“Don’t anger him,” said Harper. “He wants Governor McKean to appoint him Chief Justice of Pennsylvania, and he knows McKean wants him to try this case here.”
Cobbett snorted in disgust. McKean was the Jeffersonian judge who tried to silence him years before on a libel charge and was frustrated by an honest jury. After that reprobate was elected Governor of Pennsylvania, thanks to John Beckley’s nefarious organizing skill, Cobbett had declared in Porcupine’s Gazette that he would never live under that foul drunk’s gubernatorial sovereignty. But even after he closed the newspaper and moved his book inventory to New York, Cobbett was being pursued by the bleeding and purging Dr. Rush in the State courts McKean controlled.
“The charges laid against the defendant,” the judge noted, “are that he repeatedly calls the plaintiff a ‘quack’; that he charges him with intemperate bleeding, injudiciously administering mercury in large doses in the yellow fever; that he puffs himself off by styling himself the Samson of medicine; and that he has been murdering thousands of his patients.”
Harper rose to address the Court. “Defendant acknowledges he caused such accusations to be printed in his Gazette, but without malice.”
Cobbett reached up and pulled him to his seat. “Why are you admitting anything? Let Rush prove who wrote it and who published it. Take him months. As for the word ‘quack’ . . .” The defendant rose. “Your Honor, the good-natured advocate of the bleeding doctor”—here he pointed to Moses Levi, the bearded lawyer for Rush—“has kindly saved me the trouble of defining the word ‘quack.’ He has accepted the definition of Joseph Addison of London’s Spectator, who stated a quack to be ‘a boastful pretender to physick; one who proclaims his own medical abilities and nostrums in public places.’ ”
Cobbett brandished a handbill. “Here is an advertisement written by this vainglorious quack. Allow me to read a portion of it. ‘The almost universal success with which it has pleased God to bless the remedies of strong mercurial purges and bleeding for the yellow fever,’ Rush claims, enables him to assure us ‘that there is no more danger to be apprehended from it than from the meazels.’ This was while the bodies of a hundred nineteen people a day who were treated by this quack and his followers were being hauled away in carts to cemeteries.”
“I wouldn’t get into arguing the case yet,” whispered Harper.
“To establish quackery,” said Cobbett, ignoring his counsel, “the man must not only boast of his nostrums, but must do so in publick places. This piece of puffery was published in all the newspapers, given away in the apothecaries’ shops, handed about the streets, and stuck upon the walls, houses and public pumps! Is this not quackery? Does not this demonstrate the truth of the accusation that Rush is a quack—one whose murderous nostrum was the cause of the bleeding to death of your revered President Washington?”
“Now you’ve done it,” Harper complained. “The judge is furious.”
Cobbett was pleased when his other defense attorney, Tighlman, popped up and asked for copies of all the supposed published libels. These might take weeks to gather. He also called on the Court for a continuance, which was required to be granted. The judge, looking toward Rush’s counsel, who was also Governor McKean’s nephew, announced he would set the trial date in due course.
“That should cause that damned quack to possess his soul in patience,” Cobbett said approvingly.
“Stop repeating that word, William,” Harper cautioned. “Rush is a distinguished physician, and ‘quack,’ no matter how you try to justify the word, is a libel.”
“But we never admit that,” countered Cobbett’s other lawyer, who struck the defendant as being more interested in representing a client’s interests. Cobbett had added his Federalist ally Harper to his defense to assure favorable treatment when the case was referred to Federal court, but now that did not seem to be likely. “Mr. Cobbett, just for safety’s sake, have you removed your assets from Pennsylvania?”
“Everything but my printing press, which is too heavy to move, some large pieces of furniture and the unbound pages of my twelve-volume sets of Porcupine’s Works. Otherwise, my wife and children and I are New Yorkers. Is it all right if I return there tonight?”
“The trial won’t be for months,” Harper assured him. “We’ll send for you.”
