“If each of these indiscretions is to be dragged forth into public view the instant they step forth in the public service; if their reputations are to be the preparatory sacrifice for public favor; if their names are to be offered up at the shrine of this Moloch of scandal, they will fly from the public employ, leaving only men without shame.”
The Attorney General walked to the jury box and leaned on the railing. “You will drive the good men from the seats of power and justice. You will place in their stead none but the abandoned, the case-hardened and the callous. Creatures without remorse; lost to all sense of feeling; equally despising and despised, they will use the sacred trust deposited in their hands to barter their nation’s honor for gold or to secure the means of expanding their own power.”
The Attorney General turned back to Hamilton. “Those who argue that the power of libeling is necessary to the freedom of voting will find it ever more endangered. In a republic, it is not the spirit of liberty that we have to keep alive, but it is the spirit of faction—the enemy of our liberty—that we have to repress. I ask the eminent counsel for the defense: do you really want to create a haven for the calumniator, a sanctuary for the civil incendiary who uses as his firebrands scandal, slander and invective, and thereby kindles the flame of party spirit?
“If you do, General Hamilton, the chief of every band, with a servile, hireling press at his back, will vomit out slander on his opponents and panegyric on himself. Every candidate and voter will be the object of abuse. The good, the decent, and the quiet will be driven from our polls. A headlong mob, with the bludgeon and the dagger for their qualifications, will give us tomorrow’s rulers, until the people, worn out with anarchy, will with joy behold some American Bonaparte arise.”
Having reminded the courtroom of old whispers about Hamilton’s secret desire for a monarchy with himself at the head, Spencer again addressed the jury. “These are not the chimeras of a lawless imagination. Would to God that they were. They are the inevitable consequences of a factious spirit, engendered by hate-filled pamphlets and calumniating newspapers in the periodical slanders of the day.”
Matthew Lyon, sitting in the back of the courtroom with his son Jim, didn’t know what to think. He was now a Congressman from Kentucky, having moved west to make his fortune in postal contracts and settlements of the corrupt Yazoo land deal. Because he needed a smart partner, he was in New York to see Aaron Burr to interest him in running for office in Tennessee instead of wasting his time trying to become Governor of New York. Burr was equivocating—Spittin’ Matt assumed he was still more interested in power than money—but told him of this libel trial in Claverack. The former Vermonter, who shared a distinction with Callender of having served time for sedition, brought his editor son along to see how the republicans were now embracing State seditious libel law.
“He makes a powerful case, Father.”
“The aristocratic bastard may win. I never thought I’d be praying for the likes of Hamilton to save us from Jefferson’s men.”
Lyon wondered why Callender wasn’t here. It would be a perfect place for him to make a splash in all the newspapers in the country. Probably couldn’t afford the fare.
“Surely it is not an immaterial thing that a high official character”—Hamilton, speaking for the defense, did not have to pronounce the name of Thomas Jefferson—“should be capable of causing to be printed anything against George Washington, the father of this country. It is important to have it known to us all whether what he said was true or false—whether Washington was a traitor and a perjurer. It is important to the reputation of him against whom the charge is made, General Washington, that it should be examined. It is important regarding the character of the present head of our nation; for if the truth, as stated in the indictment, can be established it will be a serious truth, the effect of which it is impossible to foresee. We stand at the threshold of a glorious triumph for truth.”
“He’s putting Thomas Jefferson on trial here, for God’s sake,” Matt Lyon said to his son. “For libeling Washington. He wants the jury to think it’s not about Croswell repeating Callender’s libel of Jefferson. That’s why Hamilton took this case, to turn it all upside down and make Jefferson the defendant in the public eye. Oh, the dog.”
“Brilliant,” said his son.
“I never did think that speaking or writing the truth was a crime,” Hamilton said quietly, his tone causing jurors and spectators to lean forward to hear. “I am glad the day has come in which it is to be decided, for my soul has always abhorred the thought that a free man dared not speak the truth. I rejoice that this question is now to be decided.” He took a sip of water. “Before I advance to the full discussion of the questions in this trial, let me define the liberty for which I contend, and which the doctrine of those who oppose us are calculated to destroy.”
He began with a concession to establish his reasonableness, a technique Maria remembered in many discussions with him. “In speaking for the freedom of the press, I do not say there ought to be unbridled license. I do not stand here to say there should be no shackles to be laid on such license.” He nodded, as if in agreement, to the Attorney General. “I consider the spirit of abuse and calumny as the pest of society. I know—I know as well as any man here—that the best of men are not exempt from the attacks of slander.”
He pointed to the portrait of George Washington on the courtroom wall, high over the judge’s bench. “Though it pleased God to bless us with the first of characters as our first President, and though it has pleased God to take him from us, I say that falsehood eternally repeated by this band of calumniators and their secret supporters would have affected even his name. Drops of water in long and continued succession will wear out adamant. This libel on Washington, therefore, cannot be endured.” He pointed to his client, the young editor. “Those who exposed the source of the scurrilous attacks upon our late President must not be punished. It would be to put the best and the worst on the same level.”
