Commencing almost immediately after the Trenton episode, Federalist Dis- trict Attorneys in a campaign orchestrated by their supervisor, Secretary of State Timothy Pickering, began to institute proceedings under the Act directed against the editors of the major Republican papers in the major Northern cities, Philadelphia, New York, and Boston, as well as against news- paper editors in Connecticut and Vermont. As such proceedings multiplied and more Jeffersonian editors were indicted, it became plain that silencing the Republican press was the major target of the Federalist administration.
In all, eight of the 15 fully confirmed Sedition Act cases were directed against leading Republican newspapers. As we will see, the early prosecution and conviction of William Durrell, editor of the rural and less important Mt. Pleasant (N.Y.)Gazette, adds a ninth case to the suits against the Repub- lican press. Although this was the central aspect of the Federalist campaign, as we have seen, it followed upon the prosecution of three criminal libel prosecutions against the editors and publishers of several major Republican papers brought under federal criminal common law before the enactment of the Act. Finally, three related prosecutions of the editors of major Repub- lican newspapers were brought in the Federalist-dominated Massachusetts and New York state courts under state criminal common law. As a result of such legal intervention, whether by criminal conviction or the heavy burden of defending themselves against such litigation, five Republican papers shut down or ceased publication for a period. The Federalist campaign embrac- ing15prosecutions (three at federal common law, nine under the Act, and three under state laws) was tactically a great success, but utterly failed in its
108SeePrice, note105, at39.
stragetic objective of silencing, or even intimidating, the Republican press. In the1800elections, the Federalists lost the presidency and were overwhelmed by a Republican congressional sweep.
These were early times in the New Republic. As discussed, official judicial reports for the period are unavailable or regrettably incomplete. Scholars interested in the period have to rely in many cases on secondary accounts of uncertain usefulness. Only15, or a mere half of the30odd cases in issue, have judicial confirmation. Of those with such confirmation, there are only several patchy official reports,109 and only four more are discussed in some detail in Francis Wharton’s invaluable collection of “State Trials” published in1847.110For the rest, scholars must rely on newspaper reports and elliptical formal notations in the sketchy courthouse records that are available. As for the newspapers, it is a question of the reliability of the various accounts and which seem sufficiently confirmed to be accepted. In this volume, all available reports are included, and readers must judge for themselves from the nature, type, and number of the references how credible the report may be. This is manifestly material, relevant evidence and cannot be dismissed out of hand as so many historians have done. The real question, as lawyers would frame it, is, having taken the press reports into account, what is the appropriate weight to be given to them under all the circumstances? From the lawyers’ point of view, any attempt to report adequately the extent of the proceedings under the Act without considering the press reports at all would inevitably result in a serious distortion of the record.
Now for the cases.
1. United States v. Matthew Lyon, Congressman from Vermont and Editor of theVermont Journal
Matthew Lyon, a particularly outspoken critic of the Federalists both in the Congress111 and in his newspaper, theVermont Journal, was the first editor
109Thus, Goebel states that the reports of the earliest of these, Alexander J. Dallas, published as vols.
I and II of theUnited States Reportswere not complete.See1Oliver Wendell Holmes Devise, History of the Supreme Court of the United States; Julius Goebel, Jr.,Antecedents and Beginnings to 1801,664–65(1972) (hereinafter Goebel).
110Francis Wharton,State Trials of the United States During the Administrations of Washington and Adams(1847) (hereinafter Wharton). Although Wharton provides detailed accounts of the prosecutions of Lyon (at333–344), Haswell (at684–687), Cooper (at659–681), and Callender (at 688–720), these are in turn based on partisan newspaper and other accounts. Wharton recognizes the possible distortions arising from the nature of his materials and seeks to balance them.Id., at 333n,344n,649n.
111Lyon was outspoken and uncouth. When Federalist Roger Griswold of Connecticut ridiculed Lyon’s war record, Lyon, who had fought at the Battles of Bennington and Saratoga, spat in his
The Major Federalist Onslaught 103 prosecuted of the group of Jeffersonian newspaper editors singled out in the first days after the enactment of the Sedition Act.112 The proceedings got under way with remarkable speed, taking less than a week from indictment to conviction and sentence.
On October 5, 1798, a Thursday, a grand jury in Rutland, Vt., indicted Lyon for the publication of criminal libels in violation of the Act. Lyon was charged with having acted with intent “to stir up sedition, and to bring the President and government of the United States into contempt.” Lyon had allegedly asserted that President Adams had allowed “every consideration of the public welfare [to have been] swallowed up in a continuous grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and a selfish avarice.” Further, Lyon had published in theJournaldiplomatic correspondence between Adams and Joel Barlow, which Adams had refused to make public, and in the process, Lyon had denounced the “bullying speech”
of Adams and the “stupid answer” of the Senate. Finally, he “wonder[ed]”
that the Congress had not answered with an “order to send [Adams] to the madhouse.” The indictment alleged that these comments were “scurrilous, feigned, false, scandalous, seditious and malicious.”113
Lyon was arrested, held in custody, and arraigned, two days later, on Satur- day, October7. After pleading not guilty, Lyon was released on bail, and on Monday, October9, four days after his arrest, went on trial before the Circuit Court, consisting of Supreme Court Justice William Paterson and District Judge Samuel Hitchcock. Lyon appeared without his counsel and argued the case himself.114 Although admitting that he had written and published the letter, he defended on the grounds that the Act was unconstitutional, and that if not, it was, nevertheless, unconstitutional to apply it to a letter written and sent before its enactment.115 He went further and argued that because
face. Griswold responded with a caning. A motion to expel Lyon from the House for the incident failed. His counsel had pointed out that the House was not in session at the time.SeeStanley Elkins & Eric McKitrick,The Age of Federalism709–710(1993) (hereinafter Elkins & McKitrick).
112For the events of the trial,seeUnited States v. Matthew Lyon,15F. Cas.1183,1798U.S. App. LEXIS 37(C.C.D. Vt.1798) (Case. No.8646); Wharton, note110, at332–344(detailed report derived from contemporary accounts in the Federalist New YorkSpectatorand the Jeffersonian Philadelphia Aurora); John Spargo,Anthony Haswell: Printer-Patriot-Ballader56–87(1925) (hereinafter Spargo) (a very full account based in part on Haswell’s own description); J. M. Smith, note19, at221–246; Goebel, note109, at638–639; Elkins & McKitrick, note111, at706–711.
113SeeWharton, note110, at334.
114Although Lyon did have counsel, they were unable to appear because of the virtual absence of notice. The Court offered a continuance, but Lyon declined. At the trial, however, Chief Justice Israel Smith of the Vermont Supreme Court did appear for Lyon. He declined to respond to the prosecution’s closing argument “in consequence of the shortness of time allowed him for preparation, having been called into the case at the bar.”SeeWharton, note110, at335.
115The allegedly libelous material was indeed contained in a letter dated July7,1798, and postmarked that day, before the Sedition Act became law on July14,1798. However, the publication did not
the statute, unlike the common law, provided that the jury was to be the judge of the law as well as the facts, just as in other matters, it was for the jury to determine the constitutionality of the Act.116Finally, Lyon concluded by contending that the publication was innocent, that is, without malicious intent to defame, as well as truthful.
During the trial Lyon is reported to have repeatedly observed that the jury was “packed” having been brought from towns “inimical” to him. However, Wharton notes that the jurors had been drawn according to a procedure established before the proceedings.117Lyon presented no witnesses, but, in an interchange that illustrates the very different judicial practices of the times, he addressed himself to Justice Paterson on the bench. He inquired whether the Justice had not frequently “dined with the President and observed his ridiculous pomp and parade?” Paterson replied that on the “rare” occasions when he had dined with the President, “he had not seen any pomp or parade, [but] on the contrary, a great deal of plainness and simplicity.”118
Rejecting Lyon’s legal arguments. Justice Paterson and Judge Hitchcock refused to allow any challenge to the constitutionality of the Act. They instructed the jury “until this law is declared null and void by a tribunal competent for the purpose, its validity cannot be disputed.”119The jury was to consider only whether Lyon had published the writing (which had been admitted) and whether he did so seditiously. As to latter issue, which was the sole issue before the jury, the jury was charged: “you will have to consider whether language such as that here complained of could have been uttered with any other intent than that of making odious or contemptible, the Presi- dent and government, and bringing them both into disrepute.” So charged, the jury found Lyon guilty within an hour.
occur until July23,1798, after the Act had become law. Publication was, thus, not barred by theex post factoprovision of the Constitution. U.S. Const. art.1, §9, cl.3.Cf. United States v. William Durrell, Minute Book,1790–1808(C.C.D. N.Y.1799) and discussioninfraaccompanying notes 217–220.
116Goebel notes that Lyon’s contention follows the comment of Senator Bayard of Delaware in the debate over the Act. Bayard, a High Federalist, had opposed the proposed amendment to the original draconian version of the Bill broadening the power of the jury to be judges of law as well as of the fact by observing that such a change would enable a jury to declare the law unconstitutional.SeeGoebel, note109, at645–646. Although Bayard had initially prevailed in the Senate, the House voted otherwise and the final Act contained the provision.
117SeeWharton, note110, at336. Writing about the partisan influence during this period in the selection of juries generally, Beveridge comments: “the juries were nothing more than machines that registered the will, opinion, or even inclination of the national judges and the United States district attorneys.”3Beveridge, note91, at42.See alsoMiller, note4, at235–236.
118SeeWharton, note110, at335.
119Ibid.
The Major Federalist Onslaught 105 The Court sentenced Lyon to four months in jail, a fine of $1,000and
$60.96costs, and continued commitment until the fine and costs had been paid in full. In so doing, the Court explained that the punishment had been mitigated in the light of Lyon’s representation that he was “almost insolvent.”
From indictment on Thursday, October5, to conviction on Monday, October 9, a mere five days of Federalist justice sufficed to move from indictment to conviction and sentence in one of the most important cases undertaken under the Act.
When Lyon was unable to pay his fine and costs aggregating $1,060and obtain his release after serving his term, his Republican allies rallied to his cause. His Vermont supporters headed by Apollo Austin, a wealthy Ver- mont Republican, and the defendant’s son, James Lyon, raised the nec- essary $1,060 from proceeds of a lottery and contributions. At the same time, Sen. Stevens Thomson Mason of Virginia, a close friend of Jeffer- son, collected contributions from leading Republicans, including Jefferson, Gallatin, Madison, Monroe, and Taylor. Mason then rode to Vermont on horseback carrying $1,060 in gold in his saddlebags. In the end, the two blocs joined in paying the fine and costs and secured Lyon’s release.120 It is of interest that Mason also helped pay the fines of other Republi- cans convicted under the Sedition Act, including Cooper, Callender, and Holt.121
The conviction and Lyon’s claims of maltreatment in prison made him a martyr. He was overwhelmingly reelected to Congress. However, when Lyon returned to Philadelphia, still the nation’s capital, for the new Session, he received a different reception. On taking his seat in the new Congress, he was confronted by a Federalist resolution to expel him as having been convicted of
“being a notorious and seditious person, and of a depraved mind, and wicked, and diabolical disposition.” Although a majority approved the resolution,49 to45, it failed, lacking approval of the necessary two-thirds of the members present.
The FederalistConnecticut Courantreported with satisfaction in May1799 the denial of Lyon’s application for payment for his “attendance” at the entire session of the Congress, although his actual attendance for most of the session had been prevented by his imprisonment in Vermont following his criminal libel conviction in October1798. In the same dispatch, theCourantreported that two other bills of indictment for sedition were awaiting Lyon in the event
120Spargo, note112, at52–53.
121J. M. Smith, note19, at243.
of his return to Vermont, but that he had announced his intention to settle in Kentucky.122
Lyon subsequently did move. In 1803he was elected once again to the House of Representatives, now from Kentucky, and reelected four more times.
On his return to the Congress, sitting in Washington, Lyon was received as a hero by the new Jeffersonian majority.123 Over the years, he and his heirs struggled unsuccessfully for vindication in the form of congressional approval of repayment of his fine. In1833the House Judicary Committee paved the way, condemning the Sedition Act as unconstitutional.124 At last, in 1840 (18years after his death), the Congress took action. The House Committee Report stated that the Sedition Act had been passed “under a mistaken exercise of undelegated power” and was “null and void.” It recommended repayment of the fine with interest in an effort to place beyond question the mandate of the Constitution on abridging the press. The House overwhelmingly approved by a vote of124to15, and the Senate followed suit.125
This is not the end of theLyonstory. The litigation gave rise to two more instances of the Federalist partisan use of the courts to imprison supporters of Lyon: Rev. John C. Ogden and the Vermont publisher Anthony Haswell.
After the election of Lyon, Rev. John C. Ogden (whom Miller describes as a “noted radical”) journeyed to Washington to present a petition from several thousand Vermonters asking Adams to pardon him. President Adams testily refused, saying “penitence must precede pardon.” Adams went further and warned Ogden that “your interference in this business will prevent you from receiving any favours from me.”126
Ogden then set out to return to Vermont. En route, he stopped in his old home town of Litchfield, Ct., a Federalist stronghold. While Ogden lingered in Litchfield, Secretary of the Treasury Wolcott charged that Ogden was delinquent in the payment of an old debt for $200. He was subsequently sentenced to four months imprisonment in December1798. This was only the first attempt to punish Lyon’s supporters. Anthony Haswell was the next target.
122Connecticut Courant, May20,1799.
123Wharton, note110, at343.
124H. R. Rep.218,22d Cong.,1st Sess. (Jan.30,1832).SeeDerek L. Mogck, Connecticut Federalists in President Jefferson’s (Republican) Court:United States v. Hudson and Goodwin,41Conn.
Hist.144(2002).
125Cong. Globe,26th Sess.,1st Sess.409(1840).SeeMichael K. Curtis,Free Speech: “The People’s Darling Privilege”84(2000); Wharton, note110, at344n.
126SeeMiller, note4, at111n.58; J. M. Smith, note19, at242; Rosenfeld, note25, at562.See also Gordon T. Bell,Sedition Act of 1798: A Brief History of Arrests, Indictments, Mistreatment Abuse 6(hereinafter Bell).
The Major Federalist Onslaught 107
2. United States v. Anthony Haswell, Editor of theVermont Gazette
Anthony Haswell was the editor of the BenningtonVermont Gazette, which he published for more than30years starting in1783.127 A deeply committed Republican and editor of the leading Republican paper in Vermont, he worked in close cooperation with other Republican editors, notably with the editor of the Philadelphia Aurora. His activities aroused deep indignation among the Federalists. As early as September8,1798, a month before the indictment and trial of Representative Lyon, Haswell reported in theGazette that he “has been and is threatened with prosecution under the sedition law, with tarring and feathering, pulling down his house, etc.” Similarly shortly after Lyon’s conviction and sentence, Haswell asserted in the October12,1798, issue of theGazettethat he expected to be arrested and prosecuted. However, nothing came of it.128After Matthew Lyon’s conviction and imprisonment in an unheated Rutland cell, Haswell denounced week by week the ill-treatment of Lyon by his jailor, who was seen as the “tool” of Nathaniel Chipman, the Federalist leader in Vermont.129
In the summer of1799, Haswell published a pamphlet containing the anti- Federalist Independence Day oration of Ezekial Bacon in Williamstown, Mass. The District Attorney attempted to use this publication to support an indictment, but the grand jury refused to indict.130 Then, in October 1799, Haswell’s newspaper, theVermont Gazette, published an appeal from a committee of Lyon’s supporters addressed “To the enemies of political perse- cution.” This denounced the imprisonment of Lyon by “the oppressive hand of usurped power in a loathsome prison . . . suffering all the indignities which can be heaped upon him by a hard-hearted savage [his jailor].” It then called on sympathizers to “ransom” him by supporting a lottery to raise $1,100for payment of Lyon’s fine and costs. At the same time, theGazettepublished an extract from the PhiladelphiaAuroraentitled “British Influence” attack- ing the Federalist administration for asserting that Tories, “men who fought against our independence, who had shared in the destruction of our homes, and the abuse of our wives and daughters were worthy of the confidence
127United States v. Haswell,26Fed. Cas.218,1800U.S. App. LEXIS67(C.C.D. Vt.1800) (No.
15,324).See generally Spargo, note112, at56–57; Wharton, note110, at684–687; J. M. Smith, note 19, at359–373; Rosenfeld, note25, at699,713,744,775,783–784,805.
128BenningtonVermont Gazette, Sept.8,1798; Oct.12,1798.SeeSpargo, note112, at56–57.
129SeeSpargo, note112, at52–53. The Spargo volume contains a photocopy of the proposed indict- ment, which the grand jury rejected. Plate xii, at58.
130Ibid., at63.
of the government,” presumably by their appointment to federal office.131 Haswell was arrested and indicted almost immediately for violation of the Sedition Act. According to a newspaper report in theAurora, another sup- porter of Congressman Lyon, Judah P. Spooner, editor ofSpooner’s Vermont Journal, was arrested as well.132 Although judicial confirmation is available on theHaswellcase, there is no judicial confirmation of theAurorareport of Spooner’s indictment.
As soon as Haswell’s indictment was handed down, a federal Marshal rode on horseback from Rutland to Bennington, Vt., to apprehend him. In his warm and appreciative biography of Haswell largely based on Haswell’s papers, John Spargo vividly describes what then transpired.
Early the next morning, the Marshal informed Haswell of the indictment and took him into custody. Although, as Spargo relates, Haswell was “unwell,”
the Marshal required him to accompany him to the jail in Rutland56miles away on horseback in weather that was “raining and chilly.” The two men started at10:00 a.m. and rode all through the “cold and wet” day and part of the night on “muddy” roads. Fifteen hours later, they at last arrived in Rutland at1:00 a.m., “nearly exhausted”; Haswell was then cast into a chilly cell. On arraignment, he pleaded not guilty and was bound over for trial at the next term of Court. He was required to post a $1,000bond to assure his appearance and “in the meantime to keep the peace & be of good behavior.”133
On April 28, 1800, Haswell came for trial before the same judges who had presided the year before in theLyoncase, Justice Paterson and District Judge Hitchcock.134Haswell was represented by Chief Justice Israel Smith of
131PhiladelphiaAurora, Oct.15,1799.SeeWharton, note110, at685; Spargo, note112, at61; J. M.
Smith, note19, at361.
132PhiladelphiaAurora, Oct.24,1799, Nov.6,1799, Oct.16,1800.SeeRosenfeld, note25, at699, 704,705,712,860.
133Spargo, note112, at54–58. Spargo’s account was prepared with the benefit of Haswell’s own papers and correspondence made available by Haswell descendants. This inevitably colors his description of these events.
134United States v. Anthony Haswell,26F. Cas.218,1800U.S. App. LEXIS67(C.C.D. Vt.1800) (No.15,324). It is of interest that Haswell shortly after his trial wrote to President Adams and among other things described the prosecution as having taken place under federal criminal common law.SeeLetter, Anthony Haswell to John Adams (June3,1800),9Papers of John Adams, no.
22(Mass. Hist. Soc’y). The prosecutor, however, asserted in court that the publications were criminal libels against the government of the United States, the judges of the Circuit Court, and the Vermont federal marshal.SeeJ. M. Smith, note19, at367. Because the Sedition Act did not protect federal judges and marshals, this creates some plausibility for the assertion. However, truth could serve as a justification under the Act whereas it had no role at common law. As is evident from Haswell’s presentation of his case and Justice Paterson’s conduct of the trial and charge to the jury, truth was an issue in the case, indicating that the case was, indeed, brought under the Act.