The First U.S. ‘War on Terror’: The 1798 Sedition Act & Constitutional Politics
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The First U.S. ‘War on Terror’: The 1798 Sedition Act & Constitutional Politics

September 18, 2019


– This program is presented by University of California Television. Like what you learn? Visit our website or follow us on Facebook and Twitter to keep up with
the latest UCTV programs. (gentle music) – Today I have a special pleasure of introducing Charles McCurdy. I’ll say three or four things about him. First we’re at the University
of California Berkeley and we’re very happy to
say that our speaker today is a graduate of the University
of California at San Diego. And he went on and did his doctorate at the University of
California at San Diego. And then not being the purist
that I thought he might be he didn’t stay for postdoctoral
work there he went to Yale, for Yale Law School where he
was in a very famous program that was run by Stanton
Wheeler at the Yale Law School on Law Society studies. And then he went on to
the University of Virginia where he has been teaching
for close to 40 years. And he has a remarkable
wonderful reputation for undergraduate, PhD and law teaching. And he’s a professor of law and of history at that institution and he
is renowned in the profession of legal history and
Constitutional History. Not only for his own wonderful work but for the way he has trained
so well so many students. Possibly more than any other individual directing PhD programs in America. I think that’s actually, that’s an accurate statement. If not he’s certainly
way up there in numbers and certainly very far up
there in the distinction of those who work with him. The last thing I should
speak of is his scholarship. He has a remarkable record. His early work was on Stephen J. Field, the conservative California justice who went on to Washington to become for a long period of decades. A key member of a court
that was moving more and more toward a conservative and regulatory pro-business position. And for historically Field had been seen as a knee-jerk conservative who just gave business
community what it wanted. But Charles McCurdy’s work
changed that picture radically and gave a much more complete picture of what judicial conservatism was like in the late 19th century in the large. And it was a much more
complicated phenomenon. And nobody in the field
has been able to write the way people were writing
back in 60s about that court or about judicial
conservatism and it’s largely if not to say exclusively is
the result of his early work. And then he moved from
that into larger studies. Studies on a larger
canvas of property law, anti-trust, the police power and Taxation. And in general one can
say as he’s described in the publicity that
came for this lecture. He’s been interested in the
relationship of ideology, economic change and political movements and has given us a very rich picture of the dynamics of change
in the legal system as a working system as well
as in what we call the law. The narrower sense jurisprudence
and theory and courts. And he among his many publications, he has continued to publish
over the years on Stephan Field. He did a another
path-breaking work on Field’s jurisprudence on the California Court, which really made us all
think very differently about property law. Because he found and described brilliantly how the court was
allocating property rights. And playing a role in setting priorities among mining, agriculture,
commerce and other sectors. So again it’s a terrific
legacy in the study of American legal and constitutional
history that he’s left. And he did more than anyone
I think to open up the field in very new rich way of
California law historically. He then turned east and did a study of the anti-rent movement in New York, which was a similar kind of study in terms of looking at
a very radical ideology that concerned property rights. And the inheritance in an
area of upstate New York of essentially medieval tax claims on servitude claims on the land. And there was a very dramatic uprising and he wrote a really big book, a very big book on all the aspects of this in the way I’ve just discussed, sorry. In the way I’ve just discussed
and it was richly rewarded. Because every three years a prize called the Order of the Coif prize
is given for the best book in law over a three-year period. And he and another
historian shared that prize. When you think about
the outpouring of books and the frenzy over originalism and all the rest that’s
going on in recent years this was a wonderful achievement. And everyone in the field of legal and constitutional
history is indebted to him for having conquered all the prejudices of a conservative bar in recognizing the importance of this
kind of scholarship. So welcome back to the
University of California especially to Berkeley, Charles, where you taught first semester to the benefit of our students. He actually took my courses
they didn’t want me back, students wanted just have him stay. And it’s just good to have you back and we look forward to your lecture which is on America’s first war on terror. Jeffersonian period appropriately enough and concerning constitutional debate of the Alien and Sedition Acts. Charles McCurdy. (applause) – Oh come along everybody. – Well thank you very much
for that warm introduction. He didn’t say what’s
probably the most important connection between us. He directed my PhD dissertation at the University of
California San Diego in 1966. And has been a shameless a
promoter of my career ever since. (audience laughs) And I am forever grateful to him for that and for also whatever part he played. I know others, I know Waldo Martin were on the on the committee. And this place has always
been regarded by me, a native California and
I grew up in Pasadena, as the Mecca of academic life. The Mecca of learning and scholarship in the whole country. And to come back under
these auspices today is, well it’s very exciting. During the first decade of governance under the Constitution
of the United States, the young Republic confronted
a foreign policy crisis that fractured the body
politic and produced an age of political violence in America as well as in Europe. The reign of terror in