February 28, 1801
The trial suddenly took place three days later. Cobbett, unaware of the prosecution’s plan, had returned to New York and was not on the scene to lend his vigorous presence to the defense. Richard Harison, a law associate of Alexander Hamilton who happened to be in Philadelphia on other business, heard of the snap hearing and observed the proceedings from the back of the room.
This observer, a former United States Attorney in New York, thought that the corpulent Harper, either from inexperience in the courtroom or eager to curry favor with McKean’s dominant republicans, was giving away his client’s case. Harper not only admitted to the publication from Cobbett’s press but also admitted that Cobbett was the author; worse, he freely acknowledged that the printed accusations were untrue. On top of all that, Harper expressed his high regard for Dr. Rush’s international reputation. He argued only that the libels were not malicious. Cobbett’s other lawyer, Tilghman, vainly sought a delay to bring Cobbett back into court. He seemed at his wit’s end at the tactics of his concessionary co-counsel, who soon became a favorite of the judge. At one point, observers could hear the plaintiff Rush saying to his own lawyer, “No, I’m not paying a fee to Harper.”
The plaintiff’s argument was all but taken over by the judge. He addressed the jury with a summation of the evidence. “Defendant’s counsel has acknowledged that the newspaper allegations against Dr. Rush were false, but not malicious. But these words themselves import malice, and the proof lies on the defendant to show the innocence of his intentions.”
Tilghman stood up and the judge generously waved him permission to speak. “Another ground of defense, your Honor, is constitutional. The subject of this dispute is of public concern because it relates to the health and lives of our fellow citizens. By the words of the United States Constitution, and also of the Pennsylvania Constitution, every man has the right to discuss such subjects in print.”
“The liberty of the press,” responded the judge piously, “ought never to be unduly restrained.” He leaned across the bench. “But when it is perverted to the purposes of private slander, it then becomes a most destructive engine in the hands of unprincipled men. Our State constitution expressly declares that every person availing himself of the liberty of the press should be responsible for the abuse of that liberty.” He turned to the jury. “Offenses of this kind have much abounded in our city. It seems high time to restrain them. To suppress so great an evil, it will not only be proper to give compensatory, but exemplary damages. That will stop the growing progress of this daring crime.”
The associate of Hamilton noticed that the judge looked for approbation to John Beckley, a well-known republican political operative working for Governor McKean, who was in the courtroom conferring with Harper. Smiling, the republican judge added, “I hope no party considerations will ever have place in the administration of justice. I entreat the gentlemen of the jury to banish any thought of party from their breasts.”
March 3, 1801
NEW YORK CITY
“Five thousand dollars!”
Cobbett was thunderstruck not so much at the verdict of guilty—that was foreordained—but at the size of the judgment against him. Slowly, he said to Alexander Hamilton, “That is a sum surpassing the aggregate amount of all the damages assessed for all the torts of this kind, ever sued for in the United States, from the first settlement of the Colonies to the present day.”
“And three thousand dollars in court costs and legal fees on top of that,” reported Harison, who had hurried back with a full account of the proceedings.
“A ruinous and therefore a rascally judgment,” Hamilton agreed. He was familiar with libel law, having s
uccessfully sued the republican New York Argus the year before. That sheet had reprinted an erroneous charge that he sought to silence the Philadelphia Aurora by arranging for its purchase by Federalists. He had put a journeyman printer in jail for four months as a warning to republicans that Alexander Hamilton, Esq., could not be trifled with in New York courts. In the back of his mind, however, was the idea of starting a newspaper in New York City that could attack Jefferson, who would take the oath of office on the morrow. He might switch positions soon, as an ethical lawyer could, to champion liberty of the press.
In Hamilton’s judgment, Cobbett was clearly guilty of libeling Rush; “quack” was arguable, but “murderer” stepped over the line. The British subject, however, had a right as an alien to be tried in Federal court. And certainly the fine was both unprecedented and outrageously vindictive.
It did not surprise Hamilton that republicans like McKean, once in power, would behave no differently than Federalists did when under newspaper attack. But he gave them credit for being shrewd enough to avoid a Federal sedition law, which pitted government against the individual. Jefferson, he assumed, would rely on State laws of libel to put the anti-Administration press under pressure from maligned republicans. That would be a more popular way of suppressing criticism of government officials.
