“You cannot prove bad intent by merely presuming it. That flies in the face of the United States Constitution.”
“If I may continue without interruption,” Nelson replied, with a nod of approval from the bench, “the Sedition Act also introduces into the law the defense of truth. That means the defendant Callender must prove the truth of each and every one of his libelous statements.” Chase was delighted with that argument; no prosecutor in his previous sedition trials had thought to use it. “It is not for the government to disprove; it is for the libeler to prove the truth of his libel.”
“But that turns on its head the presumption of innocence—”
“Sit down,” Chase ordered the heavyset counsel. “Prosecution, continue.”
“He can never prove the truth of this, for example. He writes in this book—” The judge noisily cleared his throat. The prosecutor looked up at the judge, caught his glare, and checked himself before making the mistake of referring to the whole book. “Excuse me, he writes this sentence: ‘So great is the violence of the President’s passions, that under his second administration, America would be in constant danger of a second quarrel.’ This is the same as saying, ‘Do not re-elect the present President, for he will involve you in war.’ It predicts the future. How can that be true? Therefore, it must be false, scandalous and uttered with malicious intent.”
“It is an opinion,” countered Hay. “A political opinion does not purport to be a fact. It can be neither true nor false.”
“Your objection is irrelevant,” Chase snapped.
“Your Honor,” Hay pressed, “are you ruling that it is against the law to have an opinion, to speak your mind during the Presidency of John Adams?”
“Your argument is disrespectful, irritating and highly incorrect,” Chase told him severely. “I will have no more of that, young man.”
Hay gathered up his papers noisily, stuffed them in his leather envelope, and announced: “Let the record show that I am not being permitted to defend my client, and I protest the injustice being perpetrated here today. I am forced to withdraw from this case.” He turned about, nodded significantly to the press in its section of the courtroom, and stalked out. The audience applauded, until Chase threatened to clear the room of spectators.
The judge had been wondering why the Virginia Attorney General, Jefferson’s man, was letting a young co-counsel carry the defense. Now he knew: Hay had been assigned to provoke him into error and to curry favor with the audience in the room before departing dramatically. The republicans had used the same device in the trial of the editor Cooper, the English radical, in Pennsylvania the previous month. That had been a show the Federalists put on to strike fear into the hearts of Northumberland County republicans, just as his presence in Virginia now was intended to send a message to this State’s friends of disorder and sedition. The senior defense counsel was probably waiting until the summations to make some rebellious assertion; the Court would meet that challenge to Federal authority and slap it down when the time came.
After the prosecutor went through each of the counts, Chase asked the defense attorneys if they had any witnesses to call to prove the truth of Callender’s calumnies.
“The defense calls John Taylor, former United States Senator from the State of Virginia, presently the leader of the Virginia Assembly.”
Chase had heard of him. The white-maned Taylor, one of Jefferson’s acolytes, was a popular figure locally and might be effective with the Virginia jurors. “What do you hope to prove with this witness?”
“The truth of Mr. Callender’s statement that the President was ‘a professed aristocrat,’ the twelfth charge in the indictment.”
The judge was uncomfortable with that. The aristocratic Taylor may have heard Adams identify himself as an aristocrat, even if only in jest. Or perhaps the President, who Chase knew from Revolutionary days was inclined to sound off like a damn fool, had seriously called himself an aristocrat within Taylor’s hearing. He did not want the jury infected with doubt about any of the twenty charges. “Let me see a list of questions you intend to ask this witness.”
“In all my years of the practice of law in the Old Dominion,” said the Attorney General, “I have never been asked for such a list by any judge.”
“You have now, and by a Justice of the Supreme Court of the United States, presiding over a Federal trial in a Federal court about a Federal law. We will stand in recess for ten minutes while you draw up that list.”
The judge was pleased to see that the Virginia lawyer, shaking his head, dutifully wrote out several questions that he planned to ask the witness and brought them up to the bench.
“The term ‘aristocrat’ is one of those vague, indefinite terms,” Chase observed, glancing at the questions, “which admit not of precise meaning, and are not susceptible of proof.”
“Of course you’re right, Your Honor,” said Nicholas smoothly, “but the whole term ‘professed aristocrat’ has a specific meaning. It says plainly that President Adams conducted himself in such a way as to cause others to think him aristocratic—”
“Vague.”
“—or perhaps once identified himself with that specific word to the witness. If so, that would be conclusive proof of the truth of Mr. Callender’s assertion in his book The Prospect Before Us, the single source of the many libels charged.”
Chase read over the count in the indictment and saw an opening. “Your client Callender wrote, ‘Adams was a professed aristocrat; he had proved faithful and serviceable to the British interest.’ Can your witness testify to the truth of that whole charge?”
“We propose to demonstrate that what Mr. Callender reported about ‘professed aristocrat’ was a fact—”
“No, just a part of it. Your witness’s testimony would deceive and mislead the jury. An argumentative justification of a trivial, unimportant part of a libel would be urged before the jury as a substantial vindication of the whole.”
“I respectfully—”
“Such illegal testimony would destroy public faith. No such illegal excuse can be allowed to undermine the law.”
