1. United States v. Samuel J. Cabell, Congressman from Virginia
With the increasingly stormy political scene, the Federalists turned to the federal common-law crime of criminal libel to deal with the Republican opposition. The first case,United States v. Samuel J. Cabell(1797), antedated the Sedition Act by almost a year. In contrast to the later Federalist pattern of targeting newspaper editors and printers, many of whom were recent English and Irish immigrants, the Cabell prosecution involved a Virginia Republican Congressman and Revolutionary War hero.5
2 David McCullough reports that more than300American vessels were seized by the French.See David McCullough,John Adams486(2001).
3 SeeMarshall Smelser, The Federalist Period as an Age of Passion,10Am. Q.391,412(winter1958).
4 SeeJohn C. Miller,Crisis in Freedom: The Alien and Sedition Acts23–26(1952) (hereinafter Miller).
5 Cabell left William & Mary College at age19to join the Revolutionary Army as early as1775. Appointed a Captain in1776, he saw service in the Battles of Trenton, Princeton, Saratoga, and the Siege of Charleston in1780, where as a Lt. Colonel he was taken prisoner by the British. He served in the Congress for eight years from1795to1803.
In reporting to his constituents in the spring of1797, Congressman Cabell, who represented Thomas Jefferson’s own district, circulated a highly critical commentary condemning the policies of Adams and the Federalists. The Fed- eralist District Attorney for the district, Thomas Nelson, brought the matter to the attention of the federal grand jury. The Circuit Court Justice presiding was James Iredell, one of the most outspoken of all the federal judges on the vital importance of criminal libel prosecutions for strengthening national stability and security. He charged the grand jury on May22,1797, giving sub- stantially the same charge as his charges to the Maryland and Pennsylvania grand juries several weeks earlier. Although he did not refer to Cabell directly or indirectly, he expressed his usual concern on the importance of crimi- nal libel prosecutions.6The grand jury without dissent promptly returned a presentment7 charging Cabell with criminal libel for the distribution of the circular letter “endeavoring, at a time of real public danger to disseminate unfounded calumnies against the happy Government of the United States.”8 In a letter to Bache’s PhiladelphiaAurora, Cabell attacked Justice Iredell for instigating the grand jury action. His accusation was challenged by a grand jury member who asserted that it was the independent work of the grand jury.9 Justice Iredell flatly denied any responsibility for the grand jury action. In his public statement, he said, “The truth is, that I never knew that Cabell had written any circular at all, until I heard the presentment read in court.” In a confidential letter to his wife, he went on to express his approval of the grand jury action.10
6 See3Documentary History of the Supreme Court of the United States, 1789–1800,173,181(Maeva Marcus ed.1990) (hereinafter Doc. Hist. Sup. Ct.);2Griffith J. McRee,Life and Correspondence of James Iredell483,497–501,505,511–513(1857repr.1949).
7 U.S. Const., Amend. V (1791) provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”
SeeS. Brenner & G. Lockhart,Federal Grand Jury: A Guide to Law and Practice§2.2. (1996) (“The language of the [constitutional] clause reflects its antecedents in common law practice, which allowed charges to be brought by either an indictment or a presentment. But the federal system no longer uses presentments as a charging instrument so all charges for ‘capital or otherwise infamous crime[s]’ must be brought by indictment”).
Adv. Comm. Note 4, Fed. R. Crim. Proc.7(a). (Presentments as a method of instituting prosecutions are obsolete, at least as concerns the federal courts.)
8 See3Doc. Hist. Sup Ct, note6, at173,181.
9 CompareLetter, Samuel J. Cabell to the PhiladelphiaAurora(May31,1797),3Doc. Hist. Sup Ct, note6, at183withLetter, Callohill Minis, a member of the grand jury, to Samuel J. Cabell (June 15,1797) (“who does not abhore you as a traitor?”). Minnis had been a Captain in the Virginia Line and had served throughout the Revolutionary War.
10 Letter, James Iredell to theVirginia Gazette & General Advertiser(June21,1797),3Doc. Hist. Sup Ct, note6, at197–199; Letter James Iredell to Hannah Iredell (May25,1797) (describing the grand jury as “composed of many of the most respectable men in the state” and to the presentment as of
“a temper highly suitable to our present situation”),id., at182.SeeMcRee, note6, at511.
