Alexander Hamilton (130 page)

However inconsistent his judgment and somber his mood in later years, Hamilton’s mental faculties remained razor sharp. Robert Troup, now a district-court judge, had watched his friend since King’s College days and marveled to another friend that Hamilton “seems to be progressing to greater and greater maturity. Such is the common opinion of our bar and I may say with truth that his powers are now enormous!”
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He was besieged by clients and preferred cases that enabled him to harry President Jefferson. The two men now clashed in an unexpected arena: freedom of the press. Jefferson had long flaunted his respect for newspapers. As president, he had pardoned Republican editors jailed under the Sedition Act and stressed his tolerance for the ferocious barbs flung at him by Federalist editors. When a Prussian minister discovered a hostile Federalist newspaper in the president’s anteroom, Jefferson told him, “Put that paper in your pocket, Baron, and should you ever hear the reality of our liberty, our freedom of the press questioned, show them this paper and tell them where you found it.”
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Jefferson was not quite the saintly purist that he pretended. He wrote to Pennsylvania’s governor that he favored “a few prosecutions” that “would have a wholesome effect in restoring the integrity of the presses,” and by the end of his presidency he was squawking about the newspapers’ “abandoned prostitution to falsehood.”
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Jefferson conducted two high-profile prosecutions of Federalist editors. One was Harry Croswell of Hudson, New York, whose defense Hamilton undertook. Croswell edited a Federalist newspaper called
The Wasp
that had a crusading motto emblazoned across its masthead: “To lash the rascals naked through the world.”
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Writing under the pseudonym “Robert Rusticoat,” Croswell had snickered at Jefferson’s claim that he had assisted James T. Callender’s
The Prospect Before Us
solely out of “charitable” motives. In the summer of 1802, Croswell said of Callender: “He is precisely qualified to become a tool, to spit the venom and scatter the malicious poisonous slanders of his employer. He, in short, is the very man that a dissembling patriot, pretended ‘man of the people,’ would employ to plunge the dagger or administer the arsenic.”
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In another article, Croswell said, “Jefferson paid Callender for calling Washington a traitor, a robber, and a perjurer; for calling Adams a hoary-headed incendiary; and for most grossly slandering the private characters of men whom he well knew were virtuous.”
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These comments tested Jefferson’s reverence for press freedom. The concerns he had expressed about libel prosecutions brought by the federal government against Republican editors under the Sedition Act seemed to vanish when state governors so prosecuted Federalist editors.

In January 1803, a grand jury in Columbia County, New York, indicted Harry Croswell for seditious libel against President Jefferson. The case generated intense political heat, as Federalists flocked to Croswell’s banner. Ambrose Spencer, New York attorney general and a recent convert to the Jeffersonian persuasion, personally handled the prosecution. Although Croswell wanted Hamilton as his lawyer, the latter was committed to other cases and could not participate in the early stages of the defense. Philip Schuyler informed Eliza that a dozen Federalists had called upon him, hoping he would use his influence to enlist Hamilton’s services. Schuyler sympathized with them, telling Eliza that Jefferson “disgraces not only the place he fills, but produces immorality by his pernicious example.”
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By the time the circuit court convened in the small brick courthouse at Claverack, New York, in July, Hamilton had agreed to join the defense team. Because the case touched on two momentous constitutional issues, freedom of the press and trial by jury, he waived any fee.

The gist of Hamilton’s argument was that the truth of the claims made by an author should be admissible evidence for the defense in a libel case. The standard heretofore had been that plaintiffs in libel cases needed to prove only that statements made against them were defamatory, not that they were false. Both Hamilton and Croswell wanted to delay the trial until they could transport James T. Callender to the courtroom to testify about Jefferson’s patronage of his writing. Whether coincidentally or not, Callender met his watery death a few weeks before the trial began. Hamilton was tempted to subpoena Jefferson or at least extract a deposition from him. However, the presiding judge, Morgan Lewis, reverted to common-law doctrine and informed the jury that they “were judges of the fact and not of the truth or intent of the publication.”
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In other words, the jury’s job was simply to determine whether Harry Croswell had published the libelous lines about Jefferson, not whether they were true and sincerely meant. Bound by these instructions, the jurors had no choice but to find Croswell guilty.

