“If you would like to attend the trial, Mrs. Clement,” said Van Ness, “I would be pleased to make sure you are seated where you can hear all the proceedings.”
Chapter 50
July 17, 1803
RICHMOND
Callender knew his drinking limit. He could down one bottle of rum in a day without falling down. He would stagger a bit and his tongue would be too thick for his words to be understood, but he could manage to get from the printing shop to his room on his own, especially in the light of a summer’s evening.
He finished the last of his bottle with a small bit of food at a lonely dinner at the tavern where he and Maria customarily met to talk and dine. He spread his hands on the table, leaned his heavy head forward and prepared to push himself into a standing position when he heard a couple of voices coming at him.
The voices were friendly, which surprised him a little because when he looked up he hazily saw George Hay, the Monroe aide who defended him at the sedition trial and later attacked him with a club, and a man who looked like Peter Carr, Jefferson’s nephew whom he had observed more than once at one of the infamous black dances. A third man, a big fellow, he did not recognize and was in no condition to remember his name when he said it.
They brought their own bottle to the table and said there was no reason for them all to be enemies. Callender, though suspicious, agreed to that. They poured him a drink and he said no, he had reached his limit, but he toasted their health with an empty glass. Maria would have liked to see that.
Next he knew, they were talking about business and Callender complained about Henry Pace owing him, $1,800. They were partners, and the writer was responsible for the success of the Recorder, but the printer had invested the capital and kept a tight fist on the profits. His table mates agreed that was unfair. They went on and on about the 80 million francs being paid to Napoleon for all the land west of the Mississippi, and Callender was not so sure the wilderness was worth it. He said he could not remember how much it was in dollars and held out his glass, which was refilled.
A while later he made to get up and go home but could not push himself up. So he stayed, silent, drinking with his companions, half-listening until the big man had a splendid suggestion that they go fishing. Callender perked up at that. He liked to fish in the shallows of the James River, he told them as best he could, because the water was warm and the fish were biting in the evening and the morning, whichever this was.
He let them help him off the bench, through the tavern and onto the road outside. Several strangers passed by and, weaving forward, he waved cheerily at them, saying “Fishing.”
Time slipped past during which he thought he saw Henry Pace’s angry face arguing about the money, but he may have imagined that. Then he heard the buzz of insects, smelled the river water, and felt the hard board of wood under his seat. He was in a rowboat, going fishing. What a fine idea. Callender wondered what he would do for a pole and a string and a hook. Only one man was with him now and he was rowing out into the shallows. Callender had the urge to wade out into the warm water, which he knew would only come up to his hips. He took off his shoes.
His friend helped him overboard. The mud felt wonderful in his toes and the water was hardly above his knees. To escape the mosquitoes, he waded out further and ducked under the water for a moment. That refreshed him a little and he looked about for the rowboat, but it was dark and nowhere to be seen. He hoped the fellow would not get lost. He was up to his waist and, arms extended, relaxed his weight onto the welcoming black water and felt himself happily passing into a dream.
July 18, 1803
The lawyer from New York peered through the shuttered window of the Richmond Recorder and could make out a man inside in printer’s apron who seemed to be counting a large mound of type. He rapped on the shutter. The man—young, in a begrimed apron—unlocked the door of the newspaper.
“We’re out of business,” he said. “Go away.”
“I am looking for Mr. James Callender,” the lawyer said. “I was told he is the co-owner of this establishment.”
“You were a friend of his?”
“I am associated with Alexander Hamilton in a legal matter in New York.”
“You just missed him,” said the printer. “He’s supposed to have drowned yesterday.”
Richard Harison took a step back. “What do you mean, ‘supposed to have drowned’? Is Callender alive or not?”
“Oh, he’s dead all right, and the whole town couldn’t be happier. They hated the little Scot immigrant, especially the plantation owners around here. They hated to have to read him.”
“You say he drowned?”