revolutionary France sparked the crisis. And the ensuing wars of
the French Revolution, which lasted from 1793 to
1815, sustained the crisis. President George Washington
issued a neutrality proclamation in April of 1793. But the American people were not neutral. Federalists just despised
the godless bedlam in Paris and prayed for fervently
for a British victory over French anarchy. As feelings heightened Republicans were just as attached to the
cause of revolutionary France. And his feelings heightened
the partisan language of politically active Americans grew increasingly strident and extreme. One theme common to everyone’s talk was the fragility of
Republic’s in a hostile world. And so Republicans described
the Federalists in power not only as Anglophiles
but also as monarchists or monocrats, who intended to subvert the Republicans state of
Liberty and not only in America but everywhere in the world. Fantastic motives were ascribed to every federalist
initiative in the Congress and in Atlantic diplomacy. Federalists responded in kind. They not only denounced
the Jacobin members of the Republican opposition but also insisted often and vehemently that political opposition
when concerted and organized was equivalent to subversion. And this was especially true if it were orchestrated
by a foreign power. And as the nation inched
toward what we now call the quasi-war with France in 1798. Congress translated into law the Federalists’ claim
that Republican opposition had put the very Republic in peril. And so they passed the Sedition Act, which is the heart of my lecture today. The Sedition Act made it a federal crime and I quote, “To write,
publish, utter or print “any false scandalous
and malicious writing “against the United
States or the President “of the United States or
either house of the Congress “of the United States, with the intent “to excite against them the hatred “of the good people of the United States “or to stir up sedition among them.” Now the Sedition Act has
the dubious distinction of being the only statute
enacted by Congress in the 18th century to be
declared unconstitutional by the Supreme Court of the United States in the 20th century. In a case called New
York Times and Sullivan decided in 1964 Justice William
Brennan performed the deed. And there established what he called the central meaning of
the First Amendment. The central meaning of the First Amendment he said as he (garbled audio) old statute unconstitutional he said,
that central meeting was that debate on public issues should be uninhibited,
robust and wide open. And it may well be what will be included are vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Now at first glance at
least Brennan’s description of the central meaning of
the First Amendment in 1965, sounds very much like John
Adams defense of free government in his dissertation on
the cannon and feudal law published in 1765. Behind Parliament’s claim
to tax the inhabitants of the British colonies Adams wrote during the Stamp Act crisis of 1765, lay the divine miraculous
origin of government with which the priesthood had
enveloped the feudal monarch in clouds and mysteries. The thing said Adams had
always been different in Massachusetts. Its government was founded on knowledge generally diffused through
the whole body of the people. Let every sluice of knowledge
be opened and flowing, said Adams in 1765. Let us dare to think and
speak and think and write. I said think twice, one of them was read. Let us dare to read and
think and speak and write. The irony of course is that in 1798, President John Adams signed
a Sedition Act into law. And there’s more. Neither Adams nor the house
and the Senate majorities who voted for it or the
Supreme Court justices who sustained it against
constitutional attack 13 different times between 1798 and 1801 doubted the competence of Congress to make seditious libel a federal crime. In their view the Sedition
Act was fully warranted by the Constitution of the United States. Now describing how Adams
and the Federalists reached this conclusion is my
first task in this lecture. Three components of
the Federalist argument require attention. First the Federalists had an argument about the scope of the First Amendment’s guarantee of a free press. Second the Federals had an argument about the inherent powers
of the national government. And third the Federalists had an argument about the coextensive relationship between the federal legislative power and the federal judicial power. Now as I reconstruct this Federalist view I hope that you will be impressed
by its logical coherence even if you aren’t persuaded
by the arguments themselves. My second task is to account
for the nature and scope of the Republican critique
of the Sedition Act. Culminating in the famous Virginia and Kentucky resolutions of 1798. And two years later in
Thomas Jefferson’s victory over Adams in the election of 1800. A victory that Jefferson
never ceased to call the revolution of 1800. It follows that my third
task is to describe the ramifications of
that revolution of 1800 for American constitutional politics. And specifically for the
freedom of the press, for the Federalist
doctrine of inherent powers and for the Federalist idea of coextensive legislative and judicial power. In other words I don’t need to explain whether the election of 1800 generated a constitutional revolution as well as a political revolution. And if it did just how
extensive or how limited are these constitutional
changes turned out to be. Now along this route it’s my intention to establish some larger claims about constitutional thought,
constitutional practice and constitutional change in
the United States history. But you’ll have to be patient. Historians have a penchant
for telling stories that move from the
particular to the general. Rather than the general and the particular and history has been my principle discipline for as long as I can remember. So the Federalist argument
on freedom of the press. For Adams and his friends the Sedition Act did not abridge as the First
Amendment says it must not, freedom of the press at all. Because at common law
the freedom of the press had been understood
for more than a century as the right to publish
without prior censorship by government officials. Prior restraint of