His voice grew stronger. “I contend for the liberty of publishing truth, with good motives and for justifiable ends, even though it reflect on government, magistrates, and private persons.”
Hamilton noted that the Court had stated that the common law is the basis for our law of libel, and the prosecution had entered into evidence a list of precedents from the English bar. With a sweep of his arm, Hamilton rejected them all.
“The doctrine that truth is no defense is not rooted in the common law. That doctrine originated in one of the most oppressive institutions that ever existed—the Star Chamber. It was a court where oppressions roused the English people to demand its abolition, whose horrid tortures and judgments cannot be remembered without freezing the blood in one’s veins. The source of the doctrine trampling on liberty of the press is foul. It warns us against polluting the stream of our own jurisprudence.
“The Star Chamber was abolished not merely for failing to use the intervention of juries. That cruel court was abolished because its decisions were tyrannical, because it bore down the liberties of the people, and because it inflicted the bloodiest punishments. Shall we today be shackled by its precedents—extraneous bodies grafted on a fine old trunk, rejected in the very country where they were formed?”
Hamilton, without consulting a note, then ticked off six cases before and after the Star Chamber that established justification by truth. “Zenger’s case has been mentioned here as an authority—a judicial decision in a fractious period and reprobated at the time.” He glared at the judge, who seemed to wither in his chair. “The little, miserable conduct of the judge in Zenger’s case kicks the beam supporting justice, just as the popular spirit of inquiry is crushed by a servile tribunal.”
So much for the prosecution’s precedents. He called up a more recent precedent in England’s Parliament not ten years before that established truth as a defense. He noted that even in the much-maligned Sedition Act in America, now lapsed, truth had been established in our law—specifically
declared by a wise Federalist Congress, as a concession to a protesting republican minority—as a defense against sedition.
“To those who say that truth cannot be material in any respect,” he said, voice rising, “I say: No tribunal, no codes, no systems can repeal or impair this law of God, for by His eternal laws the materiality of truth is inherent in the nature of things.”
This was not legal argument, the lawyers and jurors sensed; Hamilton, who had been the most forceful advocate of the nation’s fundamental law, was setting forth in this small courtroom the bedrock moral philosophy on which that Constitution was based. He fell silent, then looked directly at the Attorney General. “I call upon those opposed to us to say what a libel is.”
Spencer stood up and said without hesitation, “A libel is a scandalous publication that breaches the peace.”
“So you say,” said Hamilton, treating the answer by the Attorney General as the rote recitation of a book-learned schoolboy. “My definition is this: a libel is a slanderous or ridiculous writing, picture or sign, with a malicious or mischievous design or intent, towards government, magistrates or individuals. Intent is central. Every crime must include intent. Murder consists in killing a man with malice propense, but killing may be justifiable—even praiseworthy, as in defense of chastity about to be violated.”
Hamilton paused and looked toward his co-counsel Van Ness, as if to consult him on the example he was about to use. “In dueling,” he said bleakly, “the malice is supposed from the deliberate acts of sending a challenge and appointing the time and place of meeting. But natural justice dictates that no man shall be the avenger of his own wrongs, and the law forbidding dueling assumes the malicious intent that makes it a crime.”
“Why did he bring that in? He must be thinking of his eldest son,” said the legislator to Maria.
“I know.” And the tragic consequence of a deadly duel to his daughter, too.
“When a printer, however,” Hamilton continued, “denounces a public official with no intent to breach the peace—without, in another word, malice—there is no crime. When a man breaks into a house, it is the intent that makes him a felon. It must be proved to a jury it was his intent to steal; the jury decides that, not the judge.”
“He’s trying to do what Zenger’s lawyer did,” the legislator told Maria.
“To get the jury to defy the judge on the criminal law. Won’t work with this jury. I know these people, good republicans all.”
“But I thought a judge could overturn a jury verdict.”
“Only a guilty verdict. No judge can reverse a jury’s acquittal.”
“I do not deny the well-known maxim ‘The jury decides the fact, the judge determines the law.’ ” Hamilton gave the maxim first in Latin to impress the lawyers in the room, Maria assumed. “But every permanent body of men, judges included, is liable to be influenced by the spirit of the existing administration.” He faced the men in the jury box. “A jury, on the other hand, is chosen by lot, as each of you know. I freely confess that in difficult cases, it is your duty to hearken to the directions of a judge, and with great deference to his learning in the law. But on matters of intent—on the judgment of malice—that is a combination of fact and law that only you have the right, and thus the power, to decide.”
