With the election of Thomas Jefferson as President in 1800, the Federalist Party went into decline. It never regained national power and progressively lost control of the states that it had previously dominated. For a while, Mas- sachusetts and Connecticut were exceptions, and we see in these states fre- quent partisan invocation of criminal libel by Federalists upheld by Federalist judges in the first decade of the19th century.96
1. Connecticut
Following the expiration of the Sedition Act in March1801, criminal libel briefly came to an end in the federal courts. However, for at least a decade, criminal libel played a prominent role in Connecticut, punctuating the grow- ing struggle between the dominant Federalists and the emerging Republican Party. Alone among the states of the New Republic, Connecticut along with Rhode Island had no Constitution. Although Connecticut operated under the Fundamental Orders of1639and the Convention of1687, these did not begin to resemble the post-1776Constitutions of the other states. Among other omissions, they had no express constitutional guaranties of freedom of speech and press. Although Connecticut did not adopt a reception statute until much
95 NewburyportHerald, Mar.24,1807. For Jefferson, Beckley, although useful, had his limitations.
“Beckley is a man of perfect truth as to what he affirms of his own knowledge but too credulous as to what he hears from others.”See4Malone, note15, at18–19.
96 Although Republicans in Massachusetts elected their first Governor, James Sullivan, in1806, Federalist judges with lengthy terms continued to sit for years on the bench.
later, Connecticut courts followed the rigorous criminal libel doctrine of the English criminal common law until1804. Connecticut then adopted a statute entitled “An Act to Secure Freedom of the Press” that significantly liberalized the common-law doctrine. Adopting the reforms in the Sedition Act of1798, it provided that the defendant could introduce into evidence the truth of the matters contained in the alleged libel, and that the jury had the right to determine the law and the facts, subject to the direction of the court, as in other cases. In so doing, Connecticut, “the land of steady habits,” of all the states, was a year ahead of New York and20years ahead of Massachusetts in modifying its rigid common-law criminal libel laws.
After the Jeffersonian triumph of1800, Litchfield, Conn., under Federalist domination appears to have been the scene of the first skirmishes in the state courts between the Federalists and Republican spokesmen and editors. As reported by the Republican LitchfieldMonitor, Major Seth Wetmore had been indicted in September1802 for “wickedly and maliciously intending and contriving to defame and bring into contempt the laws and government of this state by publishing the “following false, scandalous, and malicious words, of and concerning the General Assembly of this state and the acts and laws thereof, viz: ‘Every man who is twenty-one years of age, and pays taxes, has a natural right to vote.’”
In moss-bound Federalist/Congregationalist-dominated Connecticut, this was political heresy. Although it is reported that there were “two of Major Wetmore’s political sentiments” (that is, Republicans) on the jury, he was convicted. The Court imposed a $100fine and costs.97The Republican New LondonBeereported a month later that Wetmore, so “lately honored by a prosecution and fine forseditionby the federal party,” had been elected by his townsmen to represent them in the Legislature.98
After an apparently peaceful three-year interval, partisan use of criminal and civil libel became pandemic in Connecticut in1806. In the state courts, there are reports of no fewer than seven different litigations in which Federalist judges imposed penalties on Republican defendants. In the same year, as we have already seen, the Republicans responded and used their control of the federal courts to institute six criminal libel cases against Federalists.
This assault of suit and countersuit continued for several years, and then resort to criminal prosecutions of this nature faded away. As we have already
97 LitchfieldMonitor, Sept. 8,1802,reprintedby theFederal Gazette, Oct.11,1802, and Albany Centinel, Oct.12,1802.
98 New LondonBee, Oct.5,1802. TheBeemistakenly used the term “sedition” to describe the case.
The offense was criminal libel.
Federalist Use of Repressive Doctrines 217 seen, none of the cases in the federal courts ever went to trial before the Supreme Court ultimately held that the federal courts lacked common-law criminal jurisdiction. As the political and legal systems of the New Republic matured, the repressive doctrines inherited from the English monarchial system gradually fell into disuse.
A brief review of the litigation in 1806 will illustrate the extent and the vigor of the prosecutions. During this unhappy period, Federalist prosecutors instituted criminal proceedings against the editors of almost all the major Republican papers in the state. These included the editors of Osborne’s LitchfieldCitizen, Babcock’s HartfordAmerican Mercury, and Osborne and Ashley’s LitchfieldWitness. In addition, as noted, Charles Holt of the New LondonBee, following his conviction under the Sedition Act, had ceased publishing theBeein Connecticut, left the state, and as we have seen com- mencing publishing another Republican newspaper, also called theBee, in Hudson, N.Y.
