1. The Accession of Jefferson to the Presidency, 1801
The expiration of the Sedition Act with the end of the Adams administration brought to a close a deplorable episode in American history. The High Feder- alists led by Pickering had discovered a serious weakness in the jurispruden- tial structure of the Early American Republic. The doctrine of common-law seditious libel inherited from the English permitted the political party in power to suppress political opponents so long as the judiciary chose to follow Blackstone as its guide in determining the limited scope of the constitutional guaranties of freedom of speech and press.
Moreover, when the Federalists lost national power in1800, the evil they had introduced did not die with them. They left a corrupted political scene.
They continued to employ criminal libel for partisan purposes in the states where they were still in power. The pressures on Republicans to do the same in retaliation were well-nigh irresistible. Even Jefferson, who had so strongly condemned the process, was ready to accept it in exceptional cases.
Aroused by the vituperative attacks of the Federalist press and with the partisan usefulness of the doctrine so prominently before them, the Republicans now embraced the doctrine. In the states under their control, such as New York and Pennsylvania, they readily invoked the doctrine for partisan purposes, and on one celebrated occasion did so with a cluster of six prosecutions of Connecticut Federalists in the Connecticut federal courts as well. In brief, although historians have typically busied themselves with the15cases prosecuted under the Sedition Act and have virtually ignored the subsequent evolution of the doctrine,3the reality is that criminal libel played a continuing role of considerable importance in the party politics of the time for another 15years. These cases involved not only the continuing political rivalry between
3 Although a few celebrated cases – theCroswellcase in New York and theDennie, Duane, and Cobbettlitigations in Pennsylvania – have attracted a full measure of attention, the two dozen or so other cases have been virtually ignored.
the Federalists and Republicans, but were also prominent in the Republican internecine warfare in Pennsylvania and New York between two wings of the Republican Party struggling for control. In all, at least as many as30criminal libel cases – a half dozen federal, the balance state – have been reported during the Jefferson and Madison administrations, or twice as many as had occurred under the Sedition Act.
These30-odd cases lack the chilling drama of the earlier effort of the Fed- eralists seeking to cripple, if not destroy, the Republican press on the eve of the 1800 presidential election. However, they illustrate two vital points.
First, the thoroughly politicized press of the time – whether allied to Feder- alists or Republicans – was more vituperative and scurrilous than ever in its characterization of its political opponents. Henry Adams observed that “the summer of1802was marked by an outburst of reciprocal invective and slan- der such as could not be matched in American history.”4As noted, leading newspapers had been organized with political or even foreign funding and continued to receive financial support from persons active in the party that the editors supported. Further, as we have seen, when in power, Federalist and Republican leaders regularly saw to it that government printing contracts were awarded to their editorial supporters.5Second, criminal-libel litigation continued to be a hotly pursued vehicle for parties in power to attempt to tilt the political scales by jailing editors allied with their political opponents.
This chapter of American history did not come to a close until the Federalists virtually disappeared as a political force. It had taken almost a quarter century for the new American political system and party politics to mature to the point where attempts to destroy one’s political enemies by partisan prosecu- tions faded away. This welcome evolution mirrored a corresponding change.
The vituperative nature of the political press gradually moderated, and this provocation for resort to partisan criminal libel lost its power.
2. The Demise of Criminal Libel and Federal Criminal Common Law in the Jefferson and Madison Administrations
When Jefferson became President, federal policy changed abruptly on two related matters of grave jurisprudential importance: criminal libel and federal
4 1Henry Adams,The History of the United States During the First Administration of Thomas Jefferson219(Libr. Am.1986) (hereinafter H. Adams,Jefferson Administration).
5 As noted, theNational Intelligencerillustrates the process. Thus, Jefferson had provided financial assistance to start theNational Intelligencerand had personally selected Samuel Harrison Smith to be its editor.