publication was forbidden. But freedom of the press
did not entail immunity from subsequent prosecution. For licentiousness,
seditious or subversive words that excited the people and inclined them to subvert the authority or rule of duly constituted public officials. In other words the Federalists subscribed to what we now call the
Leonard levy thesis. Named for the great civil libertarian and historian of American
law who recovered and reconstructed the Federalist argument about freedom of the
press in the early 1960s. May be pointed out that there was little or no evidence suggesting that the framers of the Constitution free press clause intended to supersede the common law. And he insisted that there
were substantial evidence that they did not intend to do so. In Pennsylvania and
Massachusetts for example, there have been successful prosecutions for seditious libel in the state courts as late as 1791 despite the
guarantee of a free press in the Constitution’s of
Massachusetts and Pennsylvania. Everywhere in revolutionary America Levy maintained noisiest
defenders of a free press asked only that the principles advocated in the famous trial of John Peter Zenger in early 18th century New York be fulfilled and followed. That is those principles
were truth as a good defense in all actions of seditious libel. And the jury’s right not
just its latent power to make determinations
of law as well as fact in all trials for seditious libel. And during the 1790s
there’d been some movement in that direction. The legislature of Pennsylvania incorporated the Zenger principles into its statute law in 1790. Kentucky and Delaware
followed suit in 1792. Thomas Jefferson, we finally got him in. Thomas Jefferson had embraced
a qualified Zanger position in the draft of the Virginia Constitution which he proposed in 1783. Here’s what Jefferson wrote
this is his free press clause. “Printing presses shall be
subject to no other restraint “than libelness to legal
prosecution for falsehoods “printed and published.” Now 15 years later Adams
and the Federalists went further than Jefferson
had dared to go in 1783. The Sedition Act of
1798 expressly provided that truth would be a permissible defense in a prosecution under the statute. And it provided that the
jury would have control over both law and fact in all trials under this Sedition Act. The Sedition Act said
Leonard Levy paraphrasing Gilbert and Sullivan was quote, “The true embodiment of
everything excellent.” It was that is, it was the very epitome of libertarian thought in 1798. Now claiming that the
Sedition Act did not violate the First Amendment as the Federalists did was not to establish that
it was constitutional. Adams and his friends
had to show that Congress was competent to enact it
even though article one of the Constitution did
not and does not enumerate a power to regulate the press. Whether to protect national security or for any other purpose. But the Federalists were good lawyers and there were two
interlocking arguments at hand for them to bootstrap into a claim that Congress could enact as the statute. The first had been
pioneered by James Wilson. A great Federalist who ends up being in the federal judiciary in the 1790s. James Wilson of Pennsylvania. Now in 1781 he pioneered
it all the way back into the Articles of Confederation. In 1781 shortly before
Congress voted to charter the Bank of North America
Wilson rose to contest the claim that Congress had no
power to pass such a law because no Clause of the
Articles Confederation authorized Congress to
create corporations. And besides the Articles
Confederation stipulate that quote each state
retains its sovereignty, freedom and independence and every power, jurisdiction and right which
is not by the Confederation expressly delegated to the United States in Congress assembled. So Wilson faced what seemed
to be a double whammy. There was no enumerated power for Congress to create a bank and the Constitution or Articles of
Confederation had a coupling like the Tenth Amendment
only it said expressly. Well Wilson had no problem claiming that the bank was constitutional. The article just quoted from
the Articles Confederation. He swept aside as entirely
irrelevant to the question. Because in as much as no
state could exercise any power or act of sovereignty extending
over all the other states or any of them, it followed that the power to incorporate a bank
commensurate to the United States was not an act of sovereignty or a power. Which by the second article must expressly be delegated to Congress by that body. In other words since none of the states could create a National Bank, the reserve powers of the
states weren’t affected by the fact that the Congress
might be able to charter one. “To many purposes,” he said, “The United States are to be considered “as one undivided nation and is possessed “of all the rights and power “and properties by the law
of nations incident to such.” It followed he said and again I’m quoting, “That whenever an object
occurs to the direction “of which no particular state is competent “the management of it
must necessarily belong “to the United States
in Congress assembled.” Now applying Wilson’s reasoning to the Sedition question was a cinch. And one Federalist Statesman
after another did so on the floor of Congress
and in the pamphlet war that followed the introduction and passage of the Sedition Act of 1798. That’s because the law of
nations is the law of nature applied to political states. And the first law of nature is the right of self-preservation. And self-preservation it was said, require this suppression of sedition which undermined the people’s
confidence in their government by vilifying public servants
or condemning their acts. Finally no particular
state had jurisdiction over sedition against the United States or against United States officials. So just as murder on the
high seas was of necessity, a question for United States
law and United States courts, so was sedition against the United States. In each instance, Congress
exercised powers or properties that were incident to national
States by the law of nations. And in each instance Federalists
argued national action did not encroach on any right, sovereignty or power reserved to the states. Now these are the essential elements of the inherent powers doctrine. Now the Federalists
