In 1817, Italian-born painter Francesco Mezzara had a spat with his patron, New York attorney Aaron Palmer. As the feud escalated, Mezzara painted an insulting picture of Palmer and put it up for auction. Mezzara was giddy when the picture fetched $40—but not for long. Soon, he stood accused of criminal libel on account of the offensive portrait.
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Above: Jan van den Hoecke, The Judgment of Midas (c. 1640). The tale of how Midas earned his ass’s ears was popularized by Ovid’s Metamorphoses and was a popular subject for seventeenth-century paintings. Here, the radiant Apollo leaves his musical contest with Pan in defeat. As he departs, the Olympian god causes ears to sprout on the head of Midas (to the right), who has awarded Pan the first prize in the competition. (Washington, DC: National Gallery of Art, Accession Number 2015.143.18).
SHOW NOTES
Francesco Mezzara, Self-Portrait (1809). Completed before his stays in the United States, this painting is the only known surviving work by Mezzara. With brushes in hand, the painter looks out at the viewer with dignity and pride. The nature of the art market in New York meant that painters were less likely to be treated as creative geniuses than humble craftsmen.
John Wesley Jarvis' portrait of Aaron Haight Palmer (1819). A lawyer, businessman, and occasional patron of the arts, Palmer ran afoul of Mezzara when he refused to pay the painter for an allegedly botched likeness. That infamous portrait no longer survives. We still know what Palmer looked like, though, because he later sat for Jarvis, New York’s most famous portraitist. While impossible to know for certain, the commission may have been a somewhat-corrupt payback for Jarvis’s testimony against Mezzara in court.
Carl Fredrik Akrell (after Axel Klinckowström), Broadway and City Hall in New York/Brodway-Gatan Och Rådhuset i New York (1824). Many of the key events that precipitated Mezzara’s trial for criminal libel occurred outside. This etching gives some idea of the spritely street life that characterized early 19th-century New York. The composition situates the viewer so that they are looking north from the intersection of Broadway and Fulton toward the “new” City Hall (completed 1813), where Mezzara’s trial took place. (New York: Metropolitan Museum of Art, Accession Number: 24.90.1320).
Andrea Vaccaro, King Midas (ca. 1670). Trained as a painter, Mezzara was familiar with Italian art history. This education, which included studying works like Vaccaro’s, may have introduced him to Ovid’s version of the Midas myth. A native Roman, he also likely knew Vasari’s story about Michelangelo adding ass’s ears to a figure that he painted in Rome’s Sistine Chapel. Mezzara argued unsuccessfully in court that his “libelous” painting of Aaron Palmer was just an attempt to depict Midas in 19th-century garb.
SELECT BIBLIOGRAPHY
---Burrows, Edwin G. and Mike Wallace. Gotham: A History of New York City to 1898. Oxford: Oxford University Press, 1999.
---Gordan, John D. III. “The Price of Vanity, or, The Lawyer With the Ears of an Ass.” The Historical Society of the Courts of the State of New York 1, no. 2 (2004): 3-6.
----Harrington, John Walker. “John Wesley Jarvis, Portraitist.” The American Magazine of Art 18, no. 11 (1927): 577-84.
---Klein, Rachel N. Art Wars: The Politics of Taste in Nineteenth-Century New York. Philadelphia: University of Pennsylvania Press, 2024.
---Larson, John D., ed. “The Trial of Francis Mezzara for Libel.” In American State Trials, I: 60-8. St. Louis: F.H. Thomas Law Book Co., 1914.
--- Marraro, Howard R. “Pioneer Italian Teachers of Italian in the United States.” The Modern Language Journal 28, no. 7 (1944): 555-82.
---Miles, Floyd F. “Double Trouble, Or, Never Sue a Lawyer.” Dicta (July 1952 issue): 271-72.
---Rather, Susan. The American School: Artists and Status in the Late Colonial and Early National Era. New Haven: Yale University Press, 2016.
---Sapori, Julien. “Nicolas-Marie Quinette. Biographie d’un révolutionnaire soissonnais devenu assez célèbre en des heures peu glorieuses,” Société archéologique, historique et scientifique de Soissons. 47 (2002): 75-119.
--- Stighelen, Katlijne van der. “A Self-Portrait by Francesco Mezzara (1774–1845), the Italian Painter Who Changed New York State Constitutional Law with a Pair of Ass’s Ears.” Nineteenth-Century Art Worldwide 13, no. 2 (2014): 375-90.
---Voorsanger, Catherine Hoover and John K. Howard, eds. Art and the Empire City, 1825-1861. New Haven: Yale University Press, 2000.
