The Sedition Act & the trial of Thomas Cooper

Tuesday, March 15, 2011

The American commitment to freedom of speech and press is the more remarkable because it emerged from legal and political origins that were highly repressive.
— Anthony Lewis

The story of seditious libel in America begins with Benjamin Bache. So, who was he? If you were to consult his contemporaries, it would depend on whom you asked.

On the one hand, according to Federalist Congressman John Aller of Connecticut, Benny Bache was “the great engine of all … treasonable combinations.” What Bache printed in his paper, the Aurora, was tantamount to “a conspiracy against the Constitution, the Government, [and] the peace and safety of this country,” Aller charged. Abigail Adams agreed; she urged that Bache be “prosecuted” for his “libels upon the President and Congress.” His “wicked and base” abuses, she declared in letters penned between March and May 1798, ought to be “[p]resented [to] grand jurors.”

On the other hand, in 1811 Thomas Jefferson wrote to his friend William Wirt about the importance of Bache’s Aurora and its anti-Federalist perspectives: “It was our comfort in the gloomiest days.” Jefferson deemed this kind of “watchful sentinel” as vital to constitutional government in America.

The late Margaret Blanchard summed it up this way: Bache “showed, very early in the history of the United States, how far freedom of the press could be extended and how fragile that freedom could be.” In attempting to exercise that freedom, he won the condemnation of some and the praise of others. Bache’s life in print is thus exemplary of just how great a price a free people must pay to be free.

Bache’s story was prelude to the struggle for free expression in America. It is not surprising, therefore, that a new book on freedom of the press dedicated its prologue to him: “The Pursuit of Benjamin Bache” is how the chapter is titled. But this book is not about Bache, if only because he died too young, so young that the Federalists were unable to prosecute him before he passed on Sept. 5, 1798.

This just-released book is much about another great figure in our history — Thomas Cooper (1759-1839), at one time or another a lawyer, educator, philosopher, judge, and a fellow anti-Federalist. It is titled The Free Press Crisis of 1800: Thomas Cooper’s Trial for Seditious Libel (University Press of Kansas, 2011). With informed and disciplined brevity, the author, Peter Charles Hoffer (professor of history, University of Georgia), masterfully narrates this incredible story and the events leading up to, surrounding and following it.

The path to press freedom
Before there was freedom of the press, government critics — save those who shielded their identities through pseudonyms (e.g., “Cato” and “Common Sense”) — had virtually no protection from being charged with a felony. In Sir William Blackstone’s words, it was a crime to publish anything that had a “direct tendency to breed in the people a dislike of their governors.” Thereafter, the right to a jury trial was pretty much all that separated a publisher from prison, and even on that score the right was often limited to the question of whether the defendant published the seditious words. But that was hardly enough when political opinion was the focal point of prosecution. In short, as Peter Hoffer accurately states it, “Freedom of the press as we understand it today was not a part of the constitutional legacy that England bequeathed to its American colonies.” (Even John Milton’s 1644 call for no prior restraints was not honored.)

Hoffer’s remarkable 149-page book charts our country’s journey to freedom of the press, examining how we got from the British common law to the 1735 trial of John Peter Zenger to the Constitution of 1787 — and from there to the First Amendment — to the Sedition Act of 1798 and prosecutions under it, notably that of Thomas Cooper, and thereafter on to modernity. This volume is the 54th book in the Landmark Law Cases and American Society series, of which Hoffer is the co-editor along with N.E.H. Hull. The Free Press Crisis of 1800 is among the shortest in the series, which includes books twice its size (such as Hull and Hoffer’s volume on Roe v. Wade).

A new book for new times
For years, students of history interested in press freedom turned to Leonard W. Levy’s Legacy of Suppression: Freedom of Speech and Press in Early American History (1960, 353 pp.). Later, there was Levy’s major revision in Emergence of a Free Press (1985, 383 pp.). More recently, there is Geoffrey Stone’s impressive Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004, 730 pp.). There are, to be sure, other works and they are listed in the valuable bibliographical essay in Hoffer’s book. Still, word-for-word and page-for-page, The Free Press Crisis of 1800 has no equal.

In six chapters (accompanied by a prologue, conclusion, chronology and bibliography), Hoffer recounts bundles of history with scholarly skill, summarily citing some 100 “major primary and secondary sources” dating from 1777 to 2011. And he does all this with nuanced conciseness as he parades the notables of the history of American press freedom onto the stage of his very readable narrative — including the likes of Benjamin Bache, Andrew Hamilton, Matthew Lyon, Albert Gallatin, Thomas Cooper, Thomas Jefferson, and James Madison. It is quite an achievement, one that makes the book particularly attractive for use in college classes and law-school courses.