“In three feet of water, over at the James River, if you believe that. Ask the coroner down the street in City Hall. They had the inquest this morning, lasted all of five minutes. They wanted him in the ground in a hurry.”
“Who’s ‘they’?”
“He had enemies. You’re not the first fellow from New York come down here asking after him. The Federalists up your way hated him for all the years he made President Adams furious. The republicans down here hated him for digging up the truth about President Jefferson and Black Sally. You here with a libel charge? You’re too late.”
“It does have to do with seditious libel,” the lawyer said. “Three feet of water, you say? You can stand up in that.”
“He was drunk, they say, too drunk to get up.”
“You don’t believe that, though.”
“Callender was always half-drunk, even when he was writing, and never drowned himself before. That man could hold his liquor.”
The lawyer wanted to ask about the other fellow from New York asking after Callender, and about who discovered the body of his witness, but the printer closed the door.
He walked down the main street of Virginia’s capital to City Hall, identified himself to the coroner as Richard Harison, Esquire, former United States Attorney in New York, and asked the cause of death and whereabouts of the body of James Thomson Callender.
“The damn scandalmonger was a drunk,” the coroner said, “and booze finally killed him. No doubt about it. He was wandering the streets here late yesterday, bottle of rum in his hand, bothering the good people on the street in front of the tavern. A dozen folks could swear they saw him drunk last night.”
“The cause of death?”
“Lungs filled with water. He staggered off near the river, fell face down and that was the end of him. Burial took place this noon at the Methodist church, where the Scots go.”
“Who brought him in?”
“Couple of kids fishing, spotted his hat in the water, then the body.”
“Any bruises about the head?”
The Richmond coroner, a tall man, rose to his full height. “And what is your interest in the deceased?”
“I am a law associate of Alexander Hamilton in New York. We were interested in bringing Mr. Callender to New York to appear at a trial to testify as a witness in a seditious libel action. You did not, I take it, examine the body for evidence of foul play?”
“Of course I did. Callender was a notorious drunk. He passed out and fell on his face in the water and drowned. He lived on mud and died in mud. I held my inquest and it’s closed.”
“Who identified the body?”
“I did. Know that mean face anywhere, even all bloated the way it was. Doctor bled him but he was long gone.” He paused before dismissing his Northern visitor. “And why should Alexander Hamilton, of all people, be interested?”
“A matter of principle. Did he leave a will, or any documents at the bank or with any friend?”
“No. Died intestate. Didn’t have anything to leave anyway, except a claim against his partner, and Pace is probably out of town already.”
“Where can I find the place he lived?”
“You can look, but you won’t find much. He lived alone in a rooming house with no other roomers. I hear there was a fire there this morning, destroyed all his
things.” The coroner volunteered a little more information: “Some talk of Callender being a suicide. He was pretty miserable, his own kids hating him, everybody sore at him. I didn’t go into that, though, because it only makes things awkward at the funeral.”
“Who was at the funeral I could talk to?”
“Meriwether Jones, editor of the Examiner, was there. He’ll do an obituary. Dead man’s partner, Pace, never showed up. I expect the Recorder won’t publish any more.”
Harison made to take his leave, but as a seeming afterthought, added: “I’m told another fellow from out of town was asking for Callender the other day. Perhaps I know him. An attorney, too?”
The coroner stared at him stonily and did not respond.
At the Examiner printing shop, Harison found Jones. He was a mildlooking man not as censorious of Callender as a competitor so personally vilified might be expected to be.
“He was endowed by nature with the most admirable talents,” said the rival editor, “including an unconquerable bias toward political discussion.”
“What made him so mean?”
“Persecution both in his native country and in America seems to have soured his temper,” said Jones. “That produced the falsehood, detraction and personal abuse that more or less characterized all of his writings.”
“How did he meet his death?”
