1. Pennsylvania
The Republicans who had bitterly criticized the Federalist use of the Sedition Act of1798to silence Republican editors found the usefulness of criminal and civil libel for partisan purposes too appealing to resist. In Pennsylvania much of this history revolves around the litigious Thomas McKean, Chief Justice from1777to1799and Governor from1800to1808. As early as1788, McKean was seeking to use criminal libel to silence critics and political opponents, and he repeatedly turned to the doctrine for the following two decades. During this period under McKean’s direction or with his encouragement, Republi- can prosecutors throughout the state instituted criminal libel actions against the most outspoken Federalist editors. As Federalists faded in popular sup- port, the triumphant Republican Party in Pennsylvania split into two bitterly opposed wings in1805– one led by Governor McKean, Alexander Dallas, and Alexander Gallatin, the other by Michael Leib and William Duane. Against this background emerged a new development. McKean shifted his target from pestiferous Federalist editors to his now even more pestiferous Republican opponent, William Duane. This use of criminal and civil libel for partisan purposes by one wing of the Republicans against the other highlights the full extent of the corruption of the political process unleashed by the Federalists with the1798Sedition Act.
This unhappy period began long before the Sedition Act, in1788 when Thomas McKean, then Chief Justice, was conducting a personal politi- cal vendetta against a bitter critic, editor Eleazer Oswald. As the decades unfolded, he had similar run-ins with such outspoken Federalist editors as John Fenno, Thomas Cobbett (“Peter Porcupine”), and Joseph Dennie. Ulti- mately, he became embroiled with a Republican political rival, the scurrilous Republican editor William Duane. These struggles took the form not only of numerous prosecutions for criminal libel, which are the subject of this chap- ter, but prosecutions for contempt of court and suits for violation of bonds to keep the peace as well. The latter topics are subjects of the succeeding chapter.
a. Republicans Against Federalists
The conduct of Chief Justice McKean in office was most vigorously attacked by two outspoken editors, first, Eleazer Oswald and, later, Thomas Cobbett
Republican Use of Repressive Doctrines 189 (writing as “Peter Porcupine”) whom we have already encountered. Mc- Kean attempted to strike back with criminal punishment of both. His first attempts at criminal punishment through criminal libel proceedings in the state courts, first against Oswald in1788and then Cobbett in1797, foundered.
The Pennsylvania grand juries refused to indict. At the same time as the1797 assault on Cobbett, according to Wharton, a comparable effort was made to indict Cobbett in the federal court, but the federal grand jury also refused to indict.1
McKean was undaunted. He subsequently turned to the institution of proceedings for contempt of court for out-of-court publications and the imposition of forfeiture proceedings on bonds for good behavior to achieve his objective of punishing these highly critical editors. Readers may refer to Chapter 7 for an extended discussion of these cases along with the other materials relating to contempt of court and bonds for good behav- ior, but certain aspects of the Cobbett litigation are relevant here because of their interrelationship to the abortive state criminal libel litigation of 1797.
Following the arrest of Cobbett for criminal libel in August1797, McKean had required Cobbett to post a bond of $2,000to assure his appearance and good behavior until his appearance at the November Term of the Court of Oyer and Terminer. When, as mentioned, the grand jury then failed to indict, the criminal libel litigation came to an end, but McKean persisted.
At his urging, the Commonwealth sued Cobbett in debt for forfeiture of his good behavior bond. It alleged that in the three-month interval between the posting of the $2,000bond and the grand jury’s rejection of the indictment, Cobbett had grossly violated the terms of his bond. In the trial on the bond, the jury found for the Commonwealth, and the bond was forfeited. Cobbett, who had defeated the criminal libel charge, fell victim to the binding over procedure. A full account of the episode appears in the discussion of good behavior bonds in Chapter7.
The Cobbett criminal libel and good behavior bond litigations did not stand alone. A companion civil libel proceeding was instituted by a prominent Republican, Dr. Benjamin Rush, the distinguished physician and friend of Jefferson. After counsel for Cobbett unsuccessfully tried to get the case away from the Pennsylvania courts, seeking to remove the proceeding to the federal
1 See Francis Wharton,State Trials of the United States During the Administrations of Washington and Adams,329(1849repr.1970) (hereinafter Wharton).
court,2 the case went to trial. Dr. Rush prevailed and was awarded the then enormous sum of $5,000in damages.