Much of the litigation arose in Litchfield, Conn., where the vicious struggle between the Federalists and Republicans continued unabated. On January 8,1806, the Republican LitchfieldCitizencontained a report written in the first person that the editor, Selleck Osborne, and the printer, Thomas Ashley (who were also editor and printer of the Republican LitchfieldEye Witnessor simplyWitness) had been tried for criminal libel of a prominent Federalist, Julius Deming. They had been indicted for asserting in theWitnessthat at a public meeting in the Meeting House while a vote before the divided Town Board was pending, Deming crossed the floor and reminded a Republican member (Simmons) that he was past due on repayment of his indebtedness of about $12to $15to Deming, and that in dunning Simmons, Deming acted with a view to influence his vote on the appointment of a Republican to a vacancy. Simmons ultimately acknowledged that Deming had finally said that he would not sue him if Simmons paid $10by Saturday and that he had done so.99
At the trial, the defendants’ counsel relied on the1804Connecticut statute.
However, the jury divided, voting11to1for conviction. The dissenting juror for a while refused to give up the papers pertaining to the trial, but eventually did so.100The matter then went over to the March1806Term, but the outcome of the litigation is not known.
99 Republican Watch-Tower, Sept.19,1806in article entitled “Reign of Terror.”
100 LitchfieldCitizen, Jan.8,1806; LitchfieldWatch-Tower, Jan.18,1806; HartfordAmerican Mercury, Apr.10,1806.
At this point, in early1806, another Republican newspaper editor, Major Elisha Babcock of the HartfordAmerican Mercury, was brought to court in Litchfield on a criminal libel charge instituted by a Federalist clergyman, Dan Huntington. As described in his own account in hisAmerican Mercury, Babcock was charged with a “wilful falsehood” for a statement that he believed to be correct and in violation of no law. Further, he complained that the jury rejected testimony of10to12witnesses:
It does not hurt character nor feelings nor the Law to declare of certain republican clergy-men that they are ideots [sic] and apastates [sic], nor to charge other republicans with swindling, forgery, burglary, murder.
So far from it law and religion are glorified by the very slanders. But turn the tables and a federal court and jury will discover that society is on the precipice of anarchy.
Babcock was convicted by what the American Mercury denounced as a Federalist-controlled jury and fined $1,000. TheAmerican Mercurylamented:
“We live in a conquered country.”101
At the March1806 Term, over the protests of the Republican press who denounced it as a second trial for the same offence,102the Osborne/Ashley case in which the jury had disagreed 11 to1 for conviction at the first trial was called for trial a second time. After the defendants refused to plead, the Court without further evidence pronounced “the defendants” guilty. They were subsequently fined $100plus costs and required to post bonds of $500 each to assure “good and peaceable behavior.” They were ordered imprisoned until they complied with the judgment.
In addition to the two prosecutions of Osborne and Ashley and the action against Major Babcock described above, Federalists in Litchfield successfully proceeded against Gen. Hart, the Republican candidate for Governor.103 The trial of Hart led to a still another trial and conviction of Osborne and Ashley for criminal libel. They were convicted for publishing in the Litchfield Witnesswhat, according to a sister Republican newspaper, Babcock’s Hartford American Mercury, they believed to be an accurate account of the Hart
101 HartfordAmerican Mercury, Apr.3,1806.SeeRobert Wetmore, Seditious Libel Prosecutions in1806in the Federal Court in Connecticut:United States v. Tapping Reeveand Companion Cases,57Conn. B. J.199(1983).
102 HartfordAmerican Mercury, Apr.10,1806;Sun, Apr.21,1806.
103 TheSun, Apr.21,1806reprinting Hartford dispatch dated Apr.10,1806; HartfordAmerican Mercury, Sept.4,1806. The accounts do not make it plain whether this was a criminal or civil libel action. Nor do they state what punishment or damages were awarded.
Federalist Use of Repressive Doctrines 219 trial.104 Sentence was deferred until the September 1806 Term when the court imposed a fine of $250each and costs.
The Republican press denounced this series of prosecutions. Describing these five libel actions against Republicans as “proceedings to subvert and annihilate the Freedom of the Press” and appealing to “moderate and candid federalists,” theAmerican Mercurystated: “The public are well acquainted with the unremitting exertions of federalists in Litchfield county to elect exclusively federal Jurymen and to prostitute Courts and Juries, the Palladi- ums of our Liberties, to party purposes . . . [condemning] the unprecedented conduct of the federalists in prosecuting Printers.”105
In its account, entitled the “Reign of Terror,” the RepublicanWatch-Tower condemned the trial and its aftermath. It charged that the jury were “unani- mously thorough going Federalists of the same stamp which had decided the case of Huntington and Babcock.” TheWatch-Toweradded that after being unable originally to pay the fine, Ashley sold his interest in the Litchfield papers, satisfied the fine and costs, and posted the bond for good behavior.