offered one more argument to reinforce the doctrine
of inherent powers. This was drawn from Federalist number 80, the Federalist Papers from
Publius’s 80th number, written by Alexander Hamilton in 1788. “If there are such things
as political axioms,” Hamilton wrote, “The propriety
of the judicial power “of a government being
coextensive with its legislative “may be ranked among the number.” So what’s this coextensive power concept? It means that if Congress had jurisdiction to establish an offense,
the federal courts must have jurisdiction to try the offense and to enforce the penalty. By the same token if the
federal courts had jurisdiction to hold a trial and to enforce a penalty, then Congress must have
jurisdiction to abrogate the offense or to modify it and to fix
a new and different penalty. “Judicial power and legislative power “want the maxim or axioms,” said Hamilton “had to be coextensive.” Now section 11 of the
Judiciary Act of 1789, which created the rules and procedures and structures of the federal judiciary. Section 11 a clause the federal courts with jurisdiction over all
offenses that were quote, cognizable, by the
United States of America. Cognizable. So what sorts of offenses
had been cognizable that is subject to federal jurisdiction when Congress passed the
Sedition Act in 1798. One class of federal crimes included acts that had been prohibited
by federal statutes. These included bribery of United
States customs collectors. Counterfeiting United States bonds and murder on the high seas. But a second equally
important class of cognizable federal offenses included all
kinds of common law crimes that Congress had not forbidden
but were not cognizable in the courts of any particular state. So in the United States
Circuit Court for Pennsylvania, a guy named Gideon Henfield was indicted at common law for joining a
French privateering expedition in violation of President Washington’s neutrality proclamation. A diplomatic official from
Genoa was tried and convicted at common law for sending
threatening letters to the British Minister
with a view to extortion. And the Philadelphia businessman
was tried and convicted at common law for attempting to bribe the United States commissioner of revenue into awarding him a contract
for the construction of a lighthouse on Delaware Bay. Nor was that all. Three different United
States circuit courts handed down indictments at
common law for seditious libel before the Sedition Act became law. Samuel J. Cavil, which
is the building I teach in the University of Virginia
is named for him, Cavil Hall. Samuel J. Cavil who was
Jefferson’s congressman, a congressman from Charlottesville. He was indicted by the
feds in Richmond, 1797. Benjamin Beech editor of a
newspaper called the Aurora was indicted by the feds
in Philadelphia in 1797. And John Daly Burke, editor of a journal called the Timepiece was indicted by the feds in New York City. The reasoning of these indictments
was since federal courts had jurisdiction of such
offenses at common law, and Congress’s power were coextensive with the federal judiciaries, congress certainly had the
power to enact a statute that defined the crime
with greater precision and enlarged the rights
available to defendants at common law. And this is precisely
what the Sedition Act of 1798 achieved. Section one defined the offense. Section two made truth a good defense and authorized the jury to
consider questions of law as well as questions of fact when deliberating on their verdict. Now I’ve said that the
inherent powers argument and the coextensive powers argument had an interlocking quality. And this is because the power claimed for Congress by Wilson,
and for the federal courts in the common law crime
cases had the same foundation and the same built-in
limitation on federal power. The foundation was the idea
that pre-existing bodies of law, the law of nations
in the one instance the Wilson argument. And the common law in the other. The common law crimes argument, legitimated action by
government authorities. And the built-in limitation
was that the idea that Congress and/or the federal courts could legitimately claim
jurisdiction to act, if and only if the subject
matter at issue was beyond the purview of the
several states or any one of the several states. Federalists seem to have taken for granted the resulting constraints on
the constructive amplification of national power arising
from the doctrines of inherent powers and the
doctrine of coextensive powers. One thing however is certain
and that is that Jefferson and the Republicans either did not grasp the Federalist position or
they deliberately distorted it in the rancorous
constitutional controversy that generated the revolution of 1800. Now the campaign against the Sedition Act began at the moment
the bill was introduced in the House of Representatives. The alarm was sounded of
course by Thomas Jefferson, vice president of the United States as well as the Republican
Party’s acknowledged leader. “If this goes down,” he wrote,
sounds very 21st century. “If this goes down we shall
immediately see attempted “another act of Congress
declaring that the president “shall continue in office for life. “Reserving to another
occasion the transfer “of the succession to his
heir and the establishment “of the Senate for life.” Was Jefferson serious? Could monarchy be established
under our Constitution by the amplification of
Congress’s granted powers and the nature of federal jurisdiction. Well Jefferson apparently thought so. I think he exaggerated a bit though. If in 1798 anything seemed possible with a mode of constitutional construction grounded on the law of nations
and the English common law. Both of which presuppose the legitimacy of both monarchy and aristocracy. Now James Madison was
ordinarily less impulsive than his Virginian partner in politics and more inclined to use
circumspect language. Still the fourth Virginia
resolution of 1798 relied on the same slippery slope and the same destination
posited by Jefferson. Here’s what Madison
said, he said, he wrote, “That the General Assembly
expressed deep regret “that indications have
appeared of a design “to destroy the meaning and effect “of the particular