Ambivalence of the Jeffersonians 151 criminal common-law jurisdiction. Jefferson wrote to his Attorney General, Levi Lincoln, early in his administration, “I would wish more to see the experiment tried of getting along without public prosecutions for libel.”6 Thus, with the exception of one episode, neither Jefferson nor Madison resort- ed to the use of prosecutions for criminal libel to harass or silence political opponents. Although Jefferson was prepared to acquiesce in the occasional use of such prosecutions to deal with a particularly offensive critic, he never participated in or encouraged such actions except on one occasion in the Pennsylvania state courts.7
Nevertheless, on isolated occasions federal officials during the Jefferson and Madison administrations used or seriously contemplated the resort to federal common-law criminal prosecutions. However, with one glaring exception, these involved litigation in implementation of federal programs, not crimi- nal libel to harass or silence Federalist newspapers or critics. The exception occurred during the winter of1805–1806during the Jefferson administration.
At the instance of the Connecticut Republican State Chairman, a zealous Connecticut Republican District Attorney and District Court Judge pro- ceeded to indict six Connecticut Federalists (including such prominent per- sons as Tapping Reeve and the publishers of the leading Federalist newspaper in the state) for seditious libel under federal criminal common-law jurisdic- tion. As far as is known, the litigation arose without the encouragement or knowledge of Jefferson. However, as we will see, Jefferson soon learned of the prosecutions and acquiesced for months before intervening, so he cannot escape responsibility.8 Let us review this record and the final moments of federal criminal common-law jurisprudence.
When Jefferson assumed office, there were still persons – Republicans all – still in jail, serving sentences under the Sedition Act. One of Jefferson’s first actions was to pardon them.9 He also considered whether to remit their fines on the theory that the Act was unconstitutional. However, he ultimately
6 Letter, Thomas Jefferson to Levi Lincoln (Mar.24,1802),8Jefferson,Writings139(Paul L. Ford ed.1897) (hereinafter Jefferson,Writings(Ford)).
7 As we will see, he gave his approval to Governor McKean of Pennsylvania when McKean expressed his distress at the vituperative nature of certain newspaper criticisms and proposed prosecution of Pennsylvania critics under Pennsylvania law. Jefferson went further and forwarded a newspaper that he found particularly offensive.SeeLetter, Thomas Jefferson to Thomas McKean (Feb.19, 1803),ibid., at218. The prosecution of William Dennie, editor of the PhiladelphiaPort Folioin the Pennsylvania courts promptly followed.See infraCh.6, text accompanying notes15–21.
8 As we will see, his intervention did not occur for months after he first learned of the prosecutions, and when it did occur, it was to prevent disclosure of a highly discreditable personal matter, rather than because of his views on federal criminal common-law prosecutions.
9 SeeLetter, Thomas Jefferson to Abigail Adams (July22,1804),11Writings of Thomas Jefferson43 (A. Lipscomb ed.1904) (hereinafter Jefferson,Writings(Lipscomb)) (“I discharged every person
decided against it. The remission issue thereupon faded away for a while.
Some years later, one of those convicted, Matthew Lyon (who had been a member of Congress from Vermont and subsequently became a member from Kentucky), sought to re-open the issue. After repeated failures, Lyon’s heirs were at last successful in persuading the Congress to remit the fine with interest in1840. Haswell’s heirs were similarly successful in1844. In the earlier stages of this campaign, a bill for remission of Lyon’s fine was accompanied by a declaration that the Act had been unconstitutional, but this addition had been dropped by the time remission was finally approved in1840.10
A second important episode in the first months of the Jefferson adminis- tration illustrates the Jeffersonian readiness to block or undermine Federalist use of seditious libel against Republican editors. In the spring of1801, two of the new Federalist Circuit Court Judges in the District of Columbia,11 James M. Marshall (brother of the Chief Justice) and William Cranch (later Reporter of the Supreme Court opinions),12were responsible for the adoption of a resolution by the three-man Circuit Court, instructing the District Attor- ney for the District of Columbia to institute a common-law criminal libel prosecution against Samuel Harrison Smith, Jefferson’s handpicked editor of the nation’s leading Republican newspaper, theNational Intelligencer. The Chief Judge of the Court, William Kilty, a Jefferson appointee,13disagreed but was outvoted.
Harrison had condemned the federal judiciaryin toto, charging in a broad- side attack that the courts had “been prompt to seizeeveryoccasion of aggran- dizing Executive power, of destroying all freedom of opinion, of executing unconstitutional laws.”14Even an editor admired for his moderation could at times be an extremist in these heated times.
under punishment or prosecution under the Sedition Act because I considered, and now consider, that law to be a nullity”).