TRANSCRIPT
It was July 30, 1817, and the auction rooms of Nathaniel G. Ingraham had never been so lively. Many had come to Ingrham’s southern Manhattan establishment to get a look at a painting they had read about in the paper. The picture was by an artist named Francesco Mezzara, a native of Rome and a real piece of work. A week or two earlier, a New York attorney had insulted Mezzara in the most heinous manner—or at least that’s how the painter felt. Now, it was time to settle the score. Mezzara had painted a scandalous portrait of the offending lawyer, and today he was putting it up for sale.
Bidding was set to begin in just minutes, and Mezzara would not leave Ingraham alone. As the auctioneer arranged the assorted objects for sale that day, the painter chimed in with unsolicited advice. Among other demands, he insisted that Ingraham hang his latest artwork where it could be seen by the greatest number of patrons. The auctioneer suppressed a sigh and followed his instructions.
Exactly as intended, Mezzara’s painting caused a commotion. The artist grinned as he watched others gawk and gasp and guffaw, elbowing each other out of the way to see his handiwork. Ingraham, meanwhile, disapproved of the disorder and regretted listening to the mischief-making painter. Whatever irritation he experienced, Ingraham could not deny that Mezzara’s antics were good for business. The painting unleashed a small-scale bidding war and finally fetched a satisfying $40 at auction. Ingraham was happy to keep his commission, and Mezzara reveled in his rival’s humiliation.
Mezzara would not be laughing for long. Indeed, the painting would result in his arrest on charges of criminal libel. You heard that right—a painting led to charges of libel, an offense we typically associate with malicious falsehoods in writing. That’s because Mezzara’s contemporaries had very different ways of understanding libel than we do in the present day. Today, we’ll hear about the low-stakes, high-drama dispute between Mezzara and his enemy, what the artist painted to wind up in criminal court, and how his case set a precedent in New York state law. This is The Art of Crime. I’m your host, Gavin Whitehead. Welcome to Episode 2 of Crimes of Old New York . . .
The Adventure of the Libelous Painter
Mezzara Moves to New York City
Francesco Mezzara was born in Rome in 1774, to Gioseppe and Angiola Mezzara. A relatively obscure figure, Francesco left behind little evidence of his childhood and education.
That said, a self-portrait painted in 1806—viewable on The Art of Crime website— gives us an idea of the artist’s appearance and personality. In his thirties at the time, Mezzara depicts himself as a prematurely balding, dark-eyed man with graying sideburns. Gazing out at the viewer in three-quarters profile, he wears a pine-green jacket, a shirt with a large white collar, and a self-serious expression. In his left hand, he holds a cluster of paint brushes. His index finger points to an inscription on the shoulder of his jacket, which reveals the identity and birthdate of the painter. This is a man who looks older than his years, an artist who views his vocation as a noble one.
At some point prior to 1813, Mezzara moved to Paris, where he met and fell in love with Marie-Angélique Foulon. Nearly twenty years his junior, Angélique—as she preferred to be called—was also a painter. She specialized in society portraits, and later in her career, her work would adorn the walls of the prestigious Paris Salon. In 1813, Francesco and Angélique married and moved into 16 Rue d'Enfer, in the French capital, not too far from the Luxembourg Gardens.
During the winter of 1816, Mezzara made the trans-Atlantic voyage to New York City, probably with his wife. Upon arrival, he rented rooms on Reed Street, his lodgings doubling as his studio. Once accustomed to his Manhattan digs, Mezzara began rooting around for work. As he quickly learned, lucrative commissions were hard to come by, and painters were more likely to be treated as menials than as master-artists. Indeed, the gap between Mezzara’s lofty vision of his profession and the relatively humble status of New York painters in the early nineteenth century laid the groundwork for his appearance in criminal court.
The New York Art Scene, 1817
Today, New York is among the world’s most important museum cities. Its most successful painters make big money and enjoy enormous cultural cache as visionary—and often eccentric—geniuses. This was not the case in 1816.
When Mezzara arrived in New York that year, U.S. painters were seen as little more than manual laborers. From the colonial era to the early nineteenth century, painters made their living by splitting their time between “pragmatic” jobs and “artistic” ones. When it came to “artistic” assignments, portraits were the bread and butter of the early American painter. While a handful of portraitists achieved extraordinary success, even they had no choice but to supplement their income with more mundane tasks like painting houses and designing signs for local businesses. Many nineteenth-century painters would have agreed with Boston-based artist John Singleton Copley, who lodged this complaint about the inferior status of his craft in 1767: “The people generally regard [painting] no more than any other useful trade…like that of a Carpenter, tailor, or shew maker, not as one of the most noble Arts in the World.” Copley, who painted the famous portrait of the alarm-raising patriot Paul Revere, also grumbled about his countrymen’s decidedly self-absorbed attitudes toward painting. To his mind, they were incapable of appreciating a picture unless it depicted them. While New York’s art scene was just beginning to flourish in 1816, the market for new paintings by U.S. artists remained undeveloped. It was not until the Gilded Age that art collectors parted with mountains of money for paintings or sculpture. So, even though New York was poised to surpass Philadelphia as the artistic capital of the young republic, it still proved challenging to find creatively fulfilling opportunities as a painter.