Cobbett was crushed. Unable to pay the judgment, he fled the state and settled in New York. He started a new paper,The Rush-Light, and hastened to even scores with Rush. Pointing to Dr. Rush’s standard regimen of violent purges and copious bleeding for patients stricken with yellow fever, Cobbett in the February28, 1800, edition of the Rush-Light sardonically described Rush’s procedures as “one of the great discoveries . . . which have contributed to the depopulation of the earth.”
However, Cobbett could not stay long in New York. After a few months, he disappeared from the American scene. Moving to England in June1800, he resumed his scurrilous journalistic career.3Prominent Republicans McKean and Rush had successfully managed to use legal proceedings as the weapon to drive one of the most outspoken Federalist editors in Pennsylvania out of the country. TheCobbettlitigation was not the only partisan libel proceeding by leading Pennsylvania Republicans against Federalist editors at the close of the18th century. Still another outspoken Federalist editor, John Fenno, was the defendant in partisan criminal libel proceedings in Pennsylvania at the same time that Federalist prosecutors were still bringing cases under the 1798Act. Fenno was one of the most vituperative Federalist editors. As Miller describes him, “in name calling, scurrility, and harshness of tone” Fenno’s Gazettewas an “equal match” for the extreme RepublicanAurora,4 known for its outrageous prose.
As with so many other of the editors of the time, Fenno (and his son John Ward Fenno who succeeded him) were supported financially by one of the contending political parties or by a foreign power, such as Britain. Corrupted by their acceptance of such financial support, the papers tended to support their sponsor’s interests without restraint. In Fenno’s case, he was on the Federalist payroll. He had an appointment as the Official Printer of the U.S.
Senate reported to be worth $2,000or $2,500per annum.5John Ward Fenno was later subsidized by Alexander Hamilton and other prominent Federalists.
The Republican McKean was not the only imperious Pennsylvania judge who sought to use his judicial office to punish newspaper critics who were political opponents. He may be paired with Alexander Addison, Presiding
2 Benjamin Rush v. William Cobbett,2Yeates275,276;1798Pa. LEXIS7(1798).SeeT. Carpenter, A Report of an Action for Libel Brought by Dr. Benjamin Rush Against William Cobbett(1800).
3 SeeJohn C. Miller,Crisis in Freedom: The Alien and Sedition Acts229(1952) (hereinafter Miller).
4 Ibid., at30.
5 Gazette of the United States, Aug.8,1792, reprinted in theNational Gazette.
Republican Use of Repressive Doctrines 191 Judge of the Sixth Pennsylvania Common Pleas Court.6A dedicated Feder- alist, Addison is best known today for his outspoken defense of the Sedition Act.7 Like McKean and his unremitting campaign to punish, first, Oswald and then Cobbett, Addison conducted a feud with John Israel, publisher of the Washington Herald of Liberty and the Pittsburgh Tree of Liberty.
Israel was a leader of Western Pennsylvania Republicans. Closely allied with Gallatin, Israel played a prominent role in Gallatin’s first successful run for the Congress.
Addison sought no fewer than three indictments for criminal libel against Israel in two years. The grand jury twice refused to vote indictments, but Addison persisted and was at last successful the third time. However, at the trial, Israel was acquitted. Not content with these criminal prosecutions, Addison joined two other Federalists and sued Israel for civil libel; the out- come of that suit is unknown.
During this period, Addison’s Federalist press allies, such as John Scull of the PittsburghGazette, waged a press campaign against Israel that in one respect was unique for the time. It was not only vicious, but also anti-Semitic.
