Legal Questions Before the Federal Courts
What was required for conviction under the Sedition Act?
Under the terms of the Sedition Act, conviction on charges of seditious libel required that the statements made by or published by the defendant were false, that the defendant intended to defame the government or incite opposition, and that the effect of the statements was malicious. Under earlier English and American practice, conviction for seditious libel required only evidence that the publication or utterance had a tendency to incite opposition to the government.
The act’s grounds for conviction reflected recent changes in American thought and practice. A defense based on the truth of an allegedly seditious statement had been offered in the famous trial of John Peter Zenger in 1735, and following the American Revolution this defense was recognized by some state constitutions and accepted by many commentators on the law, including John Adams. In the 1780s, state courts, which heard only occasional cases of seditious libel, placed greater emphasis on evidence of malicious intent.
In practice, the Sedition Act’s supposed liberalizations in the law of seditious libel provided little support for the defendants prosecuted under the act. Most judges followed traditional rules that made defense difficult or impossible, and the judges’ instructions to the juries weighed heavily in favor of conviction.
What was the jury’s role in trials under the Sedition Act?
The Sedition Act granted juries the “right to determine the law and the fact, under the direction of the court, as in other cases,” which meant that the jury could decide if the provisions of the Sedition Act applied to the case. Traditionally, juries in libel cases only determined the fact that the defendant was responsible for the publication, and the judge determined if the published statement constituted seditious libel. In the early years of American independence, many citizens came to expect that the jury would exercise a broader authority, and this expectation was affirmed in state law and practice. For example, the Pennsylvania Constitution of 1790 guaranteed juries in a libel case the right to consider the applicability of the law as well as the facts. In 1792, the British Parliament passed a libel law that gave the jury the right to consider the law, and this law was widely reported and discussed in the United States.
James Bayard, a congressman from Delaware, warned his colleagues in the House of Representatives that granting juries the right to consider whether the law applied to a specific libel case would enable juries to rule on the law’s constitutionality, but such a provision was nonetheless accepted in the final version of the Sedition Act. In the James Callender trial, the defense attorneys argued that the Sedition Act, as well as Virginia state practice, granted the jury authority to consider constitutionality. Justice Samuel Chase dismissed this claim and asserted that only the federal judiciary had authority to rule on the constitutionality of a law. During the prosecutions under the Sedition Act, judges often claimed that the act’s use of the phrase “under the direction of the court” gave them broad authority to instruct the jury on interpretation of the statute.
How did the federal courts select juries at the time of the Sedition Act trials?
The Judiciary Act of 1789 provided that juries in federal courts would be selected by lot or by other procedures “now practised” in the state in which the federal court met. It also directed federal courts to summon juries from geographical areas so as to encourage an impartial trial. The call for a jury was to be issued by the clerk of court and carried out by the marshal of the district. Marshals, as presidential appointees, were sometimes accused of partisanship, and several of the defendants in the Sedition Act trials, including Matthew Lyon and James Callender, alleged that the marshals had deliberately selected Federalist juries.
In 1800, in an effort to prevent partisan manipulation of jury selection, Senator Charles Pinckney of South Carolina proposed a bill that would have required all federal courts to select juries by lot from a list of all qualified jurors in a federal judicial district. The Senate postponed consideration of the bill, but the Congress did pass an act in 1800 specifying that federal courts that follow state practice in jury selection must do so according to the procedures used by the highest court of the state.
What sort of statements constituted an intent to defame the government or “to stir up sedition”?
Indictments under the Sedition Act most frequently related to perceived attacks on the reputation of the President or other federal officeholders rather than to alleged incitements to rebellion. The presiding judges frequently urged juries to convict any defendant whose language might damage public opinion of federal officeholders. Justice William Paterson instructed the jury in the Lyon trial to find the defendant guilty if the language quoted in the indictment was intended to make the President “odious or contemptible,” and Paterson strongly implied that the language met that test. Justice Samuel Chase told the jury in the Thomas Cooper trial that Cooper’s statements were “directly calculated to bring him [John Adams] into contempt with the people” and “to arouse the people against the President so as to influence their minds against him on the next election.”
Federalist defenders of the Sedition Act maintained that it punished “licentious” speech but did not restrict liberty of speech. The distinction between licentious speech and liberty of speech was a familiar part of British and colonial libel law through much of the eighteenth century. “Licentious” referred to any speech that was false and undermined support for governmental authority, but the legal application of the term was always imprecise and contested. The Sedition Act offered no more exact definition of seditious speech. During congressional debates, Federalists maintained that the Sedition Act would apply only to “malicious falsehoods,” but Republicans, like John Nicholas of Virginia, warned that the definition of “licentious” was so subjective that anyone in authority might use the law to suppress the opposition.
How could defendants establish the truth of a published statement?
In newspaper editorials and in courtrooms, Republicans argued that the truth defense provided by the Sedition Act was ineffective, since most of the statements cited in the indictments were opinions. As Albert Gallatin had asked during the House of Representatives’ debate on the proposed act, “How could the truth of opinions be proven by evidence?”