enumeration and to consolidate “the states by degrees
into one sovereignty. “The obvious tendency and
inevitable result of which “would be to transform the
present Republican system “of the United States into an absolute “or at best a mixed monarchy.” That’s James Madison. Jefferson and Madison had
been down this road before. In 1791 they stood arm and
arm against consolidation during the bank debate and they’d lost. But this time the chances of
victory seem much greater. They were up against John Adams instead of George Washington. What is more Federalist
arguments about inherent powers and coextensive powers
seem much more vulnerable than Alexander Hamilton’s
artful deployment of the Necessary and Proper
Clause in the bank controversy. Consequently the Republicans assailed from the very outset first
the notion that Congress could exercise anything so
fuzzy as inherent powers. They assailed the idea
that the Constitution authorized federal courts to adjudicate criminal cases at common law. And they insisted that
Federalist claims to the contrary put the very federal structure
of the Union into jeopardy. The outstanding republican
performance in this vein was Madison’s in his famous 1800 report to the Virginia legislature. Article one of the Constitution
which enumerated powers of Congress he wrote, “Was
logically incompatible “with the notion that
the common law was part “of federal law. “Because the authority of Congress “was necessarily coextensive
with the federal judiciary.” So he accepted the premise
of coextensive powers, “To hold that federal courts
had cognizance of matters “as vast and multifarious
as those in the common law “would invariably overspread
the entire field of legislation “and sap the foundation
of the Constitution “as a system of limited
and specified powers.” Madison saw the common law
as a lever for Congress to enact statutes on
all matters whatsoever. Now the principle of states
rights cut a much larger figure in the Republican appeal of 1798 to 1800, abandoned the first amendment. Still the Sedition Act
brought the relationship between free government and a free press into sharper focus than ever before. A focus that produced
what Leonard levy called a new libertarianism. Now the major premise of
the new libertarianism was that the common law of seditious libel was incompatible with the
republican form of government. Pamphlets by George Hay and Tunis Wortman a couple of fellows from New York City, pointed out the common law had developed in a nation where the legitimacy
of public authority flowed from a compact between
the ruler and the ruled. Between the sovereign and the people. In England the crime of seditious libel protected the authority,
dignity and exalted position of the sovereign. But such an offense made
no sense, they argued, in the United States because
here sovereignty resided in the people themselves
and public officials were rightfully regarded
as the mere servants of their Republican masters. Madison grasped this claim
and turned it brilliantly to Republican advantage
in the Virginia report in the spring of 1800. “The people, not the
government,” he wrote, “Possess the absolute
sovereignty in America. “And it followed that
rights here are secured by “not by laws paramount to
prerogative but by constitutions “paramount to laws.” It followed that the
American idea of a free press was very different from that
postulated in the common law. “The crabbit doctrine of no
prior restraint,” said Madison “Can never be admitted
in a republic since a law “inflicting penalties
on printed publications “would have a similar effect
with the law authorizing “a previous restraint on them. “It would seem a mockery to say
that no law should be passed “preventing publications from being made “but that laws might be
passed for punishing them “in case they should be made.” Thus were born two observations
that figured prominently in the First Amendment
jurisprudence of William Brennan and the case of New York Times
in Sullivan in particular. The idea that libel law has a tendency to follow self-censorship and
the resulting chilling effect on the Free Press on free
expression is incompatible with the Republican form of government. Now the Sedition Act
contained a sunset clause, which means that this
lecture will eventually get to a sunset. It expired by the acts own
term on March the 3rd, 1801. 24 hours late Thomas
Jefferson was inaugurated as the third President
of the United States. Jefferson dared say nothing
about the sedition question in his inaugural address, choosing instead to hold out an olive
branch to the Federalists with the famous quote,
“We are all Republicans, “We are all Federalists.” But soon afterward Jefferson pardoned all those who had been
convicted under the Sedition Act and quietly dismissed the
prosecution still pending against journalist, Republican
journalist James Duane. “I discharged every
person under punishment “or prosecution under the Sedition Act.” Jefferson wrote to
French shortly afterward, “Because I considered
and now consider that law “to be a nullity. “As absolute and palpable a nullity “as if Congress had
ordered us all to fall down “and worship a golden image. “And that it was as much my
duty to arrest its execution “as it would have been to
rescue from the fiery furnace “those that should have been cast into it “for refusing to worship the image.” End of quote. Yet for all this the revolution of 1800 did not necessarily mean the
end of trials for sedition. Except for the new libertarians who were a distinct minority in the party. Republicans had condemned the Sedition Act primarily on states rights grounds. And Jefferson himself in an
1804 letter to Abigail Adams flatly stated and I quote,
“while we deny that Congress “have a right to control
the freedom of the press, “we have ever asserted
the right of the states “and their exclusive right to do so.” So was it possible that
the revolution of 1800 would mean nothing more
than Republican prosecution of Federalists as a matter
of state law in state courts? And what about the possibility
of prosecuting Federalists for seditious libel at common
law in the federal courts? The Sedition Act had expired
but federal jurisdiction over common law crimes