Scull drew nasty insinuations from the fact that Israel, an Episcopalian, had a Jewish grandfather.8
Several newspaper accounts report acivillibel action instituted about this time by the distinguished Republican lawyer Alexander J. Dallas against Fenno in the Pennsylvania courts for an article in Fenno’s paper, theUnited States Gazette. They report that in the last week of November 1800, the Pennsylvania Supreme Court decided Dallas’s civil action by default and that the jury brought in a verdict, variously reported as $2,500and $2,000. These newspaper accounts agree that as a result of a clerical error in the jury report, the award was to be reduced to $1,000.9 A subsequent account asserts that the Supreme Court hadfinedFenno $1,000in the suit brought by Dallas.10Compounding the confusion, a fourth newspaper report, describing the action as criminal, asserts that Fenno was convicted and fined $2,500.11
6 In politicized Pennsylvania, Federalist Addison was impeached in1803and removed from office by a Republican-dominated Legislature.SeeGail S. Rowe,Thomas McKean: The Shaping of an American Republicanism339(1978) (hereinafter G. S. Rowe).
7 SeeCh.4, text accompanying note52.
8 See Jeffrey L. Pasley, “The Tyranny of Printers”: Newspaper Politics in the Early American Republic 170–171,437n.12(2001) (hereinafter Pasley).
9 Commercial Advertiser, Dec.1,1800($2,000); Jenks’sPortland Gazette, Dec.5,1800($2,500).
10 New LondonBee, Dec.17,1800.
11 Gazette of the United States, Dec.15,1800.SeeMiller, note3, at229. The conflicting reports in the press highlights the difficulties of relying on newspaper accounts for precise details of any cases not officially reported. However, the reports cannot be ignored. Whatever the precise nature of
Whether the action was criminal or civil, the Federalists bitterly criti- cized the result. They contrasted the heavy damages or fine with the $200 fine imposed on Republican editor Abijah Adams at much the same time by a Massachusetts court for a like offense against President Adams12 and bemoaned the lack of equal justice.13 In the states where Federalists were in power, Republicans similarly lamented the disproportionately heavy sen- tences on Republican editors convicted in libel cases.14 In sum, the courts had lost credibility. It made no difference which party was in power. In the institution and conduct of these cases, the prosecution and the judges – and, in particular, the sentence after conviction – were all perceived by their politi- cal opponents as highly partisan. The complaints were typically accompanied by charges that the juries, grand and petit, had been politically selected and had been “packed” with supporters of the prosecuting party.
As noted, a little more than a year after the close of the Fenno prosecution, Governor McKean and President Jefferson exchanged important letters that may help explain the subsequent march of events. McKean wrote to Jefferson on February3,1803, finding “intolerable” the “infamous & criminal libels, punished almost daily in our newspapers” and wondered whether a “few prosecutions” might ease the problem. Writing for Jefferson’s “advice and consent” before he proceeded, he characterized the situation as a national vice that “call[ed] aloud for redress.”15
Jefferson, like Washington and Adams before him, had been sickened by the vituperative comments about him and his conduct in office. Jefferson promptly responded to McKean, readily agreeing on the “licentiousness [of the press] and its lying,” and sending along an unidentified paper to “make
the proccedings may have been, it would seem clear that there had been a libel proceeding, that Dallas had been upheld and that Fenno had lost, and that a penalty ranging from $1,000to $2,500 had been imposed on Fenno.
12 SeeCh.5, text accompanying notes128–129. The sentence imposed on Adams was one month’s imprisonment, a good behavior bond, and costs.
13 The Nov.28,1800,Gazette of the United Statesreported that the Fenno case involved a libel of Dallas “a foreigner” and “for this he is to paytwo thousand five hundred!!!!!!!!!!!!!!!!! [sic] How much better is a foreigner than an American? Had we not better all turn foreigners, says Pat.”
Readers will note the xenophobic slur on Irish immigrants.See also Gazette of the United States, Dec.15,1800.
14 When the publisher of the Republican HartfordAmerican Mercurywas convicted of criminal libel and fined $1,000in the Federalist-dominated state court, the newspaper protested: “We live in a conquered country.” HartfordAmerican Mercury, Jan.3,1806.
15 Letter, Thomas McKean to Thomas Jefferson (Feb.7,1803),4Dumas Malone,Jefferson the President: First Term, 1801–1805,229(1970) (hereinafter4Malone),Seealso G. S. Rowe, note6, at337.