In mid-February 1804, Hamilton journeyed to Albany and pleaded for a new trial before the state supreme court. On the bench, Hamilton had a friend and Federalist ally in James Kent but otherwise faced three Republican judges. Hamilton’s speech was so eagerly awaited that the Senate and Assembly chambers emptied out when he spoke. The lawmakers were drawn to the courtroom by more than curiosity: they had under consideration a bill that would allow truth as a defense in libel trials. Hamilton did not disappoint his expectant spectators in his six-hour speech. In arguing for a new trial, Hamilton highlighted the principle at stake, the protection of a free press: “The liberty of the press consists, in my idea, in publishing the truth from good motives and for justifiable ends, [even] though it reflect on the government, on magistrates, or individuals.”
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As a victim of repeated press abuse, Hamilton did not endorse a completely unfettered press: “I consider this spirit of abuse and calumny as the pest of society. I know the best of men are not exempt from attacks of slander....Drops of water in long and continued succession will wear out adamant.”
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Hence the importance of truth, fairness, and absence of malice in reportage.

Only a free press could check abuses of executive power, Hamilton asserted. He never mentioned Jefferson directly, but the president’s shadow flickered intermittently over his speech. In describing the need for unvarnished press coverage of elected officials, Hamilton reminded the judges “how often the hypocrite goes from stage to stage of public fame, under false array, and how often when men attained the last objects of their wishes, they change from that which they seemed to be.” In case any auditors missed the allusion, Hamilton added that “men the most zealous reverers of the people’s rights have, when placed on the highest seat of power, become their most deadly oppressors. It becomes therefore necessary to observe the actual conduct of those who are thus raised up.”
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By spotlighting the issue of intent, Hamilton identified the criteria for libel that still hold sway in America today: that the writing in question must be false, defamatory, and malicious. If a published piece of writing “have a good intent, it ought not to be a libel for it then is an innocent transaction.”
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Hamilton showed how truth and intent were inextricably linked: “Its being a truth is a reason to infer that there was no design to injure another.”
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He conceded, however, that truth alone was not a defense and that libelers could use “the weapon of truth wantonly.”
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And he did not argue that the truth should be conclusive, only that it should be admissible; if a journalist slandered his target accurately but maliciously, then he was still guilty of libel. He noted that the Sedition Act, “branded indeed with epithets the most odious,” contained one redeeming feature: it allowed the alleged libeler to plead both truth and intent before a jury.
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In deciding intent in libel cases, Hamilton also stressed the need for an independent jury instead of a judge appointed by the executive branch, lest the American judiciary revert to the tyranny of the Star Chamber.

In a ringing summation, Hamilton sounded again like the young firebrand from King’s College days and spoke freely from the heart: “I never did think the truth was a crime. I am glad the day is come in which it is to be decided, for my soul has ever abhorred the thought that a free man dared not speak the truth.”
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The issue of press freedom was all the more important because the spirit of faction, “that mortal poison to our land,” had spread through America. He worried that a certain unnamed party might impose despotism: “To watch the progress of such endeavours is the office of a free press. To give us early alarm and put us on our guard against the encroachments of power. This then is a right of the utmost importance, one for which, instead of yielding it up, we ought rather to spill our blood.”
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People who heard Hamilton’s speech that day, which distilled so many themes of his varied career, never forgot his spellbinding message or the mood he cast over the hushed courtroom. James Kent slid a hastily scribbled note to a friend: “
I never heard him so great.
”
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New York merchant John Johnston wrote afterward, “It was indeed a most extraordinary effort of human genius.... [T]here was not, I do believe, a dry eye in court.” Another observer, Thomas P. Grosvenor, confirmed that Hamilton’s speech “drew tears from his eyes and...from every eye of the numerous audience.”
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Chancellor Kent, always an insightful observer of Hamilton’s courtroom prowess, singled out the Croswell speech for his highest encomium.