“I should never have announced the closing of Porcupine’s Gazette in Philadelphia,” Cobbett grumbled. “Now that they are relieved from all fears of my future writings, the dastardly wretches at last ventured on the execution of their revenge. So much for your laws about liberty of the press.”
“I never thought much of fine declarations in a Constitution that ‘the liberty of the press shall be inviolably preserved,’ ” Hamilton said frankly, recalling his argument with Madison about including it in an amendment. “It’s impracticable. The security of the press must altogether depend on public opinion, and on the general spirit of the people and the government.”
“In that regard, your lawyer Harper did you no good service,” Harison told Cobbett. “He and John Beckley, McKean’s man, were constantly conferring.”
Hamilton remembered Beckley well. He suspected that he was the Jefferson apologist, years before, who passed the Reynolds dossier to James Callender, probably on James Monroe’s orders and with Jefferson’s connivance. The commonality of their enemies made him sympathetic to Cobbett and eager to save him from financial ruination.
“Harper, that walking ball of tallow streaked with lampblack,” the editor of the now-defunct Porcupine’s Gazette was raging, “has gained the popularity of the new government by traducing his client. He made certain I would not be present to defend myself.”
“That’s what happened, “ Harison confirmed. “All three referred to you as a scandalmonger.”
“They accuse me of being given to scandal,” Cobbett snorted. “If I had published one-hundredth part of the anecdotes Harper supplied me with, I should have set the whole city of Philadelphia together by the ears.”
Hamilton turned to his gray-haired partner. “Was any of Mr. Cobbett’s property in Pennsylvania seized after the judgment?”
“Yes, there was an immediate auction, sir. Household furniture, a device for cooking outdoors—”
“An excellent roasting jack,” Cobbett noted glumly, “which I should have brought with me.”
“And a complete printing press. The total raised and claimed by Rush was six hundred dollars.”
“What about the works on the press, the thousand copies of twelve volumes of my collected works? That’s the summation of a lifetime’s writing.”
Hamilton, who had been informed beforehand by his law partner, knew that news would be painful.
“I’m afraid, sir, it was all sold off as waste paper and destroyed.”
The editor slumped in his chair, benumbed at the atrocity. Hamilton, who had high regard for the sanctity of an author’s pamphlets and books, knew better than to try to comfort the man. After an interval to let Cobbett collect his thoughts, he changed the subject.
“I take it you do not have eight thousand dollars in the bank,” he said. “What about the contents of your bookstore here?”
“Perhaps the inventory is worth half of that.” The editor could not get over Rush’s vindictive act. “Waste paper!”
“You have friends who will want to come to your aid, Cobbett,” Hamilton said. “Not overtly. Through a discreet intermediary, I could arrange a flow of funds that would pay your debt.”
He had in mind the British Minister, Robert Liston. Certainly the government of Great Britain, whose interests had been stoutly defended for years by this fearless loyalist, should be ready to arrange for his succor in his hour of financial peril. The rescue would have to be done secretly, lest Cobbett appear to have been a paid agent, as the republicans had long claimed and which the newsmonger had steadfastly resisted. If the money passed through other hands, Porcupine himself need not know its source. Hamilton would take no fee for this, but presumed that Cobbett’s advice would be helpful in bringing to birth the newspaper of Hamilton’s own. He did not offer him the editorship of the New York Evening Post because Cobbett wanted to return to England to start anew. Like Hamilton, this embodiment of John Bull had lost his American crusade; Jefferson and the French had won.
The editor snapped out of his benumbed state. “To say I do not feel this stroke, and very sensibly too, would be a great affectation. But to sink under it would be an act of cowardice.”
“Nobody would accuse you of that,” Hamilton assured him.
