The Death Of Alexander Hamilton And The Birth Of The American Free Press

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Alexander Hamilton has more to do with American independence than you might think. His efforts as a Founding Father (the hottest Founding Father on Broadway, it should be noted) helped the United States achieve political independence from Great Britain.  But Hamilton also made a vital contribution towards helping the American justice system declare jurisprudential independence from the English courts, particularly with regard to defamation and free speech. Hamilton made this lesser-known contribution not as a member of the cabinet or as an author of the Federalist Papers, but as a trial lawyer a few months before his death. In fact, the case of People v. Croswell led to his death.

“To lash the rascals naked through the world”

The story is set in the midst of the intense party factionalism during the presidency of John Adams. James Callender, a Virginia journalist and pamphleteer, allied himself with the Democratic-Republican party of Thomas Jefferson and printed nasty diatribes against Adams (who he called a “hoary-headed incendiary”) and George Washington (who he labeled a “traitor, robber and a perjurer”). In 1800, the Adams administration prosecuted Callender under the Sedition Act, and Callender was sent to jail for several months.

Callender emerged from jail on the very day Jefferson assumed the presidency, March 4, 1801, and sought a patronage job from the new administration. When no job was forthcoming, Callender turned his pamphleteering skills on Jefferson with a vengeance. In September 1802, Callender broke the story in the Richmond Recorder that Jefferson had fathered five children out of wedlock by an enslaved woman named Sally Hemmings. Jefferson reportedly avoided directly confronting this accusation.

However, Jefferson wasn’t so shy about confronting another accusation printed by Callender: Callender claimed that the only reason he used to print all that seditious stuff about Adams and Washington was because Jefferson paid him $100 to do it. This bribery accusation was reprinted in Federalist-leaning newspapers around the country, including The Wasp, a Hudson Valley paper published by twenty-four year old Harry Crosswell, the motto of which was: “To lash the rascals naked through the world.” Jefferson admitted that the $100 payment was made, but claimed it was nothing more than charity: he felt sorry for Callender because of his criminal conviction.  The Wasp commented on this explanation with blunt disdain:

No! He [Callender] is the very man, that an aspiring mean and hallow hypocrite [Jefferson] would press into the service of crime. 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 for him the dagger or administer the arsenic.

“Being a Seditious and Malicious Man”

Jefferson and his allies could have called quits to politically-motivated prosecutions of the press under the Sedition Act; prosecutions they decried when brought against the newspapers they liked. Instead, the Democratic-Republicans took the decidedly low road. According to New York Court of Appeals Chief Court Attorney Paul McGrath in his fascinating article, People v. Croswell, Alexander Hamilton and the Transformation of the Common Law of Libel, Jefferson political ally and future Governor DeWitt Clinton set out to make an example of The Wasp. Seditious libel charges were initiated against Croswell in a New York state court, accusing him of:

[B]eing a malicious and seditious man, of a depraved mind and wicked and diabolical disposition, and also deceitfully, wickedly and maliciously devising contriving and intending, Thomas Jefferson, Esq., President of the United States of America, to detract from, scandalize, traduce, vilify and to represent him, the said Thomas Jefferson, as unworthy of the confidence of the people of said United States . . .

But truth is a defense, right?

Croswell informed the Court that he intended to assert the truth as a defense, and needed time to secure the testimony of James Callender, who could confirm that Jefferson really did bribe him to attack his political opponents. However, the Court refused to allow the time to secure this evidence because it would be inadmissible and irrelevant.

Irrelevant? But truth is a defense to libel, right? Actually, no. Truth had once been a defense in libel actions in England prior to the 17th Century, and at least as far back as the Second Century Roman lawyer Julius Paulus Prudentissimus. However, that all changed when English monarchs transformed the Star Chamber, a court sitting without a jury at the Palace of Westminster, into a powerful vehicle for the suppression of speech. Facing the unprecedented impact of the printing press on political discourse, the Star Chamber eliminated truth as a defense to libel because, as the Croswell prosecution put it, “a libel is punishable, not because it is false, but because of its evil tendency; its tendency to a breach of the peace.”

Even after the Star Chamber was abolished in 1641, other Westminster courts continued to follow many of the same precepts, which were in turn received into New York law in 1777 by Section 14 of the New York State Constitution. Creative arguments against following the English law of defamation had been made previously in American colonial courts, most notably by Andrew Hamilton in the famous Zenger trial in 1733, but even after independence American judges still looked to the English courts — and to the high courts of Westminster in particular — to define the common law. Thus, at the time of the Croswell trial, the judge proclaimed it “settled [law] that the truth could not be given in evidence to the jury” as a defense to libel.

At trial, over the objections of defense counsel, the Court charged the jury with only two questions: whether or not Croswell had written the articles containing the accusations against Jefferson, and whether the articles were harmful to Jefferson. The Court reserved for itself all other questions, including intent, on the grounds that they were issues of law. Finally, the Court reserved for nobody the question of whether the accused statements were true or false, because that was deemed irrelevant.  The jury, so instructed, had little choice but to convict Croswell for criminal libel.

Before he could be sentenced, Croswell moved for a new trial and the motion was slated to be heard before a panel of four judges of the New York Supreme Court of the Judicature. The panel was only comprised of four judges — not the usual five — because the prosecutor in the case, Democratic-Republican Ambrose Spencer, was elevated to the position of Associate Justice while the matter was pending. Of the four remaining judges, only one was considered to have Federalist leanings.

Hamilton’s Strategy

With the decks stacked against him, Croswell added Alexander Hamilton to his defense team. As historian Kate Elizabeth Brown opined in her excellent work, Rethinking People v. Croswell, Hamilton’s strategy was not to ask “the court to change the rule of criminal libel,” but to declare “what the law of criminal libel was in the first place.” In other words, Hamilton didn’t argue that truth should be a defense to libel, but that it always has been. In order to do so, Hamilton had to redefine what the “common law” meant in American jurisprudence.

During a two-day hearing in a packed Albany courtroom in February 1804, Hamilton argued that the Star Chamber was a “polluted source” of law to be disregarded and “not the court from which we are to expect principles and precedents friendly to freedom.” Rather, Hamilton argued, the Court should look to “the application of natural law to the state and condition of society,” as reflected in older sources of English law and even in American law, such as the United States Constitution and acts of the New York legislature. Hamilton was proposing that the judges declare their independence from the courts of Westminster and make their own judgment about what the law was.  If they did, Hamilton argued, they would find that “liberty of the press consists in the right to publish, with impunity, truth, with good motives, [and] for justifiable ends,” and that this liberty “is essential to the preservation of a free government.”

New York Supreme Court Justice James Kent agreed.  Kent held that “the rule denying permission to give the truth in evidence was not an original rule of the common law.”  Kent went on to state that:

But, whatever may be our opinion on the English law, there is another and a very important view of the subject to be taken, and that is with respect to the true standard of the freedom of the American press. In England, they have never taken notice of the press in any parliamentary recognition of the principles of the government, or of the rights of the subject, whereas the people of this country have always classed the freedom of the press among their fundamental rights.

With Judge Kent (the lone Federalist) leading the way, the panel initially appeared to be leaning towards the retrial Hamilton wanted. At one point, Judge Brockholst Livingston announced in open court that he was going to vote in favor of Croswell. However, Livingston inexplicably changed his mind at the last minute. In May 1804, the Court announced that it was deadlocked at 2-2, which meant that Crosswell’s conviction stood. Judge Livingston didn’t show up to work that day, purportedly due to illness.

Then Nothing Happened

But then something strange happened: nothing. The prosecution did not move for judgment. No sentencing hearing was held or requested. The case just sat there.

Well, ok, something happened, but that something explains why nothing happened. By this time, it was clear that the public was firmly opposed to the prosecution, and what’s the point of a politically motivated lawsuit when its hurting you politically? In fact, a month before the Court announced the deadlock, the New York legislature was already considering libel reform legislation in response to Croswell’s predicament. The following year, a new statute was enacted, providing that truth was a defense to a libel charge, and that the defendant has a right to have a jury decide the elements of the offense.

After the new legislation passed, the New York Supreme Court changed its mind and unanimously ordered a new trial. But by this time, a new trial was in nobody’s interest. As for Croswell, he may have been tempted to vindicate himself, but his key witness, James Callender, had drowned in suspicious circumstances while the matter was pending.

As for the prosecution, not only was public sentiment headed in the other direction but, by the time a retrial would have occurred, the prosecution was facing what today we would call “bad optics.” The first bad optic was that Jefferson decided to elevate Judge Livingston to the next open seat on the United States Supreme Court, suggesting a quid pro quo. The second bad optic was that Jefferson’s new Vice President (George Clinton) was the uncle of the man who had initiated the prosecution.

And then there was the mother of all bad optics: Jefferson’s first Vice President, Aaron Burr, had just shot and killed the defense counsel. When Hamilton was in Albany for oral argument in February, he had dinner with some of the judges in the case and let slip a few nasty remarks about Burr. This got back to Burr, who challenged Hamilton to a duel, which took place in July 1804. Less than two months after the deadlock decision was announced, and over a year before Croswell’s retrial was granted, Hamilton was dead.

Harry Croswell fared a little better than his lawyer. He was eventually convicted, but not for libel. Croswell went to debtors prison in 1811. He came out of prison a religious man, and spent the rest of his long life as an Episcopal minister. While it’s true that he and Hamilton lost the case, and that but for the case Hamilton may have lived to a ripe old age, their efforts nevertheless accomplished a great deal. They erased hundreds of years of bad defamation law, solidified the cherished place of freedom of the press in the U.S. psyche, and helped American jurisprudence declare independence from a lockstep imitation of the English courts.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Trademark, Copyright & Unfair Competition | Attorney Advertising

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