cognizable by the United States. Though much contested
during the campaign of 1800, remained a live issue in our
law of the federal courts and the federal system. Now answers to the
questions came in due course though often with a
surprising cast of characters, a surprising plot or a
surprising they knew them all. Consider first the resolution
of the free press question in the state courts. Ironically the leading case
pitted Federalists libertarians against Jeffersonian Stan patters on the common law of seditious libel. When Jefferson became president, his most powerful ally in New York was Governor George Clinton. And in 1803 Clinton’s
administration obtained a common law indictment
against Harry Croswell, editor of an upstate
newspaper called The Wasp. Croswell’s crime was an
accusation that Thomas Jefferson while serving as vice president
had paid another journalist named James Callender to
denounce George Washington as a traitor and a robber and a perjurer. And John Adams as a
hoary headed incendiary. In point of fact the
accusation for which Croswell had been indicted was true. James Callender was on
Thomas Jefferson’s payroll in 1798 and 1799 when Callendar wrote those things in his newspaper. Nevertheless the New York Trial Court refused to allow the defendant
to subpoena witnesses who could have established
the truth of the words. And Chief Justice Morgan Lewis
who presided at the trial and was the leading a
Republican who was end up succeeding George Clinton
as governor of New York. He instructed the jury
that at common law truth was not a good defense in an
action of seditious libel. Such that in New York at
least freedom of the press was still defined as the
absence of prior restraint. And the jury after hearing that charge convicted Mr. Croswell. Now on appeal to the New
York’s highest court, Croswell was represented
by Alexander Hamilton. In vain did that the great
Federals leader urge the court to grant Croswell a new trial
in the defense of truth. So that the people might know whether President
Jefferson had been guilty of what Hamilton called
the foul act of libeling President George Washington. Hamilton maintained that freedom of the press rightly
understood common law. Quote, “Consists in the right
to publish with impunity, “with good motives and
for justifiable ends “though badly reflecting
on government, the Magestry “or particular individuals. Without proof of the
defendants actual malice, not his presumed malice at Hamilton. The journalist’s statements
merited protection from the state constitutions
guarantee of a free press. Well it turns out that
Hamilton lost the battle but won the war. The two Republican judges
rejected his argument. James Kent, a prominent Federalists and Smith Thompson a former Federalist, a former student of Kent’s
voted for a new trial. So the conviction was sustained
by an equally divided court. But in 1805 the New York
legislature settled the matter by enacting a statute
providing that every state in the Union soon emulated
in one way or another. This statute, the New York act of 1805, shifted the burden of proof
and actions of seditious libel. So that it became the state’s obligation not only to prove that
the material was false, but also to prove that
it had not been published for good reasons and justifiable ends. And by this tortuous path
the new libertarianism produced by the Sedition Act
of 1798 finally got translated into effective protection of press freedom as a matter of state law. In fact the resulting legal regime lasted until the civil rights era
generated new challenges and a new doctrinal response to preserve what Brennan called the central meeting of the First Amendment. What then about federal prosecutions for sedition at common law? The Supreme Court considered this question in the remarkable case of
United States versus Hudson and Goodwin decided in 1811. At issue was the indictment of two Hartford Connecticut newspaper men, who had published an
article accusing Congress of secretly appropriating
2 million dollars at the request of President Jefferson as a bribe of Napoleon. Upon a division of the trial judges over whether United States
Circuit Court had jurisdiction the case was certified
to the Supreme Court. And President Madison
Jefferson’s successor declined to defend the
indictment with either a government brief or a government defense of the prosecution in oral argument. And so the result was predictable
Justice William Johnson, a Jefferson appointee
dismissed the indictment and held that federal courts
did not have jurisdiction over crimes at common law now. The decision in this
case Hudson and Goodwin was extraordinary all the same. It was remarkable first because of the way Justice Johnson justified the result. “Although this question is brought up now “for the first time to
be decided by this court, he said, “We consider it as
having been long since settled “in public opinion.” I don’t think the court
said that in a long time. That this question had been
decided in public opinion. It had been settled in other
words by the political upheaval that Jefferson called
the revolution of 1800. But that’s not the only reason Hudson and Goodman was remarkable. It was remarkable for
still another reason. In their campaign against the Sedition Act Republicans had denounced the concept of a federal common law
because it provided a lever when fused with Hamilton’s
coextensive powers doctrine for the constructive amplification of the powers of Congress. They made an argument in
other words about federalism. The new libertarians on the other hand had denounced the concept
of a federal common law because it provided a means for government to do what it had no business of doing. Of deploying the criminal law to subvert freedom of the press and
hence the sovereignty of the people, the first
principle of republicanism. They made an argument
about individual rights. But in Hudson and Goodwin Justice Johnson did not breathe a word about rights or a word about federalism. The courts holding
hinged on public opinion in the first instance and ultimately on the separation of powers. “The legislative authority of the Union “must first make an act of crime. “A fix of punishment to it and declare “that the court shall have