Prosecutions Before Passage of the Act 75 The presentment gave rise to a storm of indignation among Virginia Repub- licans. Jefferson took the lead. As was his wont, he worked behind the scenes.
An “anonymous” petition drafted by him was sent to the Virginia House of Delegates. The draft termed the prosecution a violation of the privileges of Congressmen to communicate with constituents, an unconstitutional viola- tion of separation of powers, and a violation of the “natural right” of “free correspondence.” It is of particular interest that in his draft Jefferson nowhere challenged the existence of federal criminal common-law jurisdiction. Nor did he invoke the constitutional guaranties of freedom of speech and press.11 As we will see, this acquiescence in the doctrine of federal criminal common- law jurisdiction as late as the spring of1797soon disappeared. A few months later, he had identified the issue of one of supreme importance.12
Observing that the Virginia Constitution empowered the House of Dele- gates to impeach officers “offending against the State,” the petition contended that the grand jury’s crime was of “that high and extraordinary character” for which the Virginia Constitution provided the extraordinary procedure of impeachment.13 In a letter to James Monroe, Jefferson explained why the petition had been sent to the Virginia House of Delegates rather than to the Congress: “It is of immense consequence that the states retain as complete authority as possible over their own citizens.”14
With Jefferson’s name kept out of the discussion, the House of Delegates contented itself with adopting a resolution condemning the presentment, but going no further. What happened next is not known, but the outcome is clear.
The matter never went to trial. As for Cabell, he was reelected to the Congress in1800.
Although the proposed Sedition Act moved with speed through the con- gressional legislative process, it did not move fast enough for the High Feder- alists that were its sponsors.15 While the Congress was still discussing the
11 See9Writings of Thomas Jefferson447,452(H. Washington ed.1853); Letter, Thomas Jefferson to James Monroe (Sept.7,1797), James Monroe Papers (Libr. Cong.).
12 SeeLetter, Thomas Jefferson to Edmond Randolph (Aug.18,1799),10Writings of Thomas Jefferson 125(Andrew Lipscomb ed.1904) (hereinafter Jefferson,Writings(Lipscomb)).
13 Petition to the House of Delegates, Aug.1797,7Works of Thomas Jefferson158–164(P. L. Ford ed.
1904) (hereinafter Jefferson,Works(Ford)).SeeDavid N. Mayer,The Constitutional Thought of Thomas Jefferson199(1988).
14 SeeLetter, Thomas Jefferson to James Monroe (Sept.7,1797),9Jefferson,Writings(Lipscomb), note12, at424.
15 The High Federalists were the dominant wing of the Federalists, led by the so-called Essex Junto, a group of extreme anti-French partisans based in Massachusetts. It included such figures as Fisher Ames, George Cabot, Francis Dana, Stephen Higginson, Rufus King, John Lowell, Timothy Pickering, and David Strong.SeeCharles Warren,Jacobin and Junto, or Early American Politics as Seen in the Diary of Nathaniel Ames, 1758–1822,8,164 (1931) (hereinafter Warren,Junto).
proposed Act, Secretary of State Pickering saw to it that federal District Attorneys started the immediate prosecution of several Republican newspaper editors in reliance on federal criminal common-law jurisdiction.
At this early stage in the history of the New Republic, the Attorney Gen- eral was a part-time legal advisor to the President. It was the Secretary of State, not the Attorney General, who had administrative responsibility for the supervision of the federal attorneys in the various judicial districts (then called District Attorneys). Pickering, the Secretary of State, was a leader of the High Federalists and bristled at the outspoken opposition of Republican newspapers to the administration’s preparations for war with France including the Sedition Act. He not only urged the District Attorneys to read the local press for seditious statements, but he read the press himself for “seditious”
comments and called for prosecutions in a series of cases throughout his term in office.16
In this manner, three additional prosecutions for criminal libel resting, as in the Cabell case, on federal criminal common-law criminal jurisdiction were started in a matter of weeks against the editors and publishers of some of the most prominent Republican papers in the country. These included the indictment on June26,1798, of Benjamin Franklin Bache, publisher of the PhiladelphiaAurora, and on July6,1798, of John Burk, editor and printer of the New YorkTime Pieceand of Dr. James Smith, co-publisher of theTime Piece.