Republican Use of Repressive Doctrines 193 an example of.” McKean had asked for his approval of the prosecutions, and Jefferson expressly assented, writing:
This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the states are sufficient for this if applied. And I have therefore long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. [Not a] general prosecution, for that would look like persecution: but a selected one.16 This is the letter that is prominently cited by Jefferson’s critics intent on showing that whatever his professed allegiance of freedom of speech, he, too, had his “darker side,” in Leonard W. Levy’s phrase, and was prepared on occasion to attempt to suppress dissent.17 These critics fail to recognize that in the light of the jurisprudence of the day, Jefferson was one of the most moderate political figures. Instead, they hold him out as a hypocrite by contrasting his restrained response with their perception of him as a person posing as a modern absolutist on the unlimited scope of freedom of speech two hundred years ahead of his time.
It is not known which was the “unidentified paper” to which Jefferson referred. There is some basis for supposing that it was the PhiladelphiaPort Folio18 published by the rabid Federalist editor Joseph Dennie, who was as scurrilous on his side of the political divide as his political ally William Cobbett (“Peter Porcupine”), had been before him, and as his political rival William Duane was on the other.19
In the issues of the Port Folio in the period immediately before Jeffer- son’s letter, Dennie had ridiculed Jefferson and his relationship with Sally
16 Letter, Thomas Jefferson to Thomas McKean (Feb.19,1803),9Jefferson,Writings449(Paul L.
Ford ed.1904) (hereinafter Jefferson (Ford)).
17 Leonard W. Levy,Jefferson and Civil Liberties: The Darker Side(1963);2William W. Crosskey, Politics and the Constitution in the History of the United States776–784,1356–1358(1953).
18 Among those suggesting that this is likely are the biographers of Jefferson and McKean.See4 Malone, note15, at230–231; G. S. Rowe, note6, at337–338.
19 Dennie had previously been private secretary to Secretary of State Pickering and an editor of theGazette of the United States, another High Federalist organ.SeeJames M. Smith,Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties329n.47(1956) (hereinafter J.
M. Smith).
He was a complex individual. Henry Adams noted that Dennie’s paper, the PhiladelphiaPort Folio, was also the “sole source of light literature in the country at the turn of the century.”
SeeHenry Adams,History of the United States During the Second Madison Administration1317 (Libr. Am.1986). Moreover, Adams’s father, John Quincy Adams, a prolific author, in this period regularly published his own literary attempts in thePort Folio. SeePaul Nagle,John Quincy Adams: A Public Life, A Personal Life122,220(1991).
Hemings. Dennie referred to “the indulgence of Sally, the sable, and the auspicious arrival of Tom Paine, the pious.” A week later Dennie borrowed from Callender and mocked Jefferson’s “tricks with sooty Sal.”20
Whether that was the contributing event or not, the fact is that at the July1803Term, at McKean’s instigation, Attorney General William McKean (the Governor’s son) successfully obtained an indictment against Dennie for criminal libel under Pennsylvania criminal common law. The comments on Jefferson were not the basis of the indictment. Instead, the indictment cited Dennie’s denunciation of democracy, citing examples from Athens, Sparta, Rome, France, and England in thePort Folio of April23,1803.21 The case was postponed a number of times. Before it came to trial, it was joined by a number of other political libel cases, all but one of which had been instituted by Governor McKean.
b. Republicans Against Republicans
During the summer of1805, the struggle in the Republican Party over the 1806nomination for Governor provoked an outpouring of litigation. The rad- ical wing of the Republicans led by Dr. Michael Leib and William Duane22 was seeking to block McKean’s renomination. In the struggle that followed,
20 Port Folio, Jan.15,1803, Jan.22,1803.See4Malone, note15, at230–231; G. S. Rowe, note6, at338.
21 See Port Folio, Apr.23,1803. The temper of the times is apparent in the description of Den- nie in the indictment. Justice Yeates’s charge instructed the jury that the indictment described Dennie as
a factious and seditious person, of a wicked mind, and unquiet and turbulent disposition and conversation, seditiously, maliciously and wilfully intending, as much as in him lay, to bring into contempt and hatred, the independence of the United States, the constitution of this commonwealth and of the United States, to excite popular discontent and dissatisfaction against the scheme of polity instituted and upon trial in the said United States, and in the said commonwealth, to molest, disturb and destroy the peace and public tranquility of the said United States, and of the said commonwealth, to condemn the principles of the revolution, and revile, depreciate and scandalize the characters of the revolutionary Patriots and statesmen, to endanger, subvert and totally destroy the republican constitutions and free governments of the said United States, and this commonwealth, to involve the said United States, and this commonwealth in civil war, desolation and anarchy, and to procure by art and force, a radical change and alteration in the principles and forms of the said constitutions and governments, without the free will, wish and concurrence of the people of the said United States, and this commonwealth respectively.
Respublica v. Joseph Dennie,4Yeates267,1805Pa. LEXIS38,∗2–4(1805).
22 An oddity of the period may be found in theConnecticut Courant, Aug.14,1805, containing an undated dispatch from theFreeman’s Journal. TheJournalcontained a collection of letters written by most of the defendants, including Leiper, Leib, Lawler, and Duane as well as by two others named Clay and Ferguson on the subject of public office.
Republican Use of Repressive Doctrines 195 McKean and his allies made flagrant use of libel actions against his Republi- can opponents, as well as against his traditional enemy, the Federalist editors.
There are reports of a virtual flood of criminal and civil libel proceedings instituted by McKean and his allies against the dissident Republican political figures and editors who were fighting his renomination.
In August1805, McKean’s staunch ally in this political struggle, Alexander J. Dallas, was responsible for still another libel action. As reported in satiric vein by the FederalistNew Hampshire Centinel, Dallas pronounced an elec- tioneering address by Matthew Lawler, Mayor of Philadelphia, “an infamous libel” and an “outrage” and that it was Dallas’s duty as a faithful citizen to prosecute and punish him. The Centinelmocks the participants, sneering that it involved “ merely Democrat versus Democrat – of very little moment we hope, to honest men.”23
Other proceedings instituted by McKean includedcivillibel suits against his Republican opponents, Leib and Duane. Other defendants included Lawler again, Thomas Leiper (former President of the Philadelphia City Council), and Jacob Mitchell (former member of the Pennsylvania Legis- lature). Along with others still not identified, McKean accused the defen- dants of charging him falsely with “opposing the Louisiana Purchase,” and for asserting that he headed a “monstrous combination . . . against principles and people.”24Further information about the outcome of these suits is not available.
Numerous newspapers report that McKean proceeded with two other civil libel suits in October1805. He instituted one action against two Lancaster, Pa., anti-McKean figures, Republican John Steele and Federalist William
23 New Hampshire Centinel, Aug.17,1805contains a dispatch headed Philadelphia, Aug.5,1805; NewburyportHerald, Aug.13,1805.
In fact, theUnited States Gazette, Aug.3,1805, had printed a letter from Dallas dated more than a month previously addressed to Lawler. He advised Lawler that an item bearing Lawler’s name and published in the June27,1805, PhiladelphiaAurorawas an infamous libel upon his reputation and demanded to know whether the signature was genuine. TheGazettealso printed a letter from Dallas dated July1,1806, advising that it was the “duty of a faithful citizen to prosecute and punish him” together with advertisement of $100reward for evidence that Lawler subscribed to the paper bearing his name as published in theAuroraof the previous week.
See also The Massachusetts Spyand WorcesterGazette, Aug.14,1805, containing a dispatch from the Philadelphia’sFreeman’s Journalof Aug.2referring to the litigation between Dallas and Lawler, and the political allegiances of the parties;United States Gazette, Aug.21,1805, defending Lawler.
24 United States Gazette, Oct.14,1805, Nov.6,1805,Evening Post, Nov.7,1805, andAmerican Citizen, Nov.8,1805reprintinga dispatch from the PhiladelphiaAurora, Sept.6,1806, Jan.1, 1806.
See G. S. Rowe, note6, at361; George M. Dallas, Alexander James Dallas226ff. (1871) (hereinafter Dallas).