Repressive jurisprudence in the early American republic : the First Amendment and the legacy of English law / Phillip I. Blumberg.
2010
KF9397 .B58 2010 (Map It)
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Title
Repressive jurisprudence in the early American republic : the First Amendment and the legacy of English law / Phillip I. Blumberg.
Published
Cambridge ; New York, NY : Cambridge University Press, 2010.
Call Number
KF9397 .B58 2010
ISBN
9780521191357 (hbk.)
0521191351 (hbk.)
9780511789908 (e-book)
0511789904 (e-book)
0521191351 (hbk.)
9780511789908 (e-book)
0511789904 (e-book)
Description
xiv, 410 pages ; 24 cm
System Control No.
(OCoLC)496964519
Summary
"This volume seeks to explain how American society, which had been capable of noble aspirations such as those in the Declaration of Independence and the Constitution, was capable of adopting one of the most widely deplored statutes of our history, the Sedition Act of 1798. It examines how the political ideals of the American Revolution were undermined by the adoption of repressive doctrines of the English monarchial system - the criminalization of criticism against the king, the Parliament, the judiciary, and Christianity. Freedom of speech was dramatically confined, and this law remained unchallenged until well into the twentieth century. This book will be of keen interest to all concerned with the Early Republic, freedom of speech, and evolution of American constitutional jurisprudence. Because it addresses the much-criticized Sedition Act of 1798, one of the most dramatic illustrations of this repressive jurisprudence, the book will also be of interest to Americans concerned about preserving free speech in wartime"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Murray Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Murray Fund
Table of Contents
Acknowledgments
xiii
1.
Political and Jurisprudential Worlds in Conflict in the New Republic
1
2.
Politics in the New Republic
23
A.
Introduction
23
B.
The Threat of "Factions," the Rise of Political Parties, and Lack of a Concept of a "Loyal" Opposition
23
C.
Corruption of the Press: Financial Support from Political Leaders and Foreign Powers
27
1.
The Politicized Press of the New Republic
29
2.
Support of the Partisan Press by Political Patronage
32
a.
Government Printing Contracts
32
b.
The Flow of Foreign Money
35
D.
Partisan Virulent Speech and the Demonization of Opponents
36
E.
Partisan Violence in the New Republic: An Inheritance from the Struggles with the British Crown
40
F.
Three Insurrections Threatening the Stability of the New Nation
42
1.
Shays's Rebellion (1787)
42
2.
The Whiskey Tax Rebellion (1794)
44
3.
The Fries Insurrection (1799)
49
G.
Conclusion
50
3.
Criminal Libel in the Colonies, the States, and the Early Republic During the Washington Administration
52
A.
Introduction
52
B.
English Seditious Libel and Criminal Libel Law: The Law of the American Colonies
54
1.
Eighteenth-Century English Law
54
2.
The Colonial Experience
55
C.
Criminal Libel in the States After the Revolution: The English Inheritance and the Role of Blackstone
57
1.
The Reception Statutes
57
2.
The Role of Blackstone
59
3.
The Isolated Cases Before the Adams Administration
66
4.
Federalist Partisan Use of Criminal and Seditious Libel - Statutory and Common Law - During the Tumultuous Adams Administration
72
A.
Collapse of Relations with the French, the Adams Administration Preparing for the Imminent Outbreak of War, and the Bitter Political Climate in the Spring of 1798
72
B.
Portent of Future Events: Federalist Partisan Prosecutions of Republicans Under Federal Criminal Common Law Even Before Passage of the Act
73
1.
United States v. Samuel J. Cabell, Congressman from Virginia
73
2.
United States v. Benjamin Franklin Bache, Editor of the Philadelphia Aurora
77
3.
United States v. John Daly Burk, Editor of the New York Time Piece
80
4.
United States v. Dr. James Smith, Co-Publisher of the New York Time Piece
81
C.