There may well have been a fourth. On July17,1798, three days after the adoption of Act, William Durrell, the Republican publisher of the obscure Mt. Pleasant, N.Y., Register was indicted and convicted for criminal libel for reprinting in June1798a trial report from another newspaper. However, it is not clear whether the indictment rested on the common law or on the newly adopted Act. Although the indictment was brought after the enactment of the Act, it was for an offense occurring before the Act. In view of the
Dana was a Massachusetts judge, and Lowell was the Massachusetts federal District Court judge.
Pickering is already known to the reader, and we will encounter the judges when we review criminal libel prosecutions later in the chapter.
16 Pickering letters calling for prosecutions include: Pickering to Richard Harison (June28,1798);
Pickering to Harison (July7,1798); Pickering to John Adams (Aug.1,1799),9John Adams, Writings7(Charles Francis Adams ed.1869) and Pickering to John Adams (Jan.19,1800).See8 Pickering Papers904;12:82;25:321–322;26:10;37:315;40:390,493,495. (Mass. Hist. Socy.); Frank M. Anderson, Enforcement of the Alien and Sedition Laws, Ann. Rep.1912, Am. Hist. Soc’y115, 119(1912) (hereinafter Anderson).
Pickering letters urging prosecutors to be on the alert: Pickering to Zebulon Hollingsworth (Aug.12,1799); Pickering to Thomas Nelson (Aug.14,1799); Pickering to Richard Harison (Aug.
12,1799); Pickering to William Rawle (Sept.20,1799).See11Pickering Papers590,599,602–604, 611–612;12id.82–83(Mass. Hist. Soc’y).
Prosecutions Before Passage of the Act 77 constitutional barrier againstex post factocrimes, prosecution under the Act would have faced a major, perhaps insuperable, obstacle. Accordingly, one may reasonably speculate that the case had been brought under the common law, but this is not clear.17
With the Sedition Act making its way through the Congress under Federal- ist control at this time, these four (or five, ifDurrellis included) proceedings at federal criminal common law eloquently demonstrate the confidence of the Federalists that the federal courts possessed criminal common-law juris- diction. Whatever the opinions of Republicans may have been, the Federalist Secretary of State, the Federalist District Attorneys, and, as we will see, virtu- ally all the Federalist judges apparently had no concern over its existence.18 However, the question of the existence of federal criminal common-law jurisprudence soon became hotly disputed on the political level and ulti- mately became a major constitutional issue. This question is deferred until the next chapter.
We now proceed to examine these three prosecutions in June 1798, 13 months after theCabellcase.
2. United States v. Benjamin Franklin Bache, Editor of the PhiladelphiaAurora
The grandson of Benjamin Franklin, Benjamin Franklin Bache, was the publisher and editor of the PhiladelphiaAurora. This was one of the leading, if not the foremost, Republican newspaper in the country. Written without restraint, Bache’s violent attacks on Washington, John Adams, and other Federalists made Bache and the Aurora a prominent target for Federalist hostility.19
Miller trenchantly describes the Federalists’ target: “Bache displayed a degree of virulence, vindictiveness, and scurrility that distinguished him even among the journalists of his generation.”20Bache’s abuse of Federalist leaders was fully matched by the vituperative nature of the attacks on Republicans
17 TheDurrellcase is discussed in detail later in the chapter.
18 Nevertheless, the Federalists in the Congress pressed for enactment of a federal statute crimi- nalizing criminal libel codifying the common law. Some concern over the availability of federal criminal common-law jurisdiction likely had some role in the pressure for the enactment.See 2Oliver Wendell Holmes Devise,History of the Supreme Court of the United States, George Lee Haskins & Herbert A. Johnson,Foundations of Power: John Marshall, 1801–1815,638(1981) (hereinafter Haskins & Johnson).
19 See James Morton Smith,Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties188–204(1956) (hereinafter J. M. Smith).
20 SeeMiller, note4, at27.
by the leading Federalist publishers in Philadelphia, such as John Fenno and later his son John Ward Fenno, and William Cobbett (“Peter Porcupine”).