“Then I propose, Your Honor, to prove the first part with this witness, and prove the latter part about the British interest with other evidence.”
“You cannot prove the President of the United States acted in the British interest. Yours is a popular argument,” Chase charged, “calculated to deceive the people, but irregular and subversive of every principle of law.”
“I take that as personally insulting, Your Honor.” The Attorney General promptly took up his papers and strode out of the courtroom.
Justice Chase instantly regretted his use of “deceive,” in effect calling the Attorney General a liar. The republican press would make much of the injudicious temperament of the visiting judge. He was aware that the Constitution had a clause in it giving the House authority to impeach Federal officials, and did not want to become the first judge so attacked if the radical left ever became a large majority in both houses of Congress.
“You still have one lawyer left, Mr. Callender. Mr. Wirt, do you have a witness?”
“I am not inclined to submit questions in advance to the Court about any witness,” said Wirt, whom Chase took to be a Virginia gentleman-politician. “Can Your Honor instruct me as to any precedent in Federal court for a judicial demand for defense questions in advance?”
“Your client is on trial here, not the Court. I take it you have no other witnesses.”
“I would like to address the jury about the constitutionality of the Sedition Law.”
“Denied. It is not for the jury to decide what the law is. The jurors will take their instruction on the law from the judge.”
Callender’s last remaining lawyer turned to the jury. “Not only is this defendant denied the right to present witnesses in his defense. His counsel is not even permitted the opportunity to ask you to consider the unfairness of the law suppressing the right of this man”—he laid a hand on Callende
r’s shoulder—“to write in freedom. I would like to say a personal word about Justice Chase.”
“Take care. The Court has extensive powers of contempt.”
“Justice Chase here took his life in his hands to sign the Declaration of Independence, an act that King George considered treason. Can you strip from this writer, James Callender, the right to free speech won by our patriot fathers in the Revolution?”
A nice touch, Chase had to admit. “You are raising the specter of anarchy, counselor. Do you propose that juries around this nation select which laws they wish to enforce? That would truly undermine our system of justice.”
Callender’s last lawyer started to walk out of the room and leave the editor undefended. That would not do. “Please to proceed, sir. You will not again be interrupted by me. Say what you will.”
But Wirt kept walking down the center aisle and out the door in silent but effective protest. The crowd in the courtroom was becoming unruly, and the judge gaveled them silent, rising from his seat to shout after the departing counsel, “As you please, sir!”
Chase knew that the walkout of all three defense attorneys, seriatim, did not make for a good trial record. Perhaps, in retrospect, he should have made sure his temperament was more judicial. He composed himself. Remembering how Matt Lyon’s jury in Vermont had chosen to ignore the evidence, to ignore the judge’s charge, and instead to vote against the Sedition Law itself, Chase was careful to address the jurors soberly about their responsibilities.
“Hear my words. I wish the whole world to know them. My opinion is the result of mature reflection.” The room became silent. “You are aware of the pernicious Virginia resolution complaining about the Sedition Law. That resolution, whose author we know not”—Chase was sure it had been Jefferson and Madison—“was rejected by all the other thirteen States, excepting Kentucky, which is willing to nullify Federal law and thinks it can secede from the Union. Of course it cannot.”
Chase was speaking not just to the jury, but to the leaders of Virginia in the courtroom, to the press that would carry his words out across the South, and to Secretary of State John Marshall, who had good repute among lawyers. “Just as no State legislature has the right to express an opinion on the constitutionality of Federal law, no jury has the right to nullify that law by refusing to carry it out.”
He reviewed at some length, with careful logic and no bombast, what he considered to be a necessary new doctrine of judicial review. At present, he had to admit the Supreme Court was the least important branch of government. Chase knew that he and his fellow Justices were reduced to hoping that Congress would allow them to meet in a room of the new Capitol. He knew, too, that George Washington, with his neutrality declaration, had set a precedent that it was the President, not the Congress or the courts, who had the power to interpret the Constitution.
Chase hoped, however, that a stronger assertion of the Court’s power would be articulated soon—by a chief who would refuse to drift off on ambassadorial assignments like Jay to London and Ellsworth to Paris. A fulltime Chief Justice was needed, one with enough political influence to make it possible for the Judicial Branch to interpret Congress’s laws, to show the courage to say what the Constitution meant. With the re-election of Adams, that Chief might well be Samuel Chase. Not, of course, with the disunionist Jefferson, who would probably want each State to interpret the Federal compact.
Chase returned to the need to enforce the Sedition Law at hand. He charged the jury: “You must decide first, if defendant Callender wrote the words which you saw in his handwriting and printed under his name. Then you must decide if those statements are false and were intended to defame our President. Whatever you think of the Sedition Act, you must not substitute your judgment about the law for that of the Congress and the President and the Courts. I know you will do your duty.”
. . .