On the other hand, Osborne “feeling a strong wish for the continuance of the business and not willing to transfer the editorial department to ‘any class of men’ has ever since continued in close confinement, where he is now for an uncertain duration.”106 In his biography of Jefferson, Malone describes the Osborne prosecutions as a “determined effort of the local establishment to crush his paper.”107
Osborne chose to remain in jail, and his supporters claimed that he was receiving inhumane treatment at the hands of a brutal Federalist jailor. The case became a cause c´el`ebre. Even Jefferson defended the prosecutions of Tapping Reeve, Barzilai Hudson, and George Goodwin and the three other Federalists by the Republican District Attorney in the Connecticut fed- eral Court as a readily understandable reaction to the brutality suffered by Osborne.108
The Federalists derided the charge and mocked the affair. TheConnecti- cut Courantindignantly exclaimed that “in Litchfield, there was a great and
104 HartfordAmerican Mercury, Apr.10,1806.
105 TheSun, Apr.21,1806,reprintingHartfordAmerican Mercury, Apr.10,1806.
106 Watch-Tower, Sept.19,1806.
107 4Malone, note15, at374; HartfordAmerican Mercury, July14,1806;Connecticut Courant, Apr.
23,1806.See alsoLetter, Thomas Seymour to Thomas Jefferson (Dec.20,1806) (William K. Bixby Collection) to which Jefferson responded. Letter, Thomas Jefferson to Thomas Seymour (Feb.
11,1807),9Jefferson,Writings(Ford), note16, at137–140.
108 SeeLetter, Thomas Jefferson to Gideon Granger (Oct.9,1806) (Libr. Cong.28,332–28,334).See 5Malone, note15, at380.
grand collection to sympathize with Selleck Osborne who was imprisoned for publishing a criminal libel on the government of this state.” Another Feder- alist paper, theConnecticut Gazette and Commercial Intelligencer, ridiculed complaints about Osborne’s imprisonment: “The whole of this noise about Osborn’s imprisonment is an unprincipled farce.” It noted that Osborne’s imprisonment had occurred only because of his refusal to post bail and fur- ther asserted that he had refused the Sheriff’s offer, without bail, to have the liberty of the yard.109
The furor continued. On August 6,1806, the Republicans conducted a festival in Litchfield to honor Osborne, with a procession of approximately 1,000supporters parading past and saluting Osborne as he stood looking out from his jail window. After the parade, the procession marched to a meeting house. At this point, a local Republican lawyer, Joseph L. Smith, seized a77- year-old minister and ordered him out of the meeting house.110The Litchfield community condemned the action, and Smith as a result lost most of his law practice and finally left the state.111
The Federalist public pamphlet describing the affair as Federalists saw it provides a keen insight into the vituperative nature of the debate. The Federalists charged:
“10: That Seleck Osborne came to Litchfield without property and esteemed only for his impudence and blackguardism.
11. That Seleck Osborne is the instrument of certain furious and unprincipled jacobins.
12. That The Witness is notoriously the most foul and scurrilous paper printed in the United States.
13. That Osborne practices a daily butchery of character and has published an atrocious libel on Julius Deming, a man of great worth.
14. That Sheriff Landon practiced no cruelty toward Osborne, but showed him more lenity than such an unprincipled offender could expect.112
109 Connecticut Courant, Mar.2,1806;Connecticut Gazette & Commercial Intelligencer, July30, 1806.
110 LitchfieldMonitor, Aug.13,1806;Connecticut Courant, Aug.20,1806.
111 Dwight C. Kilbourn,Biographical Sketches of Bench and Bar of Litchfield County 1709–1909, 290(1909). Smith served in the War of1812in which he became a major, emigrated to Florida, and finally sat as the federal judge for the District of Florida from1823to1827. He was married to the daughter of Ephraim Kirby, a well-known Republican. Kirby’sConnecticut Reportswith cases commencing in1792along with Dallas’s report of Pennsylvania cases commencing in1798 are among the earliest of the reports of American state courts.
112 SeeHartfordAmerican Mercury, Sept.18,1806. It also claimed to contain a “refutation of many of the lies contained” in the pamphlet.