Because of the limited trade in new paintings, would-be patrons wielded greater power over artists than they might have otherwise. You can see a good example of this in an 1804 newspaper advertisement placed by painter Gerrit Schipper, who hoped to land work while visiting New York. Schipper’s ad guarantees a refund if patrons are not 100% satisfied, no questions asked. Think about the risks of this position for a painter. If a patron declined to pay, the artist would lose not just labor time but also any money that was spent on raw materials. The no-questions-asked policy further empowered patrons. They could withhold payment regardless of the picture’s quality, simply because they preferred to spend their money elsewhere.
Several art historians have convincingly argued that the disappointing trade in creative painting originated in a larger cultural discomfort with aristocratic pastimes and displays of wealth in the new Republic. This goes a long way in explaining why some of New York’s earliest art museums styled themselves as educational institutions that promoted democratic values along with a sense of civic belonging. In 1816—the very same year that Mezzara set sail for the United States—the American Academy of the Fine Arts reopened in Gotham. (It had closed down during the War of 1812.) This museum stood just steps away from City Hall, a location that underscored its civic-minded ethos. In a speech at the reopening ceremony, former mayor DeWitt Clinton proclaimed that “a republican government, instead of being unfriendly to the growth of the fine arts, is the appropriate soil for their cultivation.” Similar sentiments found their way into the mission statements of later museums. The revival of the American Academy of Art marked a turning point in the city’s history—a new awakening to the civic significance of art. The Academy would also play a crucial role in Mezzara’s misfortunes.
The Patron
During his stay in the city, Mezzara appears to have hung out in primarily French-speaking circles. This might sound surprising, since nineteenth-century New York often conjures images of vibrant Italian communities in Harlem, the Bronx, and the neighborhood known today as “Little Italy.” However, the large-scale immigration of Italians to the city was still a few decades away. As a former resident of Paris, Mezzara benefitted from the fact that New York was one of the two U.S. cities most preferred by French emigres at the time. (The other was New Orleans). The social networks that Mezzara navigated back home in France opened the door to high society on the other side of the Atlantic, including the household of Baron Nicholas Marie Quinette.
A French politician, Quinette was living in New York as an exile. Following the defeat of Napoleon at Waterloo, Quinette advocated for a return of the French Republic. France instead reverted to monarchy, at least for a while. Like many other uncompromising republicans, he was forced to flee the country in 1816. During his two years in New York, Quinette became the pen-pal of former president Thomas Jefferson and hosted social gatherings where freshly arrived French immigrants could mingle with the city’s English-speaking elite.
It was at one such soiree that Francesco Mezzara met lawyer and businessman Aaron Palmer. Quinette introduced Mezzara as a “man of genius” and a “eminent connoisseur of the fine arts.” Thoroughly impressed, Palmer invited the Italian to his home for dinner. As they dined, Mezzara paid the kind of bizarre, maybe-inappropriate-for-a-first-date compliments that could only have come from a struggling portraitist. Between gulps of wine, Mezzara assured his host that he had been blessed with the most breathtaking facial feature. It was not a set of penetrating eyes, an aquiline nose, or a rugged jawline. No, Palmer’s most remarkable attribute was his glorious . . . forehead, the most amazing that Mezzara had seen in recent memory, a forehead that was asking—no, begging—to be reproduced on canvas. Needless to say, the only painter who could possibly capture the unique charms of Aaron Palmer’s forehead was Francesco Mezzara, man of genius and eminent connoisseur of the fine arts.
After Mezzara’s repeated blandishments, Palmer finally agreed to sit for a portrait. During this session, Mezzara likely painted the lawyer’s face and hands, leaving the rest of the picture unfinished. He would attend to the secondary aspects of the portrait—the clothing and background—later on and then deliver the final product at a prearranged date. When Palmer left Mezzara’s studio, he saw the portrait in its incomplete state and gave it an emphatic thumbs-up.
What Palmer did not realize was that Mezzara intended to share the final product with the public, before Mezzara had shared it with him. Without even bothering to notify Palmer, let alone ask permission, Mezzara exhibited the picture at the newly reopened American Academy of the Fine Arts. Some of Palmer’s friends just so happened to attend this exhibition, and they were vicious in their appraisal of the painting. More of a caricature than a faithful likeness, it looked like it had come from the brush of an untrained hack. These cutting critics were not about to keep their snark to themselves—they personally told Palmer that Mezzara was exhibiting his ham-handed portrait at the Academy, for all New York to laugh at.