In most of the Sedition Act trials, the defendants attempted to acquit themselves by establishing the truth of their allegedly seditious statements. None was successful. Matthew Lyon’s interrogation of Justice William Paterson regarding the pomp displayed at President Adams’ house was largely rhetorical, but Lyon demonstrated the difficulty or even absurdity of proving the truth of an opinion. Thomas Cooper rooted his defense in an objective review of the government’s actions, but the repetition of his published statements brought further accusations of seditious libel. Callender’s attorneys never presented their witnesses because Chase rejected the attorneys’ proposed questions. In the Callender and Cooper trials, Chase demanded that any evidence speak to the entire libel, even if, as in the indictment of Callender, the charge cited twenty distinct statements. Chase’s ruling was based on long-established procedures governing libel cases in Great Britain, but it provoked enormous anger from the many Americans who had come to expect the truth of a statement to acquit a defendant in a seditious libel case.
Did the Sedition Act violate the First Amendment’s protection against any law “abridging the freedom of speech, or of the press”? What limits or restrictions could the Congress or the federal courts impose on the Constitution’s protection of free speech and a free press?
Several defendants argued that the Sedition Act was unconstitutional, but no judge allowed the jury to rule on this question. Neither did any court issue a decision regarding the constitutionality of the Sedition Act. The constitutionality of the act, however, was an important subject of public debate. Republicans, including Thomas Jefferson, insisted that it was unconstitutional, and several newspapers printed the Bill of Rights alongside drafts of the bill.
The congressional debates on the Sedition Act and the arguments presented during the Sedition Act trials revealed very different interpretations of the protections offered by the First Amendment. Most accepted the idea that certain limits on speech and the press were acceptable under the Constitution, but there was sharp disagreement on what the acceptable limits were and whether federal or state courts should enforce those limits. Federalists claimed that the First Amendment only codified the standard common-law protection from “prior restraint” (censorship before publication) and that the amendment did not prevent the government from prosecuting publications that were false or that deliberately incited opposition to the government.
James Madison, who drafted the Bill of Rights in 1789, denied that the First Amendment was just a restatement of common-law rules. The amendment, rather, was intended to protect the people from legislative acts that punished speech as well as executive actions that prevented publication. The Constitution, according to Madison, neither granted Congress authority to pass such an act nor justified it as necessary and proper. In the few instances when licentious speech required regulation, Madison asserted, it was under the jurisdiction of the states.
In 1964, in New York Times v. Sullivan, the Supreme Court referred to the broad consensus that the Sedition Act was “inconsistent with the First Amendment.”
What was the common law of seditious libel? Did the federal courts have jurisdiction over crimes defined by the common law?
For many years in Great Britain and in the American colonies, the crime of seditious libel was defined by the common law—the court rulings and traditional procedures based on a supposed ancient, natural law of England. In the last quarter of the eighteenth century, most Americans knew of the common law of seditious libel as it was described by Sir William Blackstone in his Commentaries, published between 1765 and 1769 and widely used in legal education in the United States. According to Blackstone, the common law defined seditious libel as any public statement tending to expose the government or government officials “to public hatred, contempt, and ridicule,” and freedom of the press under the common law was limited to the protection from any prior restraint on publication.
Opinions varied widely on whether this definition of the common law of seditious libel applied in either state or federal courts. Seditious libel trials were quite rare in state courts at this time, and when they occurred judges sometimes modified Blackstone to allow the truth of the statement to be offered as a defense, to require demonstration of malicious intent, or to grant the jury a role in determining if the law applied to the facts of the case. These modifications in the common law were familiar enough to convince the Federalist authors of the Sedition Act to incorporate the new provisions into the act in 1798.
Neither the Constitution nor any laws of the early Congress granted the federal courts jurisdiction over crimes defined by the common law. Several justices of the Supreme Court were willing to exercise that jurisdiction, but one, Justice Samuel Chase, questioned the federal courts’ authority to do so. Only a few seditious libel prosecutions in federal courts were brought under the common law, and none resulted in conviction. In 1812, the Supreme Court declared that the federal courts had no jurisdiction over any crimes defined solely by the common law.
What did the federal courts decide in related cases?
A grand jury presentment against Representative Samuel Cabell
In May 1797, a federal grand jury in Richmond, Virginia, accused Representative Samuel Cabell of inciting popular opposition to the federal government and encouraging foreign threats to American independence. The accusation came in a presentment, the form by which a jury recommends an indictment, and followed a grand jury charge from Justice James Iredell, who was presiding in the U.S. Circuit Court for the District of Virginia. Iredell never mentioned Cabell in his charge and later denied any role in the presentment, but the charge warned that certain individuals were provoking political divisions that would invite foreign interference and ultimately subjugation of the new nation. The grand jury referred to the “real evil” of letters that Cabell and other members of the House of Representatives circulated to their constituents. Only Cabell was cited by name, surely for a recent letter that condemned the talk of war with France and stated that the election of Adams would “sicken” the “patriotism of 76.”