“Some say suicide. For the past week or two, Callender threatened to end his existence by drowning himself. It could be that in an intoxicated frenzy, he put a miserable end to a miserable life.”
Harison caught the skepticism in his tone and said, “But you don’t believe it was suicide. Or an accident.”
“If you want my opinion,” said Meriwether Jones, “I think he was murdered. His monstrous partner, Henry Pace, cheated him and had a man drown him lest he collect what he was owed.”
Harison took that to be the story the republicans would adopt if the explanation of an accident was met with skepticism. The death of their most dangerous tormenter would be blamed on suicide or murder by a partner motivated by money. “What about the fire that destroyed his room? And the absence of any will or personal effects, or documents he may have been assembling to use in articles?”
The Examiner editor shrugged; he had no answer for that.
Chapter 51
July 21, 1803
CLAVERACK, COLUMBIA COUNTY, NEW YORK
The bailiff called out the name of the cafe at trial as “In the Great Cause of the People versus Harry Croswell.” But Maria Lewis Reynolds Clingman Clement, clothed in a decorous black dress and her anonymity, and seated in the tenth row of the county courthouse, knew it in reality to be Jefferson versus Callender.
“May it please the Court,” said William Van Ness, co-counsel with Alexander Hamilton for the defendant Croswell, “that James Thomson Callender, of the State of Virginia, is a material witness for the defendant. Without the benefit of his testimony, we cannot safely proceed to trial.”
The judge was Morgan Lewis, Chief Justice of the State of New York, a republican appointee of Governor Clinton. He asked, “Where is this witness?”
“Until a few days past, Your Honor, we had good reason to believe that Mr. Callender would attend as a witness at this Court. We expect to be able to procure the voluntary attendance of this witness at the next circuit court in two months’ time. He will bring with him two letters from Thomas Jefferson, now President of the United States, to the said James Thomson Callender, wherein Mr. Jefferson expressed his approbation of a certain publication then about to be printed by Callender.”
“What do you expect to prove with this absent witness, and with those letters, if such exist?”
“We will prove,” Van Ness told the judge, “that Thomas Jefferson, Esquire, well knowing the contents of said publication, called The Prospect Before Us, paid to Callender the two several sums of fifty dollars. The first to assist him prior to publication, and the other subsequent thereto as a reward, showing his approval thereof.”
Van Ness held up a copy of the Callender pamphlet. “In this publication that Thomas Jefferson caused to be published, George Washington, late President of the United States, deceased, is charged in effect with being ‘a traitor, a robber and a perjurer.’ John Adams, late President of the United States, is herein expressly declared to be ‘a hoary-headed incendiary.’ ”
Some jurors moved uncomfortably in their chairs and looked at one another. The judge’s expression remained impassive. “And what would the testimony of your witness and the production of his letters be intended to prove, counselor?”
“It will prove the truth of the statement we are prepared to stipulate was printed by the defendant Croswell in his newspaper the Wasp,” said Van Ness. “We will prove that Jefferson paid Callender for calling Washington a traitor and Adams an incendiary. By so proving the truth of that printed statement, we will demonstrate that the defendant Croswell did not, as the indictment states, ‘most grossly slander the private characters of men who he well knew were virtuous, to the great scandal and infamy of the said Thomas Jefferson, President of the United States.’ ”
“Truth is not a defense against libel in common law,” Judge Lewis declared. “That English common law, so clearly and forcefully expressed by Lord Mansfield in the case of the Dean of St. Asaph, is the law of the State of New York. The testimony of your witness, even if produced, would be irrelevant. Therefore, application for delay is denied.” He turned to the State Attorney General. “Let the prosecution begin.”
“May I ask what brings a beautiful lady like you to listen to this case?” The man seated on Maria’s left was idly curious.
“I had nothing to do today,” she replied, “and I heard that General Hamilton will speak. And you?”
“I represent this district, Columbia County, in the State legislature. The Federalists have a bill pending to make it harder to prosecute libel, and I’m to speak against it next week. We republicans are now a majority, you know.”