The story of Thomas Cooper, whose trial on April 12-19, 1800, is the topical focus of The Free Press Crisis of 1800, takes up about a third of the work. The rest is mostly historical prelude (the common law of England, the drafting of the Constitution of 1787, the debates over the First Amendment, early sedition prosecutions, and the fight over passage of the Sedition Act of 1798), followed at the end with a discussion of the legacy of the Sedition Act (the Sedition Act of 1918 and the free-expression cases following it, from Abrams v. United States to New York Times v. Sullivan).

In Hoffer’s pre-Cooper trial discussion, what is especially engaging and enlightening for students and lawyers alike is the author’s informed discussion of the debates over the Sedition Act of 1798, in particular the mind-opening exchanges between Federalist Congressman Harrison Gray Otis from New York and his Republican opponent, Congressman Albert Gallatin from Pennsylvania. In those exchanges one reads some of the very best rough-and-tumble arguments concerning the history of the Constitution and the First Amendment, how the two documents might be interpreted, and how such views relate to the larger question of democratic government.

The context
One of the feats of this volume is its ability to be compact without sacrificing attention to the overall historical context. By the time readers come to prosecutions under the Sedition Act and the newspaper wars over it, they have a fairly good sense of what the fight was over:

  • The wildly different views toward England (to which the Federalists were sympathetic) and France (to which the Republicans were sympathetic).
  • The feared war with France and the raising of federal taxes to support it.
  • The Jay Treaty (1795).
  • The ceaseless battles between the newly-created electoral parties.
  • The divisive election of 1796.
  • The enactment of federal excise taxes.
  • The passage of alien laws designed to punish foreign-born subjects sympathetic to Republican causes.
  • The radical differences over the role of the national government vis-à-vis the states.

The gulf between Federalists and Republicans was so great as to make today’s differences between staunch tea party members and their Democratic counterparts seem minor by comparison. While his narrative is fascinating, Hoffer nonetheless offers his accounts with admirable objectivity, giving balanced weight to the claims of Federalists and anti-Federalists alike.

The trial
It is against that backdrop that we come to the April 1800 trial of Thomas Cooper, the lawyer and publisher of the Sunbury and Northumberland. He was charged by grand jury indictment with violating the Sedition Act for “designing and intending to defame the President of the United States, and to bring into contempt and disrepute, and to excite against him the hatred of the good people of the United States.” Ironically, as Hoffer notes, some of the harshest criticisms leveled against President John Adams came from Alexander Hamilton who believed the president was too timid in his dealings with France. Of course, Hamilton was never prosecuted.

Cooper, a relatively moderate man in an era of fierce passions, pleaded not guilty. He tried unsuccessfully to subpoena Adams, Secretary of State Timothy Pickering, and a member of Congress. Cooper likewise arranged to have his entire trial transcribed, if only to allow Republican papers to reprint his criticisms of the Adams administration without too much fear of prosecution. Meanwhile, Supreme Court Justice Samuel Chase, a friend of Adams’, presided over the trial along with District Court Judge Richard Peters.

Even if the Federalist marshal, prosecutor, grand jury, and jurors had not been stacked against him, and even if the Federalist judges presiding over his trial were not biased against him, Cooper had another problem — the law as applied in his case. Much of what Cooper published that was deemed seditions was a matter of opinion. But the law placed a heavy burden on him to prove that each and every one of his statements was true. Worse still, the rules of evidence, which Hoffer does a superb job in explaining, made it difficult, if not impossible, for Cooper to get a fair trial and put on a viable defense. Then there were the jury instructions that Justice Chase, a former anti-Federalist turned arch-Federalist, offered up. One of the tamer of those instructions was the following:

“If a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature, he effectively saps the foundation of the government … . [It is a slow], but most sure and certain, means of bringing about the destruction of the government.”

The verdict was predictable. Though Hoffer does not specify the exact sentence (6 months) or fine ($400), he does point out that Cooper had to put up a “$2,000 bond for his future good behavior and could not attack the government.”

Overall assessment
All in all, The Free Press Crisis of 1800 is an extraordinary book, given its compactness. True, the slim volume could have benefited from more details here and there (e.g., 40 years after Cooper’s conviction Congress authorized repayment of his fine with interest). And Hoffer might well have included at least a passing textual reference to George Hay’s famed 1799 Essay on the Liberty of the Press — the essay that ushered in much of the then-new libertarian thinking. Finally, a reproduction of the portrait of the stocky Thomas Cooper would have been nice on the cover or as a frontispiece. Such matters notwithstanding, this book nonetheless makes for a valuable addition to the literature.

On the interpