1. United States v. David Brown; United States v. Benjamin Fairbanks, the Dedham, Mass., Liberty Pole Activists
David Brown and Benjamin Fairbanks were staunch Republicans in Fed- eralist Dedham, Mass., who found themselves indicted under the Sedition Act221for following the Revolutionary War practice of the erection of Liberty Poles to symbolize the democratic struggle for both freedom of speech and for independence. As we have seen, by the time of the Adams administration, Federalists for their part looked at the latter day Liberty Poles as “emblems of sedition” and as “a rallying point of insurrection and civil war,”222 while
221Charles Warren and J. M. Smith provide the fullest accounts of the Brown and Fairbanks episode.
SeeWarren,Junto, note15, at103–112; J. M. Smith, note19, at257–270.
222SeeWarren,Junto, note15, at103–105. Although the Dedham, Mass., Liberty Pole incident is the only one that led to litigation under the Sedition Act, there were numerous other instances of Republicans erecting Poles and provoking violent reaction from Federalists. Such confrontations occurred during this period in Reading, Pa., Newburgh, N.Y., Blockley, Pa., and Wallingford, Vt.
SeeBell, note126, at9; Rosenfeld, note25, at199,579–580,615–616,620–621. The Liberty Pole erected in Wallingford, Vt., was in protest against the Federalist-sponsored Stamp Tax. It was seen as a result of the poison of Lyon’s efforts.SeeWilliam A. Robinson,Jeffersonian Democracy in New England21(1916);United States Chronicle, Apr.25,1799; ColumbiaCentinel, Jan.24,1798; Federal Gazetteand BaltimoreAdvertiser, Jan.1789; HartfordAmerican Mercury, Jan.29,1798 (“Many high words past but no killing, wrongdoing or fighting, as has been reported”). However, the Pole was cut down “burnt . . . and the ashes scattered to the wind.” Other Poles were reported in New York, some with the inscriptionLiberty or Death, no Stamp Act Duties. Republicans erected still other poles in upstate New York.SeeJ. M. Smith, note19, at398–399.
Three Cases Involving Republican Activists 135 to the Republicans they were symbols of free speech. Of course, during the Revolution, they had been symbols of both.
As we have seen, encouragement of the erection of Liberty Poles had been part of the complaints against Thomas Adams and Ann Greenleaf. Still earlier, at the time of the Whiskey Rebellion, a Justice of the Peace had been ordered to show cause why an information for a misdemeanor for malfeasance of office for not actively assisting in suppressing a riot over a Liberty Pole. The Court explained:
The setting up of a pole at any time, in a tumultuous manner, with arms, is a riot; but such an erection, when the army were known to have been on their march in support of the constitution and the laws, could only be attributed to an avowed design of giving aid to the insurgents, and intimidating the executives of government.223
Led by David Brown, an itinerant Republican activist stumping Massachusetts
“inveighing” against the Sedition Act,224 Dedham Republicans erected a Liberty Pole in October1798. The Dedham Pole called for:
. . .
No Stamp Tax, No Sedition, No Alien Bills, No Land Tax Downfall to the Tyrants of America
Peace and Retirement to the President
Long Live the Vice President and the Minority May Moral Virtue be the Basis of Civil Government225
The Federalist governmental machinery went into action. A federal mar- shal promptly obtained an order from District Judge Lowell “to demolish the . . . symbol of sedition.” Before the marshal could do so, however, local Federalists cut the Pole down.
A hunt for those responsible for the construction of the Pole commenced.
Brown, the leader, fled the area. However, Benjamin Fairbanks, one of those involved in the erection of the pole, was promptly arrested on November6, 1798, and charged with “being an accessory in erecting this rallying point of insurrection and civil war.” He was bound over for trial for violation of the Sedition Act at the June1799Term of the US. Circuit Court in Boston.
Fairbanks, a man of means, was able to raise his $4,000bail and escaped confinement before trial.
223Respublica v. Daniel Montgomery,1Yeates419,422,1795LEXIS5∗4(1795).
224See3Doc. Hist. Sup. Ct., note6, at320.
225BostonIndependent Chronicle, Nov.12,1798. See J. M. Smith, note19, at260.
Brown managed to escape arrest for several months, but was at last appre- hended in March1799, with “seditious” publications in his possession. Brown, a poor man, was unable to post the $4,000bail required and remained in jail.
The two defendants were very different people. Brown, a Revolutionary War veteran, has been described as a common laborer with little schooling and little money, who toured Massachusetts speaking on politics. Benjamin Fair- banks, a supporter, was a wealthy farmer, a former Selectman, and a devoted Republican.226
Trial took place at the June1799Term of the U.S. Circuit Court in Boston before Supreme Court Justice Samuel Chase and District Judge John Lowell.
Although Brown changed his original plea of not guilty to guilty, he utterly refused to cooperate with the prosecution or to disclose the names of his associates or supporters.227 Justice Chase and Judge Lowell responded with the most severe sentence of imprisonment imposed on any person convicted under the Act. They vindictively sentenced Brown to jail for18months and fined him $480, an enormous sum for a poor man, with the imprisonment to continue until the fine was paid. Brown served his full term. However, unable to pay the fine, he remained in jail. Adams twice refused to pardon him.228 Thus, Brown was not released until Jefferson became President and finally pardoned him along with all the others convicted under the Act. Jefferson went further and was one of the group who contributed to the payment of Brown’s fine.229
In contrast to Brown’s defiant position, Fairbanks humbled himself before the Court. On changing his not guilty plea to guilty, he admitted his presence at the raising of the Pole and apologized to the Court. Claiming that he had been misled, he appealed for clemency. He was supported by Congressman Fisher Ames, a prominent High Federalist and a fellow resident of Dedham, who appeared to request leniency for him.230Ames was successful, and Fair- banks benefited from the influence brought to bear. Whereas Brown, a poor man, received the heaviest sentence under the Act, Justice Chase and Judge
226SeeJ. M. Smith, note19, at261,265; Miller, note4, at119.
227SeeJ. M. Smith, note19, at267.
228Letter, John Adams to Timothy Pickering (June19,1800),Miscellaneous Letters of John Adams, 1800, Dep’t. of State.SeeAnderson, note16, at125; J. M. Smith, note19, at268.
229Seenote149.
230There is a further link between the Ames family and the trials of Brown and Fairbanks. Fisher Ames, the ardent Federalist, had a Republican brother, Dr. Nathaniel Ames, who had been subpoenaed to testify at the Brown trial. He failed to appear and was arrested. Before Supreme Court Justice William Cushing and District Judge Lowell in the Circuit Court, he defended alleging that the service had been defective. Like wealthy Fairbanks, he, too, received a slap on the wrist, being fined $8.00.SeeJ. M. Smith, note19, at269–270.
Three Cases Involving Republican Activists 137 Lowell gave Fairbanks, a wealthy property owner, the lightest sentence of any, letting him off with six hours imprisonment and a fine of $5.00with costs of
$10.60. This was a sorry contrast to the harsh treatment of Brown.
2. United States v. Jedidiah Peck, New York Legislator
Later in1799, proceedings instituted against a relatively minor New York legislator, Jedidiah Peck, a Revolutionary War veteran, demonstrated the limits of governmental power in the face of fierce public resentment.231While serving as a judge of the state Court of Common Pleas, Peck had been elected to the Legislature as a Federalist. Breaking with the party over the Sedition Act, he publicly opposed a Federalist motion in the Legislature to reject the Virginia and Kentucky Resolutions and supported the unsuccessful Republican motions to declare the Act unconstitutional. He later supported another Republican proposal to adopt popular election for the New York electors of the Electoral College. In reprisal, the Federalists were successful in removing him as a judge and opposed his reelection to the Legislature.
Nevertheless, he was reelected as a “Democratic-Republican.”
In the summer of1799, Peck sent to Congress a petition calling for the repeal of the Sedition Act and began to circulate it among his constituents, soliciting their signatures. In a lamentable loss of judgment that illustrates the extreme partisan feeling of the times, a Federalist local county judge, William Cooper, considered even the mere circulation of the petition to be a violation of the Sedition Act and recommended that he be indicted.232 Federalist District Attorney Harison promptly obtained the indictment for violation of the Sedition Act.233 After Peck’s arrest (allegedly at midnight according to his supporters) and arraignment in Albany, N.Y., in September 1799, trial was set for New York City at the April1800 Term of the Circuit Court. Still in custody, Peck was forced to travel to New York City to await trial, while manacled and under armed guard. The trip to New York City took five days and, according to historian Jabez Hammond, turned into a
“triumphal” procession. Hammond wrote: “A hundred missionaries in the cause of democracy stationed between New York and Cooperstown could
231For accounts of the Peck affair,seeJ. M. Smith, note19, at390–398; Elkins & McKitrick, note 111, at705; Rosenfeld, note25, at689–690,700,704;3Beveridge, note91, at42.
232Thus, Peck was one of the few cases under the Sedition Act that developed from local pressures.
233United States v. Jedidiah Peck, Records of the U.S. Circuit Court, Southern District of N.Y., Sept.
4,1799, RG21(National Archives);15Oliver Wolcott Papers60(Conn. Hist. Soc’y.) (containing broadside about the proceeding).
not have done so much for the Republican cause as this journey of Judge Peck, a public exhibition of the suffering of a martyr for the freedom of speech and press.”234
Although trial had been set for April 1800, the prosecution and defense both ran into difficulties in securing the attendance of upstate witnesses in New York City to testify, and the trial had to be postponed. As the case dragged on, Harison advised Secretary of State Pickering that the case would be too expensive for a relatively minor figure. At the instruction of President Adams, Pickering left the matter for decision at Harison’s discretion.235That was the end of the case. It had accomplished nothing but to serve as a rallying point for opponents of the Adminstration. The indictment and treatment of Peck had made him a popular figure, and he was again reelected to the Legislature as a Democrat-Republican. There he achieved lasting distinction for his leadership in establishing the New York system of public education.236
3. United States v. Dr. Samuel Shaw
There are numerous references in the contemporary press to the1799arrest for violation of the Sedition Act, the 1800 trial, and the acquittal of Dr.
Samuel Shaw of Castleton, Vt. Shaw was a Republican activist known for his denunciations of the Adams administration. After his acquittal, he was elected to the Vermont Legislature; serving several terms, he was later elected to the Congress.237 With none of the details of the prosecution and trial known and the absence of judicial confirmation, however, the leading historians of the Act, led by Frank Anderson (publishing in1912) and James Morton Smith (publishing in1955), refused to acknowledge the case.238 However, a third outstanding historian, Julius Goebel, Jr. (publishing in 1972) was subsequently able to find confirmation in the federal archives. Dr. Shaw had, indeed, been tried and acquitted under the Act, just as had been reported in the press of the time.239Accordingly, theShawlitigation must be accepted as an established part of the Sedition Act history.
2341Jabez Hammond,Political Parties in the State of New York89(1852);seeJ. M. Smith, note19, at390.
235SeeLetter, Richard Harison to Timothy Pickering (Apr.10,1800),26Pickering Papers77(Mass.
Hist. Soc’y.) and Letter, Timothy Pickering to Richard Harison (Apr.22,1800),13Pickering Papers 406(Mass. Hist. Soc’y.).
236SeeSherman Williams, Jedidiah Peck, The Father of the Public School System of the State of New York,1N.Y. State Hist. Ass’n Q. J.219–240(1920); J. M. Smith, note19, at390.
237See74Vermont History174(Lynn Bonfieldet al. eds.2006).
238See J. M. Smith, note19, at185; Anderson, note16, at120.
239Ms. Docket No.26, Oct. Term1799(C.C.D. Vt.).SeeGoebel, note109, at638n.107.
Unconfirmed Cases 139 The episode further illustrates the desirability of the historians taking the newspaper evidence more seriously. After all, no fewer than five New England newspapers, including both Federalist and Democratic-Republican journals, had published references, summary references to be sure, to theShawtrial and its outcome.240Unfortunately, neither the press accounts nor Professor Goebel share with us any details of the case. However, the one fact that they do underscore is of paramount importance. TheShawcase provides the only example of an acquittal in the entire history of the Sedition Act.
At this point, this volume has examined all cases under the Act confirmed to the satisfaction of the historians. However, restricting one’s examination of the litigation to these cases does not do justice to the full extent of the impact of the Sedition Act. One cannot escape the reality that the Federalist press of the time was alive with reports of further criminal libel cases directed with partisan venom against Republican newspaper editors and adherents. Lacking confirmation in the scant judicial records available, these accounts, of course, must be received with reservations.241In addition to the cases discussed, there were reports in the press of a number of additional cases, mostly involving newspaper editors, for which satisfactory judicial confirmation is not available and about which little is known.