jurisdiction of the offense,” said Justice Johnson for the court before it could become
cognizable in federal courts. Now the problem with this sweeping holding was that there were a great many offenses over which no state
court had jurisdiction. That now could not be
punished in the federal courts unless Congress had acted. And Congress had other
more important things to do than specifying with precision the scope of the federal criminal law. Could somebody get away with
arson, bribery, extorsion or grand theft committed on the high seas? Or at federal installations
such as navy yards, post offices, light houses
and the United States Mint? The impossibility of such a
thing had been at the foundation of the Federalist argument
concerning the federal common law of crimes and for the closely related argument pioneered by James Wilson for the inherent powers of Congress. And it came home to
roost in the great case of United States and Coolidge. An issue in the Coolidge case was an event that occurred during the War of 1812. American privateers
holding a letter of marque authorizing them to seize enemy shipping. Holding a letter of marque
from President Madison seized a British vessel
in the North Atlantic and started for an American port where the vessel could
be liable as a prize. They didn’t make it home with their prize. Because the second American vessel captained by the defendant Coolidge seized the British ship in open water and beat the American privateers to port. And so in 1813 the United States Attorney for Massachusetts indicted Coolidge at common law for grand
theft ship on the high seas. He had to be indicted in federal court because no state had
jurisdiction over a crime that occurred on the high seas. And so justice Joseph
story, a Madison appointee believed that in this instance
the Federalist argument about inherent federal
jurisdiction was sound. And so he voted to sustain the indictment. But his colleague, another
Republican appointee, District Judge John Davis did not agree and nor did the Supreme
Court which heard Coolidge on the resulting certificate
of division in 1817. Justice Johnson again spoke for the court and he stuck to his guns. “Offenses at common law did not exist “in the courts of the United
States,” he flatly stated and as a result Coolidge walked. His unmerited Liberty
was also a consequence of the revolution of 1800. What then about the Federalist
doctrine of inherent powers? The claim that certain powers that had not been enumerated
in the Constitution, but which could not possibly be exercised by the several states or any of them. In which the law of nations established as incident to all
national states necessarily belong to the Congress
of the United States. What happened to that
Federalist principle? Well the answer of course
is that the Republicans invoked that very principle
in support of their power to acquire Louisiana in 1803. Robert Livingston of
New York who negotiated the Treaty of Session with France denounced the doctrine of
inherent powers in 1798. But broadcasted widely in
support of his treaty in 1803. A great many other Republicans,
leading Republicans, made the exact same conceptual somersault between the one event and the other. Jefferson’s views were more complicated. At the very outset of
the Louisiana treaty, he presumed that a
constitutional amendment could and should be adopted
that expressly authorized the purchase of territory
from another national state. “Let us not make blank
paper by construction,” he wrote, one republican associate. “Let us our peculiar
security is in the possession “of a written constitution.” But as year 1803 wore on
Jefferson changed his tune. And in a fascinating letter
to Wilson Carey Nicholas, the junior member of the
Senate from Virginia, Jefferson confessed now
while he thought it important to set an example against
broad construction by appealing for new power from the people he was prepared to accept the treaty without a constitutional amendment. “The good sense of the country,” he said, “Will correct the evil of construction “when it shall produce evil effects. “But this evil construction was producing “wonderful, wonderful effects.” This was the first time
in American history when a professed strict constructionist allowed reasons of state to trump his own constitutional first principles. And it would not be the last. Now Republicans always
regarded the acquisition of new territory, whether by purchase or annexation as an exception
to the salutary principle of strict construction generally in opposition to the federalist doctrine of inherent powers in particular. In their judgment the robust form of inherent powers
doctrine had been exploded by the revolution of 1800. But in the aftermath of the Civil War an entire generation of
jurists shared the impulse to extirpate from American
constitutional law, every corollary of Antebellum
southern rights theory. Much of which was
traceable to the Virginia and Kentucky resolutions of 1798. They were also inclined
to confirm the national government’s authority
to exercise every power whether enumerated or
not, that was necessary to maintain its very existence. And the result was a revival
of inherent powers doctrine. The revival climaxed in the
Supreme Court’s 1889 decision upholding the Chinese Exclusion Act. Where Justice Stephen Field
speaking for unanimous court explained that it didn’t
matter that the Constitution did not enumerate a power of Congress to control the nation’s borders or to enumerated a power
to determine what person should be denied entry
to the United States and what persons should be admitted. “These powers,” said Field, “Are inherent in the national government.” In support of the court’s
ruling Field invoked every single reason that
James Wilson had invoked in the bank debate of 1781. And the Federalists that invoked in the Sedition Act debate of 1798. Field might have added, though he didn’t, that in America constitutional revolutions sometimes do go backward. Time has come for me to conclude. The stories I have told about
the Sedition Act of 1798 and the ramifications of Jefferson’s victory in the election of 1800, established at least
two general propositions about constitutional politics and constitutional change