10 SeeFrancis Wharton,State Trials of the United States During the Administrations of Washington and Adams344n.,686(1849repr.1970) (hereinafter Wharton).
11 They were among the so-called midnight judges appointed by Adams in the twilight of his administration. As to these, Jefferson wrote to Dr. Benjamin Rush a decade later “those scenes of midnight appointment, which have been condemned by all men. The last day of his political power, the last hours, and even beyond the midnight, were employed in filling all offices, and especially permanent ones [i.e., judges] with the bitter interest federalists.”Letter, Thomas Jefferson to Dr. Benjamin Rush (Jan.16,1811).13Jefferson,Writings(Lipscomb), note9, at7.
12 William Cranch was on the fringes of President Adams’s extended family. His brother Richard was married to Mary Cranch, sister of Abigail Adams.
13 Adams had nominated a Federalist, Judge Thomas Johnson of Maryland, to be Chief Judge.
However, Johnson declined, and Adams had no time to nominate a successor.
14 Jeffrey B. Morris,Calmly to Poise the Scales of Justice: A History of the Courts of the District of Columbia13–14(2001) (hereinafter Morris). Emphasis added.
Ambivalence of the Jeffersonians 153 The matter moved to the District Attorney, who as a result of Jefferson’s accession was a Republican. He balked. Although he did present the resolu- tion to the grand jury, he carefully noted the dissent of Chief Judge Kilty and did not recommend that the jury take any action. Although the jury initially returned a presentment, it considered the matter again and refused to approve an indictment, and the matter was dropped.15
A little-known episode in Kentucky in1802illustrates some minor ambiva- lence of the Jefferson administration with respect to federal criminal common- law prosecutions. John Williams and two other settlers in the Kentucky Territory had murdered three Indians. After Williams had been apprehended and taken into custody, a mob led by William Hardin overpowered the jailor, freed Williams, and subsequently blocked attempts to reapprehend him.
Informed of these developments, Jefferson’s Attorney General, Levi Lincoln, issued instructions to Gen. Dearborn, Governor of the Territory, to prosecute Hardin and his followers in the federal courts under its criminal common- law jurisdiction. Although, as we have seen, Jefferson had made clear to Lincoln his hostility to federal common-law prosecution for seditious libel, he had not expanded his statement to include federal criminal common-law prosecutions generally.16
Gen. Dearborn forwarded Lincoln’s instructions to the federal District Attorney in Kentucky, Joseph H. Daviess (brother-in-law of Chief Justice Marshall).17Before acting, Daviess, albeit a Federalist, reminded Gen. Dear- born, a Republican, “of the public heat his party had raised about the common law.” Not receiving any reply,18Daviess went ahead and succeeded in having the grand jury issue a presentment against William Hardin, leader of the rescue mob, and three of his accomplices.
TheNational Intelligencerwas more restrained in its prose and was in a different class than the vituperative press of such editors as Bache, Duane, Fenno, Cobbett, or Cooper. Nevertheless, as this incident illustrates, even theIntelligencerhad its extreme moments.
15 National Intelligencer, June12,1801. See Morris, note14, at14;2Oliver Wendell Holmes Devise, History of the Supreme Court of the United States, George Lee Haskins & Herbert A. Johnson, Foundations of Power: John Marshall, 1801–1815,161–162(1981) (hereinafter Haskins & Johnson);1 Charles Warren,The Supreme Court in United States History195–197(rev. ed.1928) (hereinafter Warren,History).
16 SeeLetter, Thomas Jefferson to Levi Lincoln (Mar.24,1802),8Jefferson,Writings(Ford), note6, at139.
17 See5Dumas Malone,Jefferson and His Time: Jefferson the President: Second Term 1805–1809,355 (2003) (hereinafter5Malone).
18 Daviess stated that he later received General Dearborn’s order forbidding him from proceeding on the ground that the offense was a common law matter.SeeHaskins & Johnson, note15, at435 n.9.
However, the matter was soon dropped. When the matter came before the Court, Daviess, mindful of the Republican position on federal criminal common-law jurisdiction, raised the question with District Judge Harry Innes.