“Callender would, but that spiteful viper counts for nothing now that the Outs are the Ins. I warned him about Rush and his kind, but he let those butchers bleed his poor wife to death. Today in his jail the wretch may think he is a hero to the Jeffersonians. But he’ll soon discover that the Italian, Machiavelli, was right—that only a fool counts on the favor of princes.”
Hamilton did not agree. It pained him to think how James Callender, the only pamphleteer to claim his revelations about Maria Reynolds were a mask for financial dishonesty, would now be freed and lionized by grateful republicans as a martyred loyalist. As with the Spittin’ Lyon, his stupid jailing and inspired railing had helped turn public sentiment against Federalists everywhere. Were Callender not a scrivener and an immigrant, he would rate high appointment by the republicans; even so, he would surely be rewarded for hatchet work savagely done and nearly a year’s incarceration suffered.
Cobbett rose to his full height, towering over Hamilton and his partner, and related a story. “I knew an Englishman in the Royal Province of New Brunswick, when I served in His Majesty’s forces up there. He had a very valuable house, which was, I believe, nearly his all, and one day it burnt to the ground. He was out of town when the fire broke out, and happened to come home just as it exhausted itself. He came very leisurely up to the spot, stood about for five minutes looking steadily at the rubbish, and then, stripping off his coat, said, ‘Here goes to earn another!’ and immediately went to work, raking the spikes and bits of iron out of the ashes.”
Cobbett, shoulders squared, walked to the door of Hamilton’s office. “This noble-spirited man I had the honor to call my friend, and I shall follow his example.”
Chapter 28
March 5, 1801
ALBEMARLE COUNTY , VIRGINIA
Callender was free. His release juft two days before came on schedule, like the birth of a human child, nine months after his jailing began. He was freed in time to savor the happy event for which he had labored so long and suffered so much: the inauguration of Thomas Jefferson as President. He felt, as Tom Paine had written, “We have it in our power to begin the world all over again.”
The talk about an attempted usurpation by Burr and the defeated Federalists had not overly worried him. Governor Monroe, Callender was certain, would have mustered his militia and marched on the new capital, just across the Potomac, at the first sign of the denial of the people’s will. Monroe was not a political le
ader to be trifled with: he had hanged twenty-five of the slaves involved in the Gabriel insurrection, disregarding Jefferson’s suggestion to deport the rebels. Callender, though an abolitionist when in Scotland, far from the problem, had come into all-too-close contact with one of those insurrectionists in jail. That exposure to the reality of race war brought his views closer to those of other white Virginians toward the threat of African speculators in fire and blood.
What did worry him was the $200 fine he had been forced to pay before being released. The friends of Jefferson who had pledged to raise that money to pay his fine had reneged. He had cut back on food and rum, denied himself a decent suit of clothes and even purchased the cheapest kind of writing paper to put that sum together to send to Leiper for his children’s board. It was as if the jail had charged him rent; the need to buy his freedom had wiped out those savings.
Duane in Philadelphia, no longer a fugitive from the Sedition Act, had promised to take a hundred copies of The Prospect Before Us, but was failing to advertise them in the Aurora and could not afford to pay Callender for their cost. Nor had he been paid a farthing for all the newspaper articles published under his name in the Richmond Examiner, the Aurora in Philadelphia, and in Matt Lyon’s papers in Vermont. He was strapped and urgently needed to get that $200 back. The republicans had promised it to him. His nine months of lost freedom could never be repaid, but a return of his money was the least they could do.
That reminded him of the woman who surprised him with her visit to his jail the month before. Maria Reynolds, with her striking looks and proud bearing, wearing a dress and complex hat of the best British make, had appeared at the prison and had been ushered to his writing apartment. She said she had returned from England the year before, placed her daughter in a seminary and had become housekeeper to a fine doctor in Richmond. Callender had been uplifted when this elegant lady—he was more certain than ever she was a lady, and not the whore Hamilton had made her out to be—told him she had been reading his articles and wanted to pay her respects to an unjustly imprisoned patriot. He remembered every word she said in that visit, especially her invitation to call on her when he was released.
Scandalmonger: A Novel Page 31