I have always considered General Hamilton’s argument in that cause as the greatest forensic effort that he ever made. There was an unusual solemnity and earnestness on the part of General Hamilton in this discussion. He was at times highly impassioned and pathetic. His whole soul was enlisted in the cause and in contending for the rights of the jury and a free press, he considered that he was establishing the surest refuge against oppression.
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Even Hamilton’s adversary, Attorney General Spencer, lavished praise on Hamilton’s legal powers, calling him “the greatest man this country has produced....In creative power, Hamilton was infinitely [Senator Daniel] Webster’s superior.”
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Hamilton, ironically, lost the case. Because the four judges were evenly split, with Chief Justice Morgan Lewis opposing him, Croswell could not win a retrial, but neither was he sentenced. As a reward for shielding President Jefferson, Lewis was lionized by Republicans and nominated as the party’s candidate for New York governor six days later. But Hamilton’s arguments in the case prevailed over the long term. In April 1805, the New York legislature passed a new libel law that incorporated the features he had wanted. With this new law in place, the state supreme court granted Harry Croswell a new trial that summer—a belated triumph that Hamilton did not live to see.

In April 1803, President Jefferson reached the zenith of his popularity with the Louisiana Purchase. For a mere pittance of fifteen million dollars, the United States acquired 828,000 square miles between the Mississippi River and the Rocky Mountains, doubling American territory. Hamilton was ruefully amused that Jefferson, the strict constructionist, committed a breathtaking act of executive power that far exceeded anything contemplated in the Constitution. The land purchase dwarfed Hamilton’s central bank and others measures once so hotly denounced by the man who was now president. After considering a constitutional amendment to sanctify the Louisiana Purchase, Jefferson settled for congressional approval. “The less we say about the constitutional difficulties respecting Louisiana, the better,” he conceded to Madison. To justify his audacity, the president invoked the doctrine of implied powers first articulated and refined by Alexander Hamilton. As John Quincy Adams remarked, the Louisiana Purchase was “an assumption of implied power greater in itself, and more comprehensive in its consequences, than all the assumptions of implied powers in the years of the Washington and Adams administrations.”
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When it suited his convenience, Jefferson set aside his small-government credo with compunction.

At first, Hamilton had denied that Napoleon would ever sell the territory. “There is not the most remote probability that the ambitious and aggrandizing views of Bonaparte will commute [i.e., exchange] the territory for money,” he observed.
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Hamilton thought the United States should simply seize New Orleans and
then
negotiate a purchase of the territory with a France bankrupted by war. Perhaps Hamilton was slipping back into the old reveries of military glory that he had nursed under President Adams. Then, envious of Jefferson’s easy windfall, Hamilton belittled the significance of the Louisiana Purchase, contending that any settlement in this vast wilderness “appears too distant and remote to strike the mind of a sober politician with much force.”
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In the end, Hamilton was one of the few Federalists to support the action, which squared neatly with his nationalistic vision. Swapping roles with Republicans, however, many Federalists emerged as strict constructionists and denied that the Constitution permitted the purchase. Beyond legal reservations, they worried that this new American territory would weaken Federalist power, sealing their doom. The new western terrain would be preponderantly Republican and agricultural, and slavery might flourish there. In fact, every state that entered the Union between 1803 and 1845 as a result of the purchase turned out to be a slave state, further tipping the political balance toward the south. Fearful of being overshadowed by an expanding Republican slave empire in the west, some New England Federalists began to talk of secession from the union. Such plans formed part of the context for the Hamilton-Burr duel. If any such secessionist movement occurred, Hamilton, ever the passionate nation builder, wanted to retain the sterling reputation necessary to counter it with all his might.

Where Hamilton saw a threat to the Union in the incipient secession movement, Aaron Burr beheld a chance to rehabilitate his flagging political career. As the 1804 presidential election approached, Burr knew that Jefferson would drop him from the Republican ticket. This assumption was reinforced on January 20, 1804, when Governor George Clinton, citing age and ill health, informed Jefferson that he would not run again for New York governor. Jefferson began to muse upon Clinton’s strengths as a running mate—not least among them that he was too old to pose any competitive threat to himself and would leave the door open for James Madison to succeed him as the next president.