Judge Innes promptly quashed the charge and dismissed the case. Mary Tachau provides a possible explanation. She notes that it is “possible that the whole case was a smokescreen to enable [Indian Territory] Governor Harrison to negotiate the new series of treaties with the Indians.”19 Such speculation that it was a “sham trial” is fortified by Daviess’s later role as a leader of inflamed settlers seeking to destroy the Indian presence in the area; Henry Adams, in fact, describes Daviess as sabotaging the efforts of the administration to maintain peace with Tecumseh and helping precipitate the massacre at Tippecanoe.20
United States v. Hardinwas not the only development in1802in Kentucky involving the federal law of crimes discussed by Tachau in her study of the federal courts in Kentucky during this period. Later the same year, the Kentucky federal grand jury issued presentments for the prosecution of Asa Combs and Stephen, Robert, and Daniel Kennedy for having counterfeited notes of the Bank of the United States. Although a1790federal statute made counterfeiting of U.S. certificates or securities a capital crime,21the Bank of the United States, albeit incorporated by an act of Congress, was a private bank not included under the statute. Tachau accordingly suggests that in view of the lack of statutory authority, the case must have been brought under federal criminal common-law jurisdiction. However, the Congress had enacted in June1798a statute criminalizing the counterfeiting of the notes of the Bank of the United States.22TheCombsandKennedycases most likely
19 SeeMary K. B. Tachau,Federal Courts in the Early Republic: Kentucky 1789–1816,128–133(1978) (hereinafter Tachau,Kentucky).
Jefferson a decade later used theHardincase as the framework for a complex discussion of the interrelationship of overlapping federal and state law and the unavailability of federal criminal common-law jurisdiction. Thomas Jefferson, Miscellaneous Paper, Observations on the force and obligation in the United States, on the occasion of Hardin’s case, in Kentucky, Nov.11,1812.9 Jefferson,Writings(Ford), note6, at485–489.
20 See2H. Adams,The First Jefferson Administration, note4, at365,368.
21 1Stat.115(1790). This provided: “And be it [further] enacted, that if any person or persons shall . . . counterfeit, or cause or procure to be . . . or counterfeited, or willingly act or assist in . . . counterfeiting any certificate, indent, or other public security of the United States, or shall . . . counterfeited certificate, indent or other public security, with intention to defraud any person, knowing the same to be . . . counterfeited, and shall be thereof convicted, every such person shall suffer death.”
22 1Stat.573(1798). It is of interest that in the heresies of the Federalist administration condemned in Jefferson’s draft of the Kentucky Resolution, Jefferson denounces this very statute as unconstitu- tional and along with the Alien and Sedition Acts was “altogether void, and no force.” In Jefferson’s
Ambivalence of the Jeffersonians 155 had been brought under the new statute. In any case, as with the defendants in Hardin, the cases faltered. Combs was acquitted. The suits against the Kennedy brothers were continued, but eventually abated.23
Tachau further reports another Jeffersonian effort to use a federal criminal action to silence a Federalist editor, Francis Flourney. Flourney had pub- lished an article criticizing the alliance with France and Monroe’s mission to negotiate what became the Louisiana Purchase as well as advocating Ken- tucky’s secession from the Union. In view of the strong Jeffersonian position that the federal courts had no federal common-law criminal jurisdiction, the administration did not invoke common-law seditious libel. Although alleging that the publication tended “to execute a spirit of discord, seditious discon- tent, or schism,” the federal grand jury’s presentation relied on Flourney’s alleged violation of the Logan Act for “unlawfully commencing a written correspondence, indirectly, with the French.” However, with Napoleon’s sudden readiness to consummate the sale of the entire Louisiana Territory, the matter became no longer contentious, and the federal attorney had the case dismissed.24
Still another interesting development involving the prominent Republican Alexander J. Dallas (then the United States District Attorney in Pennsylvania and later Secretary of Treasury under Madison) occurred in1804. As we will see, during the earlier Federalist administrations, Dallas had challenged the constitutionality of federal prosecutions under federal criminal common law in several leading cases.25 However, now acting as U.S. District Attorney in United States v. Passmore, he defended the use of federal criminal common- law jurisdiction to prosecute Passmore for alleged perjury in a bankruptcy proceeding.26
The Embargo and Non-Intercourse Acts provided the final occasion for the Jefferson and Madison administrations to consider reliance on federal criminal common-law prosecutions. These Acts were notably ineffective with
view, the federal government lacked the power to create federal crimes “other than those so enu- merated in the Constitution.”SeeDraft of the Kentucky Resolutions, Jefferson,Writings449–450 (Libr. Am.1984) (hereinafter Jefferson,Writings(Libr. Am.)).