Federalist Use of Repressive Doctrines 221 The Republican press continued its assault on the Federalist conduct. The Litchfield Witness derided Federalist Governor Trumbull’s appeal of the year before calling for “harmony, peace, and unity,” contrasting it with the
$1,000judgment against Major Babcock, publisher of the Hartford Amer- ican Mercury, “by the aid of a jury composed of men the most strongly affected with the “asperities of political opinions.”113 Another Republican newspaper contrasted the prompt convictions of these Republican editors with the slow-paced, Republican-directed prosecution in the federal courts of Thomas Collier, Federalist publisher of the LitchfieldMonitor. It noted that Collier’s prosecution was still pending although he had “printed more abuse and gross calumny against the Republicans than any other printer in the State, (the printers of theConnecticut Courantexcepted.)”114
There were still other partisan libel proceedings in the Federalist campaign against the Republican press and leadership. In September1806, the Hartford American Mercuryreported that convictions or judgments had been obtained not only against Gen. Hart but also against Gen. Wilcox and Col. Tilden.
Other than the circumstances that the three defendants apparently came from Lebanon, Conn., details on these suits are not available.115
In March1807, the Newburyport Heraldreported that Thomas Collier, printer of the LitchfieldMonitor,116obtained a verdict of $400against “Selleck Osborne & Co.,” printers of theWitness.117
After1806this tidal wave of libel litigation in Connecticut seems to have come to an end. There are no further reports of Federalist prosecutions in the state courts. Although the Republican prosecutions in the federal courts remained pending for some time, all were dismissed by1808, except for the prosecutions of Hudson and Goodwin. After hanging fire for several years, those fizzled as well when the Supreme Court held that the federal courts lacked common-law criminal jurisdiction.
It is not clear why this unhappy chapter in Connecticut history had come to such an abrupt end. The struggle between the Federalists and Republicans for control of the state had clearly not gone away. Although the Republicans were steadily growing in strength, they did not elect their candidate for Governor until1818. Nor did they secure control of the Legislature as well until1818.
113 American Mercury, July31,1806,reprintingdispatch fromThe Witness.
114 HartfordAmerican Mercury, Apr.4,1806, reprinted in the HartfordWeekly Times, Jan.14,1865.
115 HartfordAmerican Mercury, Sept.4,1806.
116 Readers will recall that Collier was one of the six Connecticut Federalists indicted in the previous year by a Republican prosecutor and Republican Judge in the Federal District Court for common-law criminal libel.
117 NewburyportHerald, Mar.24,1807.
2. Massachusetts
As we have seen, Section XVI of the1780Massachusetts Constitution drafted by John Adams provided that “The liberty of the press is essential to the security of freedom in a state; it ought not, therefore, to be restrained in this Commonwealth.”118 A few years later, no fewer than four prosecutions for seditious libel of supporters of Shays’s Rebellion demonstrated that the consti- tutional provision did not eliminate the traditional common-law crime. Two prominent Western Massachusetts publishers, George Brock and Gideon Pond, had given editorial support to the Rebellion and were indicted for seditious libel. In the post-Rebellion amnesty, they were never brought to trial and, indeed, were pardoned. However, a Captain Moses Harvey was convicted of “seditious and inflammatory words” and Dr. William Whiting, a lower court judge, was also convicted for criticizing unjust laws and urging citizens lacking redress of grievance to “disturb the government.”119
As discussed in Chapter3, Chief Justice William Cushing and John Adams, principal draftsman of the Massachusetts1780Constitution, two years later discussed the impact of the Constitution’s guaranties of free speech and press on the existing common-law criminal jurisprudence. They assumed that seditious libel continued without referring to any of the four prosecutions two years earlier. Cushing’s letter had argued for the “liberty of publishing truth,” and Adams agreed that “it would be safest” to permit the admission of evidence to the jury of truth when the publication had been made “for the public good.”120
However, this did not become the Massachusetts law. On the contrary, when the issue arose shortly thereafter in the Suffolk County Court inCom- monwealth v. Freeman, the prosecutor James Sullivan (later the first Repub- lican Governor of Massachusetts) quoting from Blackstone “at interminable length” argued that the constitutional provisions did not bar common-law prosecutions based on the old Blackstonian model and, accordingly, that evi- dence of truth was not admissible. The defense did not press the issue, and the court so charged the jury. The jury, nevertheless, acquitted Freeman.121
118 See1Bernard Schwartz,The Bill of Rights: A Documentary History337,342(1971).
119 Clyde A. Duniway,The Development of Freedom of the Press in Massachusetts142n.1(1906, repr.
1969) (hereinafter Duniway); Leonard W. Levy,The Emergence of a Free Press214–215(1985).
120 SeeThe Early Law of Criminal Libel in Massachusetts,27Mass. L. Q.9,12(No.4, Oct.1947).
121 Commonwealth v. Freeman (Suffolk Cty. Ct. Mass.1790). BostonIndependent Chronicle, Feb.
24,1791.SeeDuniway, note118, at142;1Charles Warren,History of the American Bar236–239 (1911).