Palmer was not happy and gave voice to his displeasure a few days later when he ran into Mezzara walking down Broadway. In as polite a way as possible, the lawyer explained that the portrait was—well, how to put it—trash, and he wasn’t sure he wanted to pay for it. Mezzara bristled and fumed. Hoping to calm the painter down and put an end to this embarrassing business, Palmer caved and offered to pay $65 forMezzara’s efforts. However, he also made clear that he had no desire to own the portrait, implying that Mezzara could chuck in the Hudson as far as he was concerned. Mezzara reacted as if he was Michelangelo, and Palmer had publicly urinated in the Sistine Chapel. You know what, Palmer? You could keep your damn money. Furthermore, the painter would not degrade himself by accepting payment from a philistine who had insulted his genius and who, in his words, had “wound[ed] his self-love.” Mezzara spun on his heels and stormed down Broadway, vowing before he went that he would have his revenge—or as he put it, his “satisfaction.”
That same day, Mezzara reconsidered. $65 was a lot of money, and he and his wife needed to feed themselves somehow. The best course of action was to swallow his pride and accept Palmer’s offer. Mezzara sent a messenger to Palmer’s residence and requested the payment. Unfortunately, Palmer had also reconsidered. After Mezzara’s meltdown on Broadway, the lawyer was no longer prepared to pay him at all. Infuriated afresh, Mezzara marched straight to the Mayor’s Court, where he filed a lawsuit.
Trial Number One
Few details about the suit have come down to us, but we do know that Mezzara lost. Far from winning $65 as he had hoped, he was forced to cough up $24 to cover Palmer’s legal expenses. The painter had nowhere near that much money, so the court ordered a seizure of his personal belongings commensurate with the fine. This was impossible, Mezzara countered, because he owned nothing—absolutely nothing—of value, apart from his stupendous portrait of Palmer. Accordingly, the judge set a date and time for the sheriff to visit Mezzara’s lodgings, collect the painting, and convey it to an auction house, where it would be sold. Any funds that it generated would go toward the $24 awarded to Palmer. If the portrait fetched more than that amount, Mezzara would keep the difference—minus a commission for the auctioneer, of course.
No more than a few hours after his legal defeat, a furious Mezzara was stomping down Broadway when he spotted Palmer with two of his friends from the legal profession, Barent Gardenier and Isaac M. Ely. The painter, whom witnesses later described as “agitated,” barged on over and interrupted them, upbraiding Palmer. Based on courtroom testimony, Mezzara appears to have challenged his patron’s friends to inspect the painting and judge it for themselves. Although put off by the artist’s bad temper, Gardenier and Ely agreed to go home with him and evaluate the portrait. More surprising still, Palmer went with them. When the men arrived at Mezzara’s rooms, the painter asked their honest opinion. Much like Palmer’s other friends, Gardenier and Ely had nothing nice to say, and they were going to say it. This “likeness” looked nothing like Palmer.
Mezzara exploded, hurling abusive language at his guests. Then he had an ingenious idea, one that put Palmer right in his place. As one art historian has noted, Mezzara might have gotten this brainwave from an old story about Michelangelo. The anecdote in question comes from Vasari’s famed anthology of artistic biographies, The Lives of the Most Excellent Painters, Sculptors, and Architects, first published in 1550 and later expanded in 1568. While Michelangelo was painting the Sistine Chapel, the Pope and his Master of Ceremonies came to inspect his progress. Whereas the Pope expressed his approval, the Master of Ceremonies blasted Michelangelo for depicting naked human figures in a place of worship. Angered by this small-minded criticism, Michelangelo took his revenge by adding a man who looked exactly like the Master of Ceremonies to the Sistine Chapel. The figure was as naked as a newborn baby. Not stopping there, Michelangelo crowned the nude official with a pair of ass’s ears—an emblem of his idiocy. Simply put, Michelangelo used his artistic talents as a way of punking his critic.
Like a latter-day Michelangelo (minus the talent), Mezzara grabbed a piece of chalk and snarled at Palmer, “Since this is not your picture, you will not be offended by this…” With a few quick strokes, he drew a pair of donkey ears on top of Palmer’s head in the picture. Mezzara had just thrown down the gauntlet. Palmer kept his cool, as did his friends. Only growing bolder, Mezzara threatened to paint permanent ears on the picture and “expose it on Broadway.” By now, the three lawyers had had enough. They wished him “good-evening” and took their leave.
Palmer appears not to have anticipated that Mezzara would make good on his threats. But sometime after their bitter parting that evening, Mezzara broke out his brushes and paints, sized up the portrait, and gave Palmer’s likeness a pair of giant ass’s ears. Soon, very soon, he would have his revenge. We’ll hear more after a quick break.