23 SeeTachau,Kentucky, note19, at133–134.
24 United States v. Flourney, (D.C. Ky.1803), D.C O.S.D. Ky., Mar.14,1803,94–102. Tachau,Federal Courts in the Early Republic,136–137(1978).
25 E.g., United States v. Henfield,11F. Cas.1099,27F. Cas.713,1793U.S. App. LEXIS16,713 (C.C.D. Pa.1793) (No.6360); United States v. Worrall,2U.S. (2Dall.)384,28F. Cas.774,1798 LEXIS39(C.C.D. Pa.1798(No.16,766).
26 United States v. Passmore,4U.S. (4Dall.)372,27F. Cas.458(C.C.D. Pa.1804) (No.16005). (B.
Washington, J.) Judgment went to the defendant because of repeal of the statute, not on the issue of jurisdiction.
New England commerce struggling to survive by widespread smuggling.
Haskins and Johnson report a number of common-law criminal indictments in Richmond, Virginia, for violation of these enactments.27
One of the embargo cases,United States v. William Smith, came before Chief Justice Marshall when he was sitting as a Circuit Court Judge in Rich- mond. Marshall artfully avoided having to decide the fundamental question of whether there was a federal common law of crimes and federal criminal common-law jurisdiction. He ruled that by providing only for civil penalties in the statute, the Congress had indicated its intention that violations were not criminal. He expressly noted that there was, therefore, no occasion to rule on whether federal jurisdiction over common-law crimes existed.28Then, as we will see in the following section, the Supreme Court finally ruled in1812 inUnited States v. Hudson & Goodwin29that federal courts lacked criminal common-law jurisdiction.
Surprisingly, this did not immediately dispose of the issue once and for all.
Thus notwithstanding Marshall’s decision inUnited States v. Smithand the Supreme Court’s decision inHudson & Goodwin, the Madison administra- tion continued to give consideration to the use of federal criminal common- law prosecutions to end flagrant violations of the Embargo Act. However, when pressures developed in1814to seek such indictments, Attorney General Richard Rush firmly disapproved, noting that his own view of the unavailabil- ity of federal criminal common-law jurisdiction had been adopted, “partially at least,” by the Supreme Court.30
3. Supping with the Devil: Republican Partisan Use of Criminal Libel Against Federalist Critics in the Connecticut Federal Courts Under Federal Criminal Common Law
United States v. Tapping Reeve, United States v. Hudson & Goodwin, and three other prosecutions in Connecticut in Jefferson’s second administration
27 SeeHaskins & Johnson, note15, at638n.111; Letter, Thomas Jefferson to Albert Gallatin (Aug.11, 1808),12Jefferson,Writings(Lipscomb), note9, at121–123; RichmondEnquirer, June2,1809.
28 United States v. William Smith, (C.C.D. Va.1808) (Order Book No.7, June2,1809,265; Richmond Enquirer, June2,1809.SeeKatherine Preyer, Jurisdiction to Punish: Federal Authority. Federalism, and the Common Law of Crimes in the Early Republic,4Law & Hist. Rev.223,246(1986) (hereinafter Preyer).
29 United States v. Hudson & Goodwin,11U.S. (7Cranch)32,1812U.S. LEXIS365(1812).
30 Letter, Richard Rush to the United States District Attorney, Boston, Mass. (July28,1814),1Warren, note15, at439. It is noteworthy that the Attorney General was not ready to assert that the Supreme Court had stripped the federal courts ofallcriminal common-law jurisdiction. He may have been concerned about the possible existence of such jurisdiction for crimes under the law of nations or in admiralty.