No indictment of Cabell followed, but the presentment provoked a national outcry from Republicans. Newspaper articles and private correspondence about the presentment revealed Republicans’ deep distrust of the federal courts and their belief that federal judges used grand jury charges to advance the political goals of the Federalists. Cabell publicly described the jury as “a band of political preachers.” Jefferson petitioned the Virginia House of Delegates with recommendations for official action against the members of the grand jury. The grand jury was led by retired Supreme Court Justice James Blair and it included prominent Federalists whom Justice Iredell considered the “most respectable Men in the State.” For Republicans, the attack of these influential individuals on a member of the House of Representatives was proof that the Federalists were determined to use the courts to silence political opposition. Senator Henry Tazewell of Virginia concluded that “Thus have a Court and Jury erected themselves into a tribunal of political Censors.”
Common-law indictments for seditious libel
Just before the Congress passed the Sedition Act in July 1798, two controversial Republican printers were indicted in federal courts on charges of seditious libel. Both were indicted under the authority of the common law, even though Justice Samuel Chase had suggested that the federal courts had no jurisdiction over common-law crimes. The prosecution of these harsh critics of the Adams administration indicated the sense of urgency among Federalists. Neither printer was brought to trial, and subsequent prosecutions for seditious libel were brought under the authority of the congressional statute.
Benjamin Franklin Bache
In late June 1798, as the Senate began consideration of a sedition bill, Benjamin Franklin Bache was arrested and indicted in the U.S. Circuit Court for the District of Pennsylvania. Bache, grandson of Benjamin Franklin, was the editor of the nation’s leading Republican newspaper, the Aurora. His publication of an intercepted letter from the French foreign minister brought charges that Bache was acting as an agent of the French government. Bache was able to defend himself before the federal government formally charged him with treason, but his defense included published statements highly critical of President John Adams and Secretary of State Timothy Pickering. The indictment cited these statements as “tending to excite sedition, and opposition to the laws.” With a trial scheduled for the October term of the circuit court, Bache was released on bail and continued to publish in the Aurora his criticisms of the administration. Bache remained at work in Philadelphia during the yellow fever epidemic that claimed his life that September. Although Bache’s case never went to trial, his successor at the Aurora, William Duane, was indicted under the Sedition Act.
John Daly Burk
In early July 1798, John Daly Burk was indicted for suggesting that President Adams had falsified the text of a published letter describing the government’s negotiations with France. Three weeks earlier, Burk had become editor of the New York newspaper, the Time Piece, and announced that he planned daily editions as well as a national weekly to carry his staunchly Republican editorials. Secretary of State Pickering debated whether to deport the Irish-born Burk under one of the alien acts or to seek an indictment for seditious libel. The federal attorney in New York, meanwhile, secured a warrant for Burk’s arrest, and the printer was indicted in the U.S. Circuit Court for the District of New York on charges of “seditious and libellous” statements about the President. His business partner, James Smith, was also indicted for a personal libel of Pickering. Leading New York Republicans, including Aaron Burr, posted bail for both of them. Although Burk continued to criticize the government through the Time Piece, he and Smith quarreled and dissolved their partnership in August. With the newspaper out of business, Burk offered to leave the country in return for an end to the prosecution. The Adams administration agreed, and Burk ostensibly left for Louisiana. In fact he moved to Virginia, where he lived under an assumed name until the election of Jefferson.
United States v. Hudson & Goodwin
In 1812, the Supreme Court decided that the federal courts did not have any jurisdiction over crimes defined by the common law, as opposed to those defined by the Constitution or by acts of Congress. During the first decade of the federal government, federal judges expressed varying notions about criminal common law jurisdiction. In United States v. Worrall, a circuit court case of 1798, Justice Samuel Chase ruled that the federal courts did not have criminal common-law jurisdiction, but the question did not go to the Supreme Court. The Sedition Act had been passed in part to accommodate the doubts raised by Justice Chase.
The already infrequent number of common-law criminal prosecutions in the federal courts declined after 1798, although in 1806 Pierpont Edwards, a judge appointed to the U.S. District Court of Connecticut by President Jefferson, encouraged a grand jury to bring an indictment under the common law for seditious libel against two Federalist printers. Barzillai Hudson and George Goodwin, publishers of the Connecticut Courant, republished a report that President Jefferson and the Congress had secretly bribed Napoleon. When Judge Edwards and Circuit Justice Brockholst Livingston differed on the circuit court’s jurisdiction over a common-law crime, the judges, following a procedure set out in statute, certified the case for consideration by the Supreme Court. Justice William Johnson, in the Supreme Court’s unanimous opinion, declared that the federal courts had no criminal common-law jurisdiction and that the justices considered the question “as having been long since settled in public opinion.”
The Sedition Act Trials — Historical Background and Documents