Sweet Vengeance
Thirty-three-year-old journalist Samuel Woodworth looked up from his desk at the offices of the newspaper, the Republican Chronicle. His boss was flanked by two foreign gentlemen. Neither of the men spoke English very well, but Woodworth’s employer was given to understand that they wanted to place an ad in the Chronicle.
It was Woodworth’s responsibility to talk to the customers and compose an advertisement that met their satisfaction. The newspaperman did not catch the men’s names at the time, but later he learned that one of them was painter Francesco Mezzara. Perhaps with linguistic assistance from his friend, Mezzara told Woodworth about his spat with Palmer. He also explained that the portrait of the lawyer was going up for auction in a few days—with a certain insulting addition to the original composition. By the end of this exchange, Woodworth had produced the following announcement, printed in the paper a day or two later: “Curious Sherriff’s Sale. We have been requested to mention that there will be sold, this forenoon…at 133 Water Street, a PICTURE intended for the likeness of a gentleman in this city, who ordered it painted. But as the gentleman disclaimed it, it remained the property of the painter, and is now seized by execution. In order to enhance its value, the painter, who is an eminent artist from Rome, has decorated it with a pair of long ears, such as are usually worn by a certain stupid animal. The goods can be inspected previous to the sale.” This beguiling message would ensure a healthy turnout on auction day.
On the morning of Wednesday, July 30, Deputy Sheriff Jonathan L. Brewster knocked on the door of Mezzara’s lodgings. Brewster was charged with collecting the portrait of Palmer and bringing it to the auction house. When he eyeballed the artwork, he noticed that it had been “disfigured by the appendage of Ass’s ears to the head.” Hardly an art critic and really just there to do his job, Brewster asked no questions and loaded the canvas onto a wagon. Then, he made his way to the auction house of Nathaniel G. Ingraham. Mezzara arrived on the scene in short order, demanding that Ingraham place the picture in the most visible location possible. Thanks to the advertisement in the Republican Chronicle, the auction rooms filled with “an unusual collection of people,” according to Deputy Sheriff Brewster. Indeed, the spectacle of Palmer’s ridiculous portrait proved so disruptive to Ingraham’s business that he had it moved to a back room until bidding began.
Earlier that morning, Aaron Palmer learned that Mezzara had followed through with his threats and intended to auction off his disfigured likeness. Mortified, the attorney sent a representative to the sale in order to buy the painting on his behalf. Considering Palmer’s low opinion of the picture, it should come as no surprise that he gave his surrogate a budget of just $30 to bid on the portrait. Unfortunately for Palmer, participants were ready to bid much higher than that. When the going price exceeded $30, Palmer’s representative simply stopped bidding. The picture was sold to a friend of Mezzara’s for the nice price of $40.
After counting out $24 to cover Palmer’s legal fees, Mezzara pocketed a cool $16 in profit—what a coup! With a small group of friends, including the proud owner of Mezarra’s creation, the Roman painter took to the streets to celebrate, pumping his fist in the air and laughing till his sides hurt. The jolly party turned off Water Street and onto Pine, where a giddy Mezzara held the portrait aloft for all to see, “exposing it in a seemingly triumphant manner,” a witness recalled later.
Mezzara’s mirth would prove short-lived. Within a week, he was arrested and placed on trial, charged with criminal libel.
The Crime of Libel
In the twenty-first century, we tend to think of libel as a falsehood that is published in writing with the intention of harming someone’s reputation. In the United States, libel is almost exclusively a civil matter. Rarely does the state throw anyone in prison for it. To wrap our heads around Mezzara’s indictment, we need to set aside many of these modern-day assumptions and look at the history of how libel was tried, particularly in New York. For the second time this season, two of America’s Founding Fathers play pivotal roles in our story.
The American colonies inherited their ideas about criminal libel from English law. In the late fifteenth century, an English court known as the Star Chamber came into existence. Under Henry VIII, who reigned from 1509-47, this court cracked down on what it termed “seditious libel,” speech that cast the Crown in a negative light. Over the course of the sixteenth century, the Star Chamber expanded its authority. Where it once concerned itself with insulting or subversive language directed at the monarch, it began to hear cases involving non-royals. In other words, the idea of “seditious libel,” the sole victim of which was the head of state, gave birth to the broader concept of “criminal libel,” the victim of which could be an ordinary person. When the Star Chamber was finally dissolved around 1641, criminal libel lived on in English Common Law, and—eventually—in the legal codes of the American colonies and the early republic.
Here's a fun fact about the meaning of libel at this point in history: speech could be labeled “libelous” even if it was demonstrably true. In English legal precedent, the truth or falsity of a statement was considered less important than its effects on the reputation of the libeled individual and the safety of the community. Language that was intended to ridicule or defame could harm the victim’s standing and even provoke violent retaliation. This, in turn, could foment unrest.