Callender, having played no part in the proceedings, forlornly awaited the jury’s return. He had been talked about but never directly addressed or asked to speak. Because he was far less eloquent as a speaker than as a writer, and because he was a newcomer to Richmond, Jefferson’s attorneys had not sought his testimony. He could understand that, but for once wished he had been born an orator. He sat mute, feeling like the corpse at his own funeral, listening to the preachers and the mourners talk about him in the past tense. The verdict was a foregone conclusion. He would be found guilty, sentenced and fined, the latest martyr to the Sedition Act.
He knew he should be pleased at the way Judge Chase fell into the trap of squelching justice in Virginia. The harsh rulings, the evident unfairness, even the final insult to the jury forbidding them their right to nullify the law—as the courageous Vermonters did—would be used against Adams and in support of Jefferson. And the lashing-back against Federalist injustice would be felt not only in the South, but in New York and Pennsylvania, where voters would surely be discomfited by detailed reports of what Callender hoped would be seen as the present-day version of the Salem witch trials.
Beckley had organized a campaign of letters written from Richmond to leaders in legislatures across the nation, and especially to the Tammany Society in New York, where Aaron Burr was faced with the early election of Presidential electors. Much of the future direction of the young nation hung on the ability of Beckley and Burr to put the right electors in place; Chase’s bullheadedness combined with Callender’s sacrifice here in Richmond would help them advance the Jefferson interest in crucial Pennsylvania and New York.
Yet the courtroom was not his world. He was at a loss sitting isolated in the dock with nary a lawyer sitting near him to offer solace. Now that the first flush of incipient martyrdom had worn off, Callender realized how little he looked forward to going to jail. He had been assured that he would have a private cell with a table and writing materials. Matt Lyon’s son James—a fine, sturdy lad, one of the few honest printers he ever met—promised regular visits to bring him the news and to pick up his copy for publication. On the debit side, he would not be able to go forth on a lonely evening and drink himself into blessed oblivion. Perhaps the coming enforced abstinence was just as well; because he had fallen into the habit of drinking alone, he had promised himself to cut down on the rum.
In the solitude of the crowded courtroom, the Scot found himself thinking about Maria Reynolds. It comforted him to see her in his mind’s eye leaning forward, pouring tea, confiding in the visitor who had believed in her when so few others did. Was she settling down to married life with young Clingman in London? More likely, he assumed, she had already left him for a stronger and more prosperous protector for herself and her daughter. Or would she return to America? He hoped so, and that he would be free to meet her, if only to solve the mystery of Hamilton that still nagged at him.
What possessed the Treasury Secretary to shame his loving wife and family? What moved him to damage forever his hopes of the highest office, with a concocted story of infidelity and blackmail—merely to escape the hard-to-prove charges of financial speculation? His seventy-six-page defense was so excessive as to be irrational; that was not in character for a mind that could write The Federalist Papers with Madison. Years ago, Callender had been gleeful at Hamilton’s confessional folly, but now he wished he could discuss more deeply with Maria the motive for the man’s complicated deception.
That Hamilton’s covering story was a lie Callender had no doubt. He believed Maria and her crooked husband, Reynolds, when they said the Colonel was making relatively small amounts of money unethically, though perhaps not illegally. Most others, including the most anti-Federalist writers, believed Hamilton for a simple reason: no man would so humiliate himself and his family to defend an abstract principle of Treasury integrity.
He started to come at the question through the prism of George Washington, Hamilton’s hero and mentor. To Washington, probity was all. The Scot had heard, though not firsthand, that the President exploded at “that scoundrel Callender” in front of his Cabinet after
a fairly mild criticism in the Aurora about cheating on his expense accounts to the Continental Congress. Why was Washington so sensitive to anything written about his personal finances, when he so coolly brushed aside criticism of his generalship or denunciations of his foreign policy? Perhaps it had a practical aspect, unrelated to vanity or pride. Perhaps the first President felt he embodied the trust of the nation in its leadership, and was fearful that anything that scandalmongers did to sully that personal trust subtracted from the small deposit of legitimacy in the new government.
In that case, figured Callender, with nothing to do but wait for the verdict, what was Washington’s ambition? Obviously not the accumulation of power; the man resolutely turned down a King’s crown. Washington’s ambition apparently had been to conduct a pure Administration, free of partizan strife, free of personal bickering, free of criticism, and certainly free of bribery, theft, or any kind of governmental corruption. His Holy Grail was Good Repute. If Washington could maintain that reputation for public integrity; if by his studied aloofness he could lend an aura of personal majesty to the position of Chief Magistrate, he could then succeed in transferring the legitimacy of executive power to his successor, and that man to the next.
Hamilton must have understood Washington’s concern for his Administration’s good repute. Callender ruminated on the criteria of political reputation: honesty was at the top; morality was at the bottom. For Washington and his acolyte Hamilton, corruption was unpardonable but sin was forgivable. Dishonesty in office struck at the vitals of legitimacy, at the heart of the sovereignty America so violently and recently seized; but the shame of marital infidelity, though it could destroy families, did not shake the foundations of the republic. Callender remembered that Hamilton had made that point in The Federalist Papers, writing about the impeachment of a President—that it had to be a “high” crime or misdemeanor, like treason or bribery an offense against the public, harming the government system itself.
Scandalmonger: A Novel Page 26