The Enactment of the Sedition Act, July 14, 1798
82
1.
Introduction of the Bill
82
2.
The Action of the Congress
84
3.
The Approval of President Adams
90
D.
The Federalists Divided over the Act: The Reaction of Such Federalists as George Washington, Alexander Hamilton, Oliver Ellsworth, John Marshall
92
1.
George Washington
93
2.
Alexander Hamilton
94
3.
Chief Justice Oliver Ellsworth
95
4.
John Marshall
95
E.
The First Cases Under the Act: Protecting National Security by Prosecuting Three Disorderly Drunks for Vulgar Remarks About President Adams
99
F.
The Major Federalist Onslaught: Nine Cases Against Editors and Publishers of Jeffersonian Newspapers
101
1.
United States v. Matthew Lyon, Congressman from Vermont and Editor of the Vermont Journal
102
2.
United States v. Anthony Haswell, Editor of the Vermont Gazette
107
3.
United States v. Thomas Adams; Commonwealth v. Thomas Adams (Mass); Commonwealth v. Abijah Adams (Mass.), Editor and Bookkeeper, Respectively, of the Boston Independent Chronicle
110
4.
United States v. Charles Holt, Editor of the New London Bee
112
5.
United States v. Ann Greenleaf; People v. David Frothingham (N.Y.), Editor and Employee, Respectively, of the New York Argus
114
6.
United States v. William Duane, Editor of the Philadelphia Aurora
116
7.
United States v. Thomas Cooper, Editor of the Sunsbury and Northumberland Gazette
122
8.
United States v. James Thomson Callender, Polemicist
125
9.
United States v. William Durrell, Editor of the Mt. Pleasant Register
131
G.
Three Cases Involving Republican Activists
134
1.
United States v. David Brown; United States v. Benjamin Fairbanks, the Dedham, Mass., Liberty Pole Activists
134
2.
United States v. Jedidiah Peck, New York Legislator
137
3.
United States v. Dr. Samuel Shaw
138
H.
Unconfirmed Cases
139
1.
United States or New Jersey v. Daniel Dodge; United States or New Jersey v. Aaron Pennington
139
2.
United States v. Judah P. Spooner; United States v. James Lyon
140
3.
United States v. Conrad Fahnestock; United States v. Benjamin Moyer or Mayer
142
4.
United States or Commonwealth v. James Bell
143
5.
Dr. John Tyler; Dr. John Vaughan
143
I.
Judicial Consideration of the Constitutionality of the Sedition Act
144
J.
Conclusion
145
5.
Criminal Libel During the Jefferson and Madison Administrations, 1800-1816
148
A.
Introduction
148
B.
Ambivalence of the Jeffersonians: The Federal Government
149
1.
The Accession of Jefferson to the Presidency, 1801
149
2.
The Demise of Criminal Libel and Federal Criminal Common Law in the Jefferson and Madison Administrations
150
3.
Supping with the Devil: Republican Partisan Use of Criminal Libel Against Federalist Critics in the Connecticut Federal Courts Under Federal Criminal Common Law
156
4.
The Constitutional Issue: Did the Federal Courts Have Criminal Common-Law Jurisdiction?
166
a.
The Experience in the First 25 Years of the Early American Republic
166
b.
The Constitutional Issue Resolved: Hudson & Goodwin (1812)
181
c.
Jefferson and Criminal Libel
184
6.
Partisan Prosecutions for Criminal Libel in the State Courts: Federalists Against Republicans, Republicans Against Federalists, and Republicans Against Dissident Republicans in Struggles for Party Control
187
A.
Introduction
187
B.
Republican Use of Repressive Doctrines Against Federalists and Dissident Republicans Alike
188
1.
Pennsylvania
188
a.
Republicans Against Federalists
188
b.
Republicans Against Republicans
194
2.
New York
203
a.
The Federalist Interlude
203
b.
The Republican Era
204
3.