in American history. First constitutional change rarely begins in the Supreme Court. Political movements often grounded in distinctive constellations
of constitutional thought, shape what public officials
do and why they do it. Even public opinion
that most elusive thing, modifies what the Constitution
means from time to time. This is because
constitutional law is in part a function of constitutional practice. Which in turn reflects and reproduces the conventions of constitutional thought established by dominant
political coalition’s. Second, the process of constitutional change seldom conforms
to the ideal typology. Lawyers and political
scientists tend to use in analyzing American constitutional law. No offense Bob. It is often said that
the basic building blocks of constitutionalism in
America are protection of individual rights,
the division of authority between the national government and the several state governments, and the separation of
legislative, executive, and judicial functions, and so they are. But when constitutional
claims are contested across the board as they were in the Sedition Act controversy, every domain of constitutional law is eventually implicated. It may take two or three decades or more for courts and commentators
to work out every implication of the constitutional upheaval at hand. And in some instances the
process of consolidating the results of one upheaval
may not have been completed before the next upheaval begins. All this is to say that
American constitutional law has always been relatively
contingent on circumstances. So much so that doctrines
presumed to be exploded at one point in time have
made unexpected comebacks at other points in time. Woodrow Wilson, another statesman from my adopted state
of Virginia once made a similar observation with a phrase that still seems exactly right. “The Constitution of
the United States is not “a mere lawyers document,” he said. “It is a vehicle of life and its spirit “is always the spirit of the age.” Thanks for your patience. (applause) – Well thank you very much
that’s a wonderful talk. And I’m happy to say
that Professor Mccurdy is gonna to take some questions. Thank you. – So do you request for
you to say a little more. I’m interested in what
happens to the relationship between the federal courts and common law as the nation grows. And I’m also wondering if you could say a little more about this, what seems like a rediscovery
of the Republican tradition for Brennan and other
judges during the 1960’s. – The first question is what
happened to the relationship between the common law and the federal government’s
power to prosecute crime. In the aftermath of the
Sedition Act controversy which in turn generate that
crazy case of Coolidge, where the grand theft
ship guy walked, right? You remember that the
Supreme Court justice on circuit in that case
was Joseph’s Story. And Joseph Story spent
the next eight years in a long correspondence with the senior United States senator of Massachusetts, his good buddy Daniel Webster. They made a kind of parlor
game, it lasted eight years, of trying to conjure up crimes which should be cognizable
by the federal courts. But Congress had not yet
defined them as a crime. And the result is the first
codified federal statute of crimes, known as
the Crimes Act of 1825. It’s only nine pages long. So a federal crime bill in our time, you need a hand truck to move it around. But it was, it consisted of every crime that they could imagine that had not been yet specified by Congress. And that took away the opportunity for guys like Coolidge to
get away with grand theft on the high seas with impunity. Now there are other relationships between the common law on the civil side and the law of the United States, that’s a really long story. Professor Schreiber said
that I once shared a prize which I did with a very
good friend who teaches the New York law school. And he’s written three
books on this issue. The question of Swift and Tyson. And the question of Erie and the– Erie Railroad and was? Tompkins yes. Tompkins in the Erie Railroad and it’s an incredibly long complex. And in the end (audience laughs) not very exciting story. The second question is what accounts for Brennan’s rediscovery
of the Jeffersonian new libertarian tradition of 1800 as late as 1965 in New York
Times in Sullivan case. And the answer is that at
issue in New York Times and Sullivan was a editorial published in the New York Times by Harry Belafonte and a great number of
other African-American intellectuals and activists. That made a lot of denunciations of what the Alabama police
had been doing in Birmingham. And there was a lot of
stuff that was wrong. Like they said the police
had encircled Alabama state. Well God there was just a few
people I could see their gate. And maybe somebody over on Hurst. They hadn’t completely encircled it. So there were these errors of fact. And that meant that they could
not rely on a truth defense. And moreover the jury would have control and these were 12 white guys listened to a lawsuit filed by this guy Sullivan who was on the Board of
Supervisors of Birmingham. Now this was a slam dunk
that they were gonna bring in a verdict of
liability and indeed, I think New York Times
says total liability at the time of that lawsuit for that ad in various
state court decisions was many millions of dollars. So they needed to say that, somebody need to make
a constitutional claim that a private libel could
have such public consequences. That it should be barred
by the First Amendment of the Constitution of the United States. And they hired a guy named Herbert Wexler who made that argument. And the way he did it was he said, “The practical effects of
this lawsuit in Alabama “are just like the practical effects “of the Sedition Act
prosecutions the 1798.” And what he did was
link this Sedition crime from the 18th century to the 20th century reality of the 1960s. And Brennan went for it. Hook line and sinker and I think probably had more fun writing that opinion than he had writing any
other opinion he wrote during his long and distinguished career on the Supreme Court. – Thank you very much Professor McCurdy. Thank you all for being here
and enjoy the reception. Thank you Charles. (applause) (gentle music)

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