was his country now. He felt a certain nervous satisfaction in taking an action that, one day, patriots would say was honorable, even noble. His sons would all be proud of him.
“And there could be a fine,” added Attorney General Nicholas. “Justice Chase is very heavy-handed with the imposition of monetary penalties. He has put two republican editors in jail so far this year and fined them each over a thousand dollars. It bankrupted their publications.”
Callender nodded grimly; one of Chase’s convicted editors was his friend Thomas Cooper. But Cooper told him that Nicholas had subsequently bought a hundred copies of his latest tract, Political Arithmetick, to distribute to county committeemen. Monroe’s men took care of vulnerable allies. “You know I don’t have any money.”
The clerk of the Virginia House, Wirt, whom Callender knew to be close to the aged Patrick Henry and to James Madison, suggested in a low voice that the republicans had friends who would pay any fine. Callender took that to be a guarantee.
As the attorneys left the cell, Monroe’s man Hay remained behind for a moment. “The Governor wanted you to see a note he received about you the other day.”
Callender took up the papers and recognized Jefferson’s handwriting, so familiar to him now. “I know that sometimes it is useful to furnish occasions for the flame of public opinion to break out from time to time,” Jefferson wrote Monroe, “and that that opinion strengthens and rallies numbers in that way.”
The Scot swallowed. Not just in his words, but in his person, the occasion of Callender’s trial was to be the spark to ignite what Jefferson, with his usual eloquence, called “the flame of public opinion.” He asked the strapping lawyer if he would take a message back to the Governor to pass on to his famous friend, whom he knew to be in Richmond that day. He wrote it out on a sheet of paper, folded it and told the Governor’s aide to read it aloud.
“ ‘He who cannot submit to a few years of incarceration for the good of his country,’ ” read Hay, “ ‘degrades the Dignity of Man.’ ” At the cell door, he turned to say, “Mr. Callender, it is an honor to defend a true patriot.”
The writer turned back to his cot and sat down heavily. He was profoundly moved. Friend and foe had called him many things, but nobody in Scotland or America had ever called him “patriot” before.
June 5, 1800
A regiment of Virginia militia was assembled in the Common outside the jam-packed Richmond Circuit Court, standing at ease in the springtime sun. This unit of State troops, made up mainly of Federalists, was dispatched on Governor Monroe’s orders, to prevent any provocation inside that would enable the U.S. Supreme Court’s Justice Chase to call for Federal troops. Chase had heard that Vice President Jefferson was in the city, taking an interest in the proceedings but evidently not inclined to show his face at the trial that pitted Federal power against the arrogant nullifiers of Virginia.
Chase saw John Marshall dismounting and tying his horse to one of the many posts outside the courthouse. Adams’s Secretary of State was a good Federalist and rival of Jefferson in the Old Dominion, but it was widely known that Marshall had opposed the Sedition Act. Chase would teach them all a lesson in order, the law and the need to bow to central authority. Chase nodded a greeting to his fellow Federalist; though he considered Marshall a pettifogging weakling, he was pleased to see an observer with legal training who could report to the President how the cream of the Virginia bar was taught a lesson in the new Federal law.
The Justice wedged his large frame into the seat behind the raised bench, set his wig on his head and surveyed the spectators. They were a motley throng, some well dressed in knee-britches and shoes with buckles, others in farmers’ dusty garments. His purpose was not merely to silence a single disunionist editor. He intended to send a clear message to the farthest borders of Virginia that sedition would be prosecuted to the fullest extent of Federal law, defiant State resolutions threatening interposition notwithstanding. He crooked a finger at the marshal, who brought him a list of the names of the panel selected to try Callender. In a low voice, he asked, “Any of those creatures called republicans on it?”
The court clerk, John Marshall’s brother, paused. “I didn’t discriminate, Your Honor.”
“If there are any of that description, strike them off. We’re going to teach the lawyers of Virginia the difference between liberty and the licentiousness of the press.”
The clerk explained that his search for jurors had taken him to plantations up to twenty miles outside Richmond, and he was sure the panel was made up of good Federalist citizens. He regretted that only eight had shown up that day. Chase called them in.
Wirt, one of the defense counsels, rose to request that he be permitted to examine the jurors for prejudice against the accused. Chase shook his head; he could not afford to lose a juror. “Submit your interrogatories to me,” he ruled, “and I’ll see if they’re in order.”
The defense counsels were dumbstruck. The court clerk looked over to his brother in the back of the room; the Secretary of State shrugged at the unprecedented procedure. Chase swore in the jury and nodded to the prosecutor to read the indictment.
“James Thomson Callender, by his writings attached hereto,” read the prosecutor, Thomas Nelson, “has maliciously defamed the President of the United States, John Adams. The accused is a person of wicked, depraved, and turbulent mind and is disposed toward evil. He has written and caused to be published these words with the bad intent of bringing him into contempt, and to
excite the hatred of the people against him and their government.”
He then read out twenty selections from Callender’s book The Prospect Before Us without naming the book itself in the indictment. That omission, Chase understood, was to make sure that if these selections failed to persuade the jury to convict, twenty more could be introduced at another trial.
George Hay, a defense counsel, rose to object. “Ever since the unhappy prosecutions for libels began in England,” he said, “the whole work has been specifically named in the indictment. In that way, the charge is for one act and there can be but one prosecution. By breaking this up into twenty charges—”
“Overruled,” the judge said.
“If found innocent by the jury,” Hay continued to argue, “the prosecutor could go through the book again and submit new charges, in effect a double jeopardy. If convicted, he could be prosecuted again as soon as he finished his sentence, and kept in jail forever.”
Chase motioned for him to sit down. “It takes very little legal ability to demonstrate that the title of the book need not be recited. The defendant can be tried at some other time for other statements in the book. Proceed with your case, Prosecutor.”
“The Sedition Act,” Nelson told the jury, “requires that I show the defendant to have written these words with ‘bad intent.’ Therefore, when I show that the matter is libelous, scandalous and malicious, it must follow that his intent was wicked and criminal, and you must find him guilty.”
“No,” Hay bounded up again. “That’s presumptive intent, with no standing in law.”
“The malice is self-evident,” Nelson shot back. “This disputatious foreigner writes that ‘the reign of Mr. Adams has been one continued tempest of malignant passions.’ Is this true? What evidence does Callender have it is true? If untrue, with what intention has he published it? Was it not to excite the contempt and hatred of the people against their elected President?”
Scandalmonger: A Novel Page 25