Even in the colonial era and the early republic, criminal prosecutions for libel were already sparking concerns about government attempts to use anti-libel laws to silence those who exposed official corruption and ineptitude. Take, for example, The People v. Croswell, the 1804 libel trial that led to the revision of New York state’s penal code. Harry Croswell was a sharp-tongued clergyman and journalist who made his home in New Haven, Connecticut. On September 9, 1802, he published an incendiary article in his New-York-based periodical, the Wasp. The piece alleged that President Thomas Jefferson had paid a political pamphleteer named James T. Callender to spread untrue and damaging claims about both George Washington and John Adams. (You might even say that Jefferson paid Callender to libel his adversaries.) As a result of this article, Jefferson worried about his chances at re-election. In a move that does not reflect all that well on the nation’s third president, he floated the idea of prosecuting Croswell for criminal libel. In 1804, the commander-in-chief’s New York lackeys accordingly charged Croswell with libeling Jefferson. The indictment accused Croswell of “being a malicious and seditious man, and of depraved mind and wicked and diabolical disposition, and also deceitfully, wickedly and maliciously devising, contriving and intending, toward Thomas Jefferson, Esquire, President of the United States of America, to detract from, scandalize, traduce and vilify, and to represent him, the said Thomas Jefferson, as unworthy of the confidence, respect and attachment of the people of the said United States.”
At the trial, Croswell planned to rely on the defense that he had authored his article in good faith and that every word of it was true. At a key juncture in the proceedings, Croswell’s lawyer asked the judge to postpone business for a few days, since the defense’s star witness needed time to travel to New York from Virginia. This surprise witness was none other than James T. Callender, who was expected to testify that, yes, Jefferson had paid him to publish malicious falsehoods about Washington and Adams. Nevertheless, the judge refused to postpone the trial on account of Callender, ruling that the pamphleteer’s testimony was irrelevant. Based on contemporary libel laws, the defendant was guilty of attacking Jefferson’s reputation even if Croswell’s allegations were true. In other words, Croswell was prohibited from waging what we now call a “truth defense” against his alleged libel. Thus, the judge instructed the jury that the only question that mattered was whether Croswell had published his claims in the Wasp. Because Croswell never denied that he had, the jury was all but forced to find him guilty.
But then New York lawyer Alexander Hamilton entered the chat. Hamilton was hired to appeal Croswell’s case before the New York Supreme Court in February 1804, just a few months before he died in a duel with Aaron Burr. Hamilton argued that the lower-court judge wrongfully denied Croswell a legitimate defense when he excluded Callender’s testimony. The higher-court’s justices did not come to a consensus on the merits of Hamilton’s arguments—two agreed, and two disagreed. Unhappily for Croswell, this tie vote was not enough to overturn the original verdict, though it granted the possibility of a retrial. That soon became irrelevant—subsequent legal developments guaranteed that Croswell would not have to stand trial again.
Following this appeal, the opinion of Judge James Kent, who sided with Hamilton in Croswell’s appeal, was widely read and admired by New York jurists. In 1805, the arguments of Hamilton and Kent together inspired the New York legislature to revise its libel laws to allow “truth defenses.” To be more precise, after 1805, the truth of an assertion constituted a partial defense against accusations of libel. Put another way, there were still circumstances in which publishing the truth could land you in the slammer. To exonerate yourself, you had to prove not only that the allegedly libelous statements were true, but also that they were “published with good motives and for justifiable ends,” according to the language of the 1805 law. If the defendant told the truth about the alleged victim but had done so for no reason other than to bring that victim “into public hatred, ridicule, and contempt,” then the defendant had not published that truth “with good motives” or “for justifiable ends.” In cases like this, the accused could still be found guilty of libel.
Which brings us back to Francesco Mezzara. He was brought up on charges of libel for three main reasons. First, he painted a picture that was false. Aaron Palmer didn’t have ass’s ears! Second, he painted that picture with malicious intent. He wanted to make Palmer, well, look like an ass. Third, Mezzara made this picture public, putting it up for sale at a public auction, an auction that he advertised in the local newspaper. The point is probably most important because it explains why Mezzara was accused of libel on account of a painting rather than a piece of written text. Because he displayed it in a crowded auction house, the portrait exposed Palmer to derision. If Mezzara had added the ass’s ears and sold the portrait to a friend in private, he would not have faced charges of libel.