“I object, Your Honor.” The Attorney General rose. “Does not the Court day after day grant new trials when the jury attempt to decide contrary to the dictates of law? It is the height of presumption in men ignorant of the law to venture on expounding what they do not understand.” He turned to his opposing counsel with a smile. “I have heard in this era, General Hamilton, of newfangled doctrines, that men were born legislators, but never yet have I heard it hinted that they were born lawyers.”
“Damned snob,” Lyon snorted in the direction of Spencer, his fellow republican. “You lose me on that one.”
“Whose side are you on?” asked his son.
“Both. Neither. The bad men are on the right side.”
“The true legal doctrine is this,” Hamilton replied with the authority of the main author of The Federalist Papers. “In the general distribution of power in our Constitution, it is the province of the jury to speak to fact, yet in criminal cases the law and the fact are always blended. The citizen is safe only when the jury is permitted to speak to both. Were I to sit as a juror, as you are today, I would respect the opinion of the judge—but from which I should deem myself at liberty to depart. I would die on the rack rather than condemn a man I thought deserved to be acquitted. Wouldn’t you? This I believe to be the theory of our law.”
Neither the prosecutor nor the judge saw fit to reply.
A door in the back opened and shut. Maria saw a man with a large, stiff envelope tied with red-tape, the mark of an attorney, walk down the aisle and seat himself next to Van Ness at the defense table. There was some whispered consultation; Hamilton slapped his knee in anger. Van Ness addressed the court.
“I am informed by my co-counsel, Mr. Harison, Your Honor, of a sad turn of events. The witness we had hoped to bring before the court to testify to the truth of what Croswell reprinted in the Wasp is dead.”
Harison addressed the judge. “The body of James Thomson Callender, editor of the Richmond Recorder, was found last Tuesday on the bank of the James River. He had been plied with liquor and drowned in only three feet of water under what some on the scene told me they believe to be suspicious circumstances. He was buried the same day. There was no investigation and none of his papers were found at his office, which had been ransacked, or at his home, which was destroyed by fire.”
“What is your contention, counsel?”
“We contend, Your Honor, that there may have been a deliberate attempt to prevent testimony and suppress evidence.”
The Attorney General objected, and the judge ordered the jury to ignore the defense counsel’s speculation.
“Madam, are you all right?”
Maria was pitched forward, her hands over her face. She straightened, eyes reddened, mouth set. James could not be stopped any other way. He was the destroyer who some planters and politicians or a rival newsmonger were determined to destroy. They would say he was drunk and fell out of a boat or committed suicide, but she knew that James could hold his liquor, and he was a strong swimmer, and he was grimly looking forward to exposing half a dozen new scandals. He had no business on the banks of the James River.
She took an envelope from under the folds of her dress and held it in her hand for a long moment. It contained the two letters from Jefferson that Callender had at first stored under his mattress, and then, concerned about foul play, gave her for safekeeping. She stood up and slipped past the legislator into the aisle. She walked down to the defense table past Hamilton and Harison and the defendant and deposited Callender’s envelope in the hand of Van Ness. He recognized her from their meeting at Burr’s house but said nothing to indicate he knew her. She wondered if Hamilton was aware that Van Ness was collaborating behind the scenes with Burr in this case.
All four men at the defense table rose. Van Ness and Harison hurriedly broke the heavy wax seal and opened the envelope to examine its contents and show them to the senior counsel. Defendant Croswell looked confused. Hamilton, before turning to the documents, looked at Maria in welcoming wonderment. The subject of his Reynolds pamphlet looked directly into Hamilton’s eyes, now behind spectacles, much less confident than she remembered them, and nodded curtly. She told him, “You will notice that these letters are originals and not forgeries. Callender was always telling the truth.” Before he could respond, she returned to her seat.
“We have heard that we must guard against the spirit of faction,” Matt Lyon listened to Hamilton saying. “Divisiveness is a great bane to community, and disunion is a mortal poison to our land. All great men consider the spirit of faction to be a natural disease of our form of government, and therefore we must restrain it.”
Lyon knew he was alluding to the writing a decade ago
of Madison, before Jefferson’s anti-Federalist movement shattered the innocent illusion of a polity without partizanship. Madison had been mistaken about that, and thank God he was, thought Lyon, because such sweet civility would have left no room for strong argument and fierce opposition to the all-powerful clique under the sway of Hamilton. Not until he was one of the lonely Outs did that man see the danger of power perpetuated by the Ins.
“We have been careful that when one political party comes in,” continued the famed counsel for the defense, now a minority of a Federalist minority in dwindling opposition, “that victorious party shall not be able to break down and bear away the others. If this be not so, in vain have we made constitutions, for if it be not so, then we must go into anarchy and to a despotic master.
“Against this terrible end,” he said, his voice growing stronger, “there is in our republic an almost insurmountable obstacle: that barrier is the spirit of the people. They would not submit to be thus enslaved. Every tongue, every arm would be uplifted against it; they would resist! And resist! And resist—till they hurled from their seats of power those who dared make the attempt!”
Scandalmonger: A Novel Page 49