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Post by thelivyjr »



The only other witness was Hamilton himself, who wished to speak to the charges made in the offending piece.

But since truth was not admissible under common law, he could no more present evidence of the falsity of the charges than the Argus could give evidence of their truth.

Hamilton was allowed, however, to explain certain innuendoes charged in the article and he spoke of his innocence in the speculation charge.

He swore he had not offered to buy the Aurora, even though he considered the paper hostile to the United States government.

Defense attorneys Edward and Brockholst Livingston argued a logical and impressive case, but to no avail.

It took the jury only two hours to find in favor of the court's instruction: guilty, since guilty of publication.

The jury recommended clemency, but the court disregarded this advice and sentenced Frothingham to four months in prison, charged him $100 for court costs, and required the posting of $2,000 bond to be held for two years after his release to insure against further libels.

Hamilton's successful libel charge against the Argus, together with the pending federal indictment, hit the paper hard.

Mrs. Greenleaf was forced to sell, though she did find a Republican buyer.

But the indictment was made at a crucial political hour: two months before the 1800 elections.

Hamilton's action has, therefore, earned him the extreme criticism that he stood "ready to stifle democratic dissent," that his "role in the suppression of the New York Argus stamped him as an advocate of the doctrine that an administration may utilize seditious libel prosecutions against its opponents." 103

But the Argus episode does not represent Hamilton's final word on the subject of the press in a democracy.

In 1804, he argued against the notion that an administration can use seditious libel prosecutions to silence criticism and dissent.

By 1804 the Republicans were in power and the Federalist press had become the opposition press.

The Republicans, who had prided themselves on opposing the Sedition Law, now found that its principle could be useful.

Of course the law had expired and President Jefferson had pardoned all those convicted under it.

But the Republicans now took to punishing Federalist voices of criticism under the common libel law, just as Hamilton had done in the Argus case.

When Harry Croswell reprinted an article in his weekly paper, The Wasp, which was critical of Jefferson, Republican Attorney General Ambrose Spencer instigated a libel charge against him under the common law.

The indictment charged Croswell with intending to "detract from, scandalize, traduce, and vilify" Jefferson, "and to represent him...as unworthy of the confidence, respect, and attachment of the people."

"It continued that Croswell, on September 9, 1802, did "wickedly, maliciously and sediously print and publish...a certain scandalous, malicious, and seditious libel," accusing Jefferson of paying a certain James 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 who [Jefferson] well knew to be virtuous." 104

The James Callender mentioned in the indictment had called Washington and Adams names, to be sure.

He had been among the most vitriolic of Republican critics and had been convicted under the Sedition Law.

Jefferson had thought his a worthy cause and had contributed about $50 to help defer Callender's $200 fine.

When Jefferson later decided Callender was a rascal and refused to give him a postmastership in Richmond, the bitter Callender accused Jefferson of having paid him.

103 James Morton Smith, "Alexander Hamilton, the Alien Law, and Seditious Libels, The Review of Politics 16, (1954): 333.

104 In Hamilton, Works, vol. 8, pp.387-388n.

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Post by thelivyjr »



At any rate, Crosswell tried to put his trial off until Callender could testify to the truth of the charges.

But since the case would be tried under common law, the truth would not be admissible evidence anyway.

Croswell was convicted by Chief Justice Morgan Lewis.

At this point, Hamilton agreed to appeal Croswell's case.

He had a personal interest in the case as well as a legal one.

For one thing, the offending article in The Wasp had first appeared in the New York Evening Post, the paper founded by Hamilton.

And more significantly, Callender was the one who had earlier brought to the surface old charges of speculation against Hamilton, forcing him to confess his adultery.

Hamilton must have felt some small satisfaction in seeing Jefferson get equal exposure by Callender's hand.

People versus Croswell was presented on appeal at the Court of Errors at Albany in February of 1804.

Here, Hamilton "played the role of Andrew Hamilton, eloquently championing the cause of freedom of the press." 105

His argument presented the two safeguards in libel cases that the earlier Hamilton had presented in the 1735 Zenger case: that truth be admissible as a defense and that the jury decide both the fact and the law.

He gave his definition of the liberty of the press as consisting "in the right to publish with impunity truth, with good motives, for justifiable ends, though reflecting on government, magistry, or individuals." 106

This was a repudiation of both the common libel law and the Sedition Law as it was exercised, since both had interpreted the test of criminal words to be criticism of government and its officials, per se, regardless of truth.

Hamilton also repudiated the idea held by the Adams administration that criticism of government cannot be tolerated.

The press must operate as a "salutary check" on the powers that be, argued Hamilton.

He would not suggest an "unbridled license."

But the right of press criticism is essential, he said, when it is remembered "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."

Beyond the right to publish truth with impunity, Hamilton discussed the importance of determining the author's intent and raised the question of who should judge intent.

He went on at length about the superiority of giving the authority of judging intent to juries rather than to a permanent body of men, who are more likely to be biased because connected with the executive.

Judges"may be interested in the general welfare," but "their power may be converted into the engine of oppression."

So Hamilton concluded that "it must be with the jury to decide on the intent."

He compared the crime of libel to any other crime, such as murder.

Murder is not a crime when committed in self-defense, he argued.

It is not a crime until it "becomes so in consequence of the circumstances annexed."

"So, also, with libel."

"No act, separate from circumstances, can be criminal."

And since an understanding of what constitutes libel is subject to change, it must always be a matter for a changing body of men to decide.

Unless it can be shown that there is some specific character of libel that will apply in all cases, intent, tendency, and quality must all be matters of fact for a jury, Hamilton argued.

105 Leonard Levy, ed., Freedom of the Press from Zenger to Jefferson (Indianapolis: Bobbs-Merrill, 1906), p. lxxviii.

106 "Speech in the Case of Harry Croswell," Works, vol.8, pp. 389-390. The rest of the material from this speech is also from Works, vol. 8, pp. 387-425.

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Post by thelivyjr »



He gave his own definition of libel, though he added the disclaimer that it would be subject to interpretation by various juries.

"I would call it a slanderous or ridiculous writing, picture, or sign, with a malicious or mischievous design or intent, towards government, magistrates, or individuals."

But if spoken with good motives and for justifiable ends, no material should be considered libelous, he said.

It could be argued that Hamilton's inclusion of this good motive clause was an actual step backwards from the Sedition Law, which said nothing about good motive.

But Hamilton went as far as anyone had when he argued that "its being a truth is a reason to infer that there was no design to injure another."

And again, he came down on the liberal end of assuming good intent when he said that "surely a man may go far in the way of reflecting on public characters, without the least design of exulting tumult."

"He may only have it in view to rouse the nation to vigilance and a due exertion of their right to change their rulers."

Hamilton's defense of Croswell did not succeed in winning a retrial.*

The two Republican judges, Morgan Lewis and Brockholst Livingston, voted against, while the two Federalists, James Kent and Smith Thompson, voted for.

The tie vote meant that Croswell's earlier conviction was upheld.

However, prosecutor Spencer did not move for sentencing.

The impact of Hamilton's speech was far-reaching.

Though he did not live to see the change, his position was no less than "taken as settling the law of libel in this country." 107

As early as April of 1805, the New York legislature passed a declaration bill based on Hamilton's language.

It was incorporated into the New York Constitution in 1821 and adopted by state after state.

Even today, "something very much like it is to be found in the laws, precedents, or constitution of every state," so that "it could be said that monuments to Hamilton are spread all" 108 through the Union.

And still today, some states carry Hamilton's wording in all of its parts, while others have dropped the good motive and justifiable ends clause, maintaining the single requirement of truth as a defense.

Perhaps the greatest tribute to Hamilton's role in the democratizing of the libel law in his last year was made by press scholar Zechariah Chafee.

He concluded that when Hamilton joined Jefferson in defense of criticism, "Blackstonian interpretation of free speech was left without a leg to stand on." 109

The Blackstonian concept of libel had been questioned by Andrew Hamilton at the Zenger trial in 1735.

Then the two safeguards of truth as a defense and jury determination were incorporated into the Sedition Law in 1798.

And finally, when Hamilton's position was adopted as State law, the Blackstonian concept was effectively killed in America.