Even considering the recent changes in libel law, Mezzara was in a precarious position going into the trial. In 1817, New Yorkers could defend themselves against charges of libel by claiming that first they had told the truth about the alleged victim and second that they had done so for the good of the public. For obvious reasons, Mezzara had no hope of mounting a truth defense. Aaron Palmer wasn’t hiding a pair of ass’s ears under his top hat. At the same time, that was a moot point because of course he wasn’t. Mezzara never intended for the painting to be taken as true, and nobody ever would. Moreover, he had not “published” his painting for the good of the public; he shared it with others for the manifest purpose of embarrassing Palmer. We’ll hear how he fared at his trial after a quick break.
The Case for the Prosecution
On the morning of August 4, Mezzara’s trial opened in the Court of General Sessions, housed in City Hall and presided over by New York’s mayor, Jacob Radcliffe, who also served as judge. The proceedings commenced with a reading of the indictment. It accused Mezzara of bringing Palmer “into public hatred, ridicule, and contempt, on the 30th day of July…at the city of New York, [when he] falsely and deliberately did make, utter, or publish a certain picture, portrait or resemblance of the same Aaron H. Palmer, with the ears of an Ass.” It went on to allege that Mezzara had exposed the poor lawyer to “public hatred, ridicule, and contempt” by advertising the portrait in the Republican Chronicle.
The prosecution called several witnesses we’ve already heard about: Deputy Sheriff Brewster, who picked up the painting and conveyed it to the auction house; journalist Samuel Woodworth, who helped write the ad for the Republican Chronicle; Aaron Palmer and his two friends, who saw the portrait before the addition of ass’s ears.
Then came testimony from an unexpected source. In a surprising—not to mention humiliating—twist, painter John Wesley Jarvis was also sworn in to testify against Mezzara. Jarvis had seen the allegedly libelous portrait before and after the addition of the offensive ears. Jarvis had side-eyed the original painting—he deemed it “an imperfect likeness” of Palmer. He added that the work was more of a “botch than the performance of an accomplished artist.” This in itself would have diminished Mezzara in the eyes of the jury. Jarvis was not any ordinary painter. At the time of the trial, he ranked as New York’s most celebrated portraitist. Two years earlier, the city had commissioned him to paint six full-length portraits of naval officers who had served with distinction in the War of 1812. These monumental works hung in City Hall, the very building where Mezzara was on trial. If Jarvis called your portrait garbage, New Yorkers took his word for it. But the worst was yet to come. After the auction, Jarvis saw the defendant parading the portrait “seemingly in a triumphant manner, down Pine Street, with the appendage of the Ass’s ears.” There Mezzara was, displaying his portrait in public yet again, and his exultations helped establish his state of mind at the time: He intended to make a mockery of Palmer; he made a mockery of Palmer; and enjoyed every minute of it.
The Defense
If anyone had his work cut out for him, it was Mezzara’s attorney, J.C.P. Sampson. In terms of the presentation of his arguments, he acquitted himself well. Newspaper coverage praised him for “the energy and humor” with which he argued on his client’s behalf. Armed with witticisms that invited the jury to laugh the case out of court, Sampson hammered home four major points:
First, when Palmer refused to pay Mezzara, he relinquished all rights to the portrait. Mezzara was thus free to do whatever he wanted with it.
Second, the prosecution charged that Mezzara had made the outrageous portrait public. But Mezzara had never done any such thing! In a dazzling display of courtroom sophistry, Sampson argued that if anyone had made the insulting picture public, it was Deputy Sheriff Jonathan Brewster, since he was the one who took the portrait to the auction house. But wait, why did he do that? So that Mezzara could pay Palmer’s legal fees. In a sense, by delivering the portrait, Brewster was acting Palmer’s on behalf, doing what Palmer wanted him to do. If Brewster was acting on Palmer’s behalf, then Palmer was ultimately responsible for publishing the portrait. If you stop and think about it, he had libeled himself.
Arguments three and four revolved around another matter: was the portrait in question actually a picture of Palmer?
Argument Number Three: look folks, the portrait either was or wasn’t a likeness of Palmer. If it was, then Palmer should have paid. If it wasn’t, then no one would associate the image with him, so what’s the big deal? Witnesses had testified that the man in the picture looked nothing like Palmer.
Finally, Sampson settled the question of whether the picture was—or wasn’t—a picture of Palmer. It most assuredly wasn’t, and he was happy to explain why. After Palmer reneged on his agreement with Mezzara, the artist was desperate to recoup the time and money he had lost while painting the picture. What he was left with was a portrait of a random lawyer from New York. Nobody would buy that, so Mezzara, man of genius, refashioned the picture as a more desirable commodity. All he had to do was add a pair of ass’s ears and—voila!—now he had a picture of the mythological king, Midas. Fans of Greek and Roman literature would go crazy for the portrait.