Other Jurisdictions
214
C.
Federalist Use of Repressive Doctrines Against Republicans
215
1.
Connecticut
215
2.
Massachusetts
222
3.
New Jersey
233
D.
Liberalization of Massachusetts Criminal Libel Law
234
1.
The Role of Truth
234
2.
The Scope of the Jury's Role
236
3.
The Requirement of Proof of "Intent"
237
4.
Reform in the States
238
E.
Conclusion
241
7.
Established Jurisprudential Doctrines (Other than Criminal Libel) Available in the New Republic for Suppression of Anti-Establishment Speech
243
A.
Introduction
243
B.
Criminal Contempt of Court for Out-of-Court Speech
244
1.
Contempt in the Early Republic During the Late 18th Century and Early 19th Century
248
a.
The Early Pennsylvania Experience
248
b.
The Early New York Experience
254
c.
Other Early Developments
255
2.
Federal Statutory and Constitutional Limitations of the Judicial Contempt Power
257
a.
The "Duane" Prelude (1800) and the Congressional Contempt Power
257
b.
The Act of March 2, 1831
262
c.
The Century-Long Struggle in the Federal Courts over the Meaning of the Act of 1831
264
3.
The Judicial Contempt Power in the States
272
a.
Statutory and Other Issues
272
b.
State Constitutional Limitations
275
c.
Separation of Powers
275
d.
Free Speech and Press
277
e.
Trial by Jury
279
f.
Due Process
279
g.
State Law in Conflict: Was Contempt Available After the Case Had Come to an End?
280
4.
Federal Constitutional Limits of the Contempt Power of State Judges
284
C.
Criminal Contempt of the Legislature
289
1.
The English and Colonial Inheritance
289
2.
The Federal Experience
293
a.
The First Quarter Century of the Early Republic
294
b.
The Evolution of the Doctrine in the Federal Courts
296
3.
The State Experience
301
D.
Binding Over of Defendants to Assure Good Pretrial Behavior
303
E.
Breach of the Peace
312
F.
Conclusion
317
8.
Still Other 19th-Century Doctrines for Suppression of Anti-Establishment Speech: The Law of Blasphemy and the Slave State Anti-Abolition Statutes
318
A.
Introduction
318
B.
Criminalization of Blasphemy Under State Common and Statutory Law
319
1.
Introduction
319
2.
The English Criminal Common Law of Blasphemy
320
3.
Blasphemy Law in the Colonies and the New Republic
321
4.
The Blasphemy Statutes
326
5.
The Blasphemy Litigation
328
6.
The Contrasting Experience with the "Blue Laws"
335
7.
Conclusion
336
C.
Suppression of Anti-Slavery Speech
337
1.
Introduction
337
2.
The Experience in the Slave States
338
a.
Anti-Abolition Statutes
338
b.
The Slave State Decisions
341
c.
State Utilization of Federal Postmasters to Impound Anti-Slavery Newspapers
349
d.
Slave State Statutes Jailing Free Black Seamen on Ships Entering State Ports: An Ugly Episode from America's Unhappy Past
349
e.
State Common-Law Prosecutions to Stifle Abolitionist Activists: Criminal Libel and Public Order
356
f.
Limits on Slave State Juridiction to Respond Fully to the Circulation of Abolitionist Pamphlets and Newspapers
362
g.
Northern State Common-Law Prosecution of Abolitionist Agitation
365
3.
The Federal Experience
368
a.
Anti-Slavery Petitions in the Congress
368
b.
Jacksonian Approval of State Interception of Anti-Slavery Newspapers in the U.S. Mails
368
4.
Ineffectiveness of Constitutional Guaranties of Freedom of Press to Invalidate the Southern Statutes Suppressing Anti-Slavery Publications
371
D.
Conclusion
374
9.
Conclusion
374
A.
Introduction
374
B.
Let Us Call the Roll
381
Table of Cases
383
Index
389