This scurrilous group debased the press and made its so-called licentiousness21 a matter of general concern. As noted, virtually every political figure of the time bitterly complained of his treatment by the opposition press. In conse- quence, this gravely undermined the claims of free speech and press.
In the heated wartime atmosphere, the unrestrained criticism of the Adams administration in the publications of Republican editors was perceived by the High Federalists as conduct that bordered on treason and subject to criminal prosecution as criminal libel. Bache had consistently opposed war with France in the aftermath of the Jay Treaty issue and, after Adams was elected, began to attack him regularly. As the crisis with the French escalated, as we have seen, Bache came under increasing physical and editorial attack.22
On June16,1798, Bache printed a secret state paper that had been “leaked”
to him, apparently by two Republican Senators from Rhode Island: Tal- leyrand’s conciliatory letter to Elbridge Gerry, a Republican, who was part of the delegation of three American envoys in France. Ignoring the other two envoys – Federalists John Marshall and Charles C. Pinckney – Gerry forwarded the letter to President Adams. Adams received it two days before the Bache disclosure and had not yet shared it with the Congress. Once the letter was made public by Bache, Adams had little choice and thereupon formally forwarded it to the Congress.
In printing the letter, Bache alleged that Adams had withheld the letter from the Senate to thwart Talleyrand’s gesture for peace and cause an unnecessary war with France. In response, Federalist Senators assailed Bache as an agent of the French Directory in treasonable correspondence with Talleyrand.23 His indictment for criminal libel speedily followed. On June26,1798– the
21 “Licentiousness” was a term repeatedly used during this period to characterize the extreme prose of political opponents. Although criticized by perceptive observers as an utterly useless distinction, the constitutional guaranties were frequently declaimed to protect “liberty” but not “licentiousness.”
CompareChief Justic Parker in the celebratedBlandingcase. The Massachusetts Constitution of1780 follows the common law. It protects “The liberty of the press, not itslicentiousness.”
Commonwealth v. Blanding,20Mass. (3Pick.)304,1825Mass. LEXIS74(1825), and Justice Vann in People v. Most,171N.Y.423,431,64N.E.175(1902)withSt. George Tucker: “This word licentiousnessas applied to the PRESS, and towritings against the governmentis a word of the most indefinite signiofication [sic] of any in the English language.” Letter to a Member of Congress respecting the Alien and Sedition Laws35, June6,1799.
22 SeeJeffrey Pasley describes him as “France’s most vocal defender in the United States.”SeeJeffery L. Pasley, “The Tyranny of Printers” Newspaper Politics in the Early Republic97–98(2001) (hereinafter Pasley); J. M. Smith, note19, at193–194.
23 SeeJ. M. Smith, note19, at193.
Prosecutions Before Passage of the Act 79 day that the proposed Sedition Act was introduced in the Senate – Bache was indicted in the federal District Court in Philadelphia for common-law criminal libel of President Adams and the government.24
Bache was arrested and arraigned before District Judge Peters. Defense counsel, including the distinguished Republican advocate Alexander J. Dal- las, argued that the federal government lacked criminal common-law juris- diction. Judge Peters, however, refused to dismiss the indictment, noting that Bache could again challenge jurisdiction at the trial before the Circuit Court.
Pending trial at the October1798Term, Bache was released on posting bail of $4,000.25
Awaiting trial, Bache continued his outspoken assault on Adams and the Sedition Act. At the same time, Jefferson reaffirmed his high regard for Bache in a confidential letter to Madison. Speaking of Bache (and his Pennsylva- nia political ally Dr. Michael Leib), Jefferson described them as “men of abilities, and of principles the most friendly to liberty & our present form of government.”26
At this point, fate intervened in the form of the return of the yellow fever that had earlier decimated Philadelphia in1792and1793. In the summer of 1798, another yellow fever epidemic swept the city. Bache caught the fever and soon died. Yellow fever did not play politics, for Bache’s greatest rival, Federalist editor John Fenno died in the same epidemic.27
For several months, the Aurora, lacking Bache, ceased publication, but in November1798, Bache’s widow had William Duane, Bache’s assistant, take over as editor of the paper. As we will see, Duane had as foul a pen as Bache and matched him for the vigor and pungency of his language, first directed at the Federalists, but soon directed against fellow Republicans such as Chief Justice, and later Governor, Thomas McKean of Pennsylvania.
These episodes in Duane’s professional life are discussed later in this chapter and in Chapters6and7.
24 The indictment read: “libelling the President & the Executive Government, in a manner tending to excite sedition, and opposition to the laws, by sundry publications and republications.”See Pasley, note22, at98.
25 United States v. Bache (C.C.D. Pa.1798), PhiladelphiaAurora, June27,30,1798.SeeRichard N. Rosenfeld,American Aurora, A Democratic-Republican Returns174–176(1997) (hereinafter Rosenfeld); Pasley, note22, at98; J. M. Smith, note19, at282.
26 Letter, Thomas Jefferson to Samuel Harrison Smith (Aug.22 1798), Thomas Jefferson,Writings 1052(Libr. Am.1984) (hereinafter Jefferson,Writings(Libr. Am.)).
27 See1J. Thomas Scharf & Thompson Westcott,History of Philadelphia 1609–1884,495n. (1884) (hereafter Scharf & Westcott);7D. S. Freeman, note1, at544.
3. United States v. John Daly Burk, Editor of the New YorkTime Piece
The next common-law prosecution was directed at John Daly Burk (occa- sionally spelled Burke), the editor of the leading Republican newspaper in New York, the New YorkTime Piece, founded by the notable anti-Federalist Philip Morin Freneau. Like so many of the politically active editors of the day, Burk was a recent immigrant. He was an Irish radical who had fled to the United States to avoid prosecution for criminal libel. Becoming editor of the Time Piece on June 13, 1798, Burk carried forward Freneau’s more genteel criticisms28of the Federalists with even more vigorous attacks on the Federalists and their policies. His violent prose attracted an almost immediate response. In a matter of a few weeks, Secretary of State Pickering responded.
On July7,1798, he instructed the New York District Attorney, Richard Hari- son, to proceed against Burk for criminal libel. In addition, he ordered the District Attorney to move to deport Burk under the newly enacted Alien Act if, as it seemed likely, he proved to be an alien. Pickering was evidently determined to silence Burk one way or the other.29
Burk, along with his co-publisher, Dr. James Smith, were arrested and arraigned before District Judge John Sloss Hobart. They were released on bail of $4,000for their appearance and good behavior pending trial before Justice Paterson in the Circuit Court. Among the persons standing as sureties for Burk and Smith were such leading Republicans as Aaron Burr. Although Burk and Smith were bound over for good behavior, Burk renewed and intensified his attacks on Adams and the Federalists. At this point, Smith and Burk had a falling out when Burk proceeded with an even more violent attack on Adams over Smith’s objection. Smith thereupon withdrew from theTime Piece, and a few weeks later, theTime Piececeased publication.
Using Aaron Burr as a go-between, Burk then offered to settle the case.
He pledged to leave the United States if the case was dismissed and he and his sureties were released from the bond. Adams approved, and the case was discontinued.30Burk, however, did not honor his undertaking. Although
28 One may judge how vituperative Burk must have been in order for Freneau, whose comments Washington found maddening, to be viewed as more genteel.SeeLetter, George Washington to Henry Lee (July21,1793)840,842, Washington,Writings(Libr. Am.1997).
Abigail Adams describes Burk as “a Hireling wretch, in French pay I doubt not.” Letter, Abigail Adams to John Adams (Nov.27,1796),My Dearest Friend: Letters of Abigail Adams and John Adams414(Margaret A. Hogan and C. James Taylor eds.,2007) (hereinafterMy Dearest Friend).
29 Letter, Timothy Pickering to Richard Harison (July7,1798),37Pickering Papers315(Mass. Hist.
Soc’y).
30 Letter from Timothy Pickering to Richard Harison (Jan.1,1799),37Pickering Papers381(Mass.
Hist. Soc’y). Pickering advises that he finds “very desirable” Harison’s suggestion to keep a state prosecution pending, to be resumed in the event Burk violated the terms.See alsoLetter, Jacob