So Hamilton's last word on the subject of the press was a most libertarian one.

And perhaps his last word was not as inconsistent with his earlier statements as first appears.

Afterall, he again argued the position at the Croswell trial that the press should be as free as the people allow it to be.

Fifteen years earlier, in one of his Federalist essays, he had suggested much the same.

Also, in presenting the two safeguards in libel charges that Andrew Hamilton had first articulated, he was actually stating the protections found in the Sedition Law.

So perhaps "Hamilton recognized no inconsistency between the views he advanced as defense counsel for Harry Croswell and those he had expressed in 1798-1799." 110

We have the testimony of at least one of Hamilton's contemporaries on that subject.

James Kent, who was one of the judges at the Croswell trial and who knew Hamilton well, wrote in his memoirs that Hamilton "felt a proud satisfaction in the reflection that the Act of Congress, of July, 1798, for preventing certain libels against the Government, and which Act had been grossly misrepresented, established these two great principles of civil liberty involved in the discussion."

Kent continued that "he was as strenuous for the qualification of the rule allowing the truth of the libel to be shown in the defense, as he was for the rule itself." 111

A review of Hamilton's involvement with libel law would not be complete without mention of the last incident in Hamilton's life.

While the Croswell case was being tried, a remark attributed to Hamilton and critical of Aaron Burr appeared in an Albany newspaper.

Burr was angered and, after a series of exchanges, challenged Hamilton to the famous duel that took his life.

* In his edition of Hamilton's works, Lodge inaccurately notes that Hamilton won.

107 Mitchell, National Adventure, p. 508.

108 Clinton Rossiter, Hamilton and the Constitution (New York: Harcourt, Brace and World, 1964), p.107.

109 Free Speech in the United States (Cambridge: Harvard University Press, 1948), p. 28.

110 Miller, Hamilton, p. 555.

111 "Appendix," Memoirs and Letters of James Kent,ed., William Kent (Boston: Little, Brown and Company, 1898), p. 325.

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Post by thelivyjr »



When, in 1804, Hamilton defended Croswell's right to print what he believed to be true, even though it reflected unfavorably on President Jefferson, Hamilton returned to his sensibility of 1778.

That was the year in which he wrote three sharp letters in Holt's Journal concerning an unethical congressman.

At that point he recognized the press as the natural and proper forum for questioning the practices of a public official, regardless of the consequences.

He placed himself clearly on the record for an uncensored and unfettered press.

He went on to lose sight of this early recognition.

When in a position of power within the Federalist Party he not only abandoned his faith in a free press, but he became intolerant of that element of the press of a loyal opposition nature.

Even though the Federalist newspapers out-numbered the others by a ratio of four to one until 1796, Hamilton felt threatened by them, persecuted, and defensive.

He lost sight of the fact that not only did he have strong newspaper support, but that he had profited greatly by the press.

He had enjoyed, afterall, total access to the papers of his day.

He had communicated his ideas and defended his actions as freely and as frequently as he pleased.

Yet he discovered that his position of power was also a position of vulnerability, since his actions and statements were carefully observed by individuals who were not always friendly or unbiased.

He never developed the temperament necessary to withstand the scrutiny under which a man is put when he chooses or accepts a public life.

He lacked a tough skin and he lacked restraint.

Not that the press was always fair to Hamilton.

Freneau gave him a rough time through weekly accusations in the National Gazette for more than a year.

And it was less than admirable for James T. Callender to dredge up old and false charges that Hamilton had speculated when he was Secretary of the Treasury.

But since it was Hamilton's nature to retaliate and to overreact when questioned or criticized, he hurt himself more than the press did in the first place.

Hamilton's position of power did not corrupt him, but it did blind him to the viewpoint he could see so clearly both before and after he assumed authority.

If he appeared to change hats from his days in one of the most powerful seats in government to his final days as a lawyer and private citizen, this reflects a pattern that has become familiar during two hundred years of America political history.

Not all politicians have left public office with Hamilton's insight, however.

Hamilton, after being in an excellent position to see how power corrupts, came to the conclusion that the First Amendment, the necessity of which he had once questioned, is unequivocally essential if the American Republic is to remain secure.
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