She nodded politely, feigning womanly ignorance about politicks, and turned to listen to the Attorney General make the case against the press.
“We contend that the rights of reputation are as sacred as those of property,” said Attorney General Spencer to the Court, “and it is the duty of all to equally respect both. The common law of England is the basis of the laws in force in the State of New York, congenial to the spirit of our Constitution. That law, laid down as Your Honor reminds us by Lord Mansfield, holds that libel, slander and calumny are breaches of the peace—whether or not the facts they contain be true or false.”
He turned to the jury, his longtime friends and neighbors, which Maria had been told by Burr was the main reason this venue was chosen. “I trust the day is now arrived in which, by your good judgment, every citizen will lay himself down with the pleasing consolation that his character, as well as his property, his peace of mind as well as his family, are equally protected by law.”
Spencer was able to move quickly through the facts in evidence because the essence of his case had been freely admitted, even asserted, by the defense: Croswell had, indeed, published and sold the edition of the Wasp that contained the statements cited in the State’s indictment. Those words, the Attorney General argued, defamed and sought to bring into public contempt two Presidents of the United States, thereby breaching the peace and producing disorder. He quoted Britain’s Lord Bacon: “The frequency of libels is a sure forerunner of tumults in a state.” It was for the jury to recognize those undisputed facts and—contrary to the miscarriage of justice in the Zenger case—to listen to the charge of the judge on the law requiring conviction in this case, which could not be clearer.
“A libel is punishable criminally not on the intent of the perpetrator,” Spencer told the jury, “for that is no ingredient of the crime, but simply because holding our leaders up to scorn and blackening their names breaches the peace. Were a man to knock me down, it would be no defense to say he did not mean to hurt me.
An unlawful act implies a criminal intent. A libel, whether true or false, exposes a public man to public hatred and invites disorder. Indeed, all the venerable sages of the law—Lord Coke, Black-stone—have made clear that ‘the greater the truth the greater the libel.’ If falsity be not the offense, then truth cannot be the justification.”
He pointed to the defendant Croswell, seated between Van Ness and Hamilton. “A libeler creates a tribunal unknown to the law of the land. In his self-erected jurisdiction, the accuser, judge, jury and executioner may be united in one malignant wretch. The first notice of the proceeding given to the unfortunate accused, in this worst of inquisitions, is the publication of the sentence in the newspaper. Is this freedom of the press, the boasted prerogative of a free country?”
He walked to the defendant’s bench. “I did indeed read a statement by one of these calumniators by trade, Callender by name, that ‘public men were fair game.’ ” He stared not at young Croswell, the defendant, but at Hamilton. “If that principle of the scurrilous Callender becomes the maxim of the land, it will force all men of merit to quit the walks of public life. Why? To save their lives. Because calumny and slander, propagating injurious reports—whether true or false—plant and nourish the seeds of anger, create that ferment and excite those passions that provoke to personal hostility and acts of violence.”
. . .
“That’s what happened to Hamilton five or six years ago,” the legislator whispered to Maria. “I don’t see how he can defend it now.”
“What was that about a Zenger case?”
“It’s when a jury went beyond the facts, ignored the judge’s charge and took the law in its own hands. The Attorney General wants to make sure it doesn’t happen in Columbia County.”
“It is asked, however,” Spencer said, to anticipate a defense argument, “by defenders of the so-called liberty of the press—are we not to know by whom we are governed? Yes, I answer, but to obtain this knowledge, calumny and abuse, slander and detraction, are by no means necessary.” Spencer pointedly turned away from Hamilton and toward the spectators. “We want to fill our offices with the most virtuous characters. But we all know that even the best of these have their failings, their little foibles, and—as they are men—at times their occasional sins.” Hamilton remained expressionless, toying with a quill at the defense table.
Scandalmonger: A Novel Page 48