If you’ve heard of King Midas, you probably know that his touch could turn ordinary objects to gold. Well, there’s more to his story, and Sampson argued that Mezzara had painted a lesser-known episode from Ovid’s Metamorphoses, written during the reign of Caesar Augustus. In the Metamorphoses, Midas gets roped into judging a music contest between the satyr Pan and the Olympian deity, Apollo, who (among other day jobs) is the patron god of music. While Pan plays a simple rustic ditty on his reed pipes, Apollo coaxes heavenly tones from his lyre. Having heard both performances, Midas casts his vote for Pan—a colossal miscalculation, it turns out. Resentful that his sophisticated melodies have lost to Pan’s piping, Apollo causes Midas to sprout ass’s ears—an act of poetic justice. Midas makes plain that he cannot hear the difference between good music and bad, so Apollo curses him with ears that reflect his unrefined taste. Humiliated, Midas hides his floppy appendages under a red turban, only removing it to have his hair cut.
Verdict and Aftermath
When both sides had made their cases, Mayor Radcliffe turned to instruct the members of jury. He began by cautioning them to take the case seriously, even if much of it was manifestly absurd. The defendant stood accused of libel, which the judge defined as, “Any publication, picture, or sign, made with a mischievous or malicious design, which holds up any person to public contempt and ridicule.” Then, he highlighted a whole lot of evidence that did not look good for Mezzara, particularly his clear efforts to embarrass Palmer. Not surprisingly, perhaps, he directed the jury to disregard the elaborate Midas defense as it was “so distant, and had so little application to the case.”
Based on Judge Radcliffe’s instructions, conviction appeared inevitable, and there was every reason to suspect that the case would be over in a matter of minutes. At this point in history, it was not uncommon for jurors to confer briefly and announce a verdict without even leaving the courtroom. When they did deliberate elsewhere, they often reached a verdict in ten minutes or less, even in capital cases. As we discussed in a previous episode, that’s what happened to alleged murderer Levi Weeks in 1800. So it very likely surprised Mezzara and all involved in his trial when the jurymen withdrew at 11:00 p.m. and did not return with a decision that night. It’s unclear which issues they were wrestling with, but they must have considered the case a complex one. They debated for hours, and it was not until 9:00 the next morning that they filed back in. The verdict was guilty. Radcliffe showed a certain amount of leniency during the sentencing. Noting that Mezzara was “not a man of property and was a stranger in our country,” he imposed a fine of $100.
Mezzara’s legal woes were not over yet. Over the last two centuries, only a handful of authors have written about this case in detail. Quite by chance, I came across two archival documents that appear to have escaped the notice of earlier writers—both meeting notes from the New York City Common Council. Instead of paying his $100 fine, Mezzara appealed his case and was still busy with that headache the following year. On June 29, 1818, a letter of his was read aloud before the Council and referred to the Committee of Arts and Sciences. According to meeting notes for December 7 of the same year, Mezzara asked for permission to withdraw his appeal due to a procedural oversight on his part. The Committee on Arts and Sciences dismissed the petition. Apparently unable to resist a parting potshot, they noted that the artist’s letter had been written “in bad French.” Whether Mezzara ever paid his $100 fine is anyone’s guess.
Afterlife of a Libel Trial
After the trial, Aaron Palmer carried on as an attorney and notary. Despite his horrible experience with Mezzara, he took another shot at sitting for a portrait. The artist he went to was John Wesley Jarvis, the painter who lampooned Mezzara on the stand and became a star witness for the prosecution. (You can see the picture of Palmer on the Art of Crime website.) Jarvis may have won this opportunity partly because he testified against Mezzara. Palmer lived a successful if uneventful life and never again grabbed headlines the way he had in 1817.
As for Mezzara, he and his wife, Angelique, appear to have split their time between New York and Paris in the years following the trial. In 1819, Mezzara may have worked as one of the Big Apple’s first Italian language teachers. The next year, while still in New York, the couple celebrated the birth of their first son, Joseph. By 1825, the Mezzaras had moved to Paris. It was around this time that Angelique enjoyed ever greater success, eventually outshining Francesco as an artist. While he earned his living as an art dealer and intermittent visual artist, her work was featured in high-profile venues like the Paris Salon. The Mezzaras raised four children in their comfortable Parisian home until Francesco’s death in 1845. Three of their children—Joseph, Pierre, and their youngest daughter, Clementine—went into the arts. Perhaps most notably, Pierre moved to San Francisco and sculpted a famous bronze statue of Abraham Lincoln.
Mezzara never became the legendary artist he aspired to be (and clearly assumed he was). The only work of his to survive is that self-portrait I mentioned earlier. But he is remembered for his day in criminal court. His case set a precedent, allowing lawyers to argue that the visual arts are just as subject to charges of libel as the written word. In making an ass of Palmer, Francesco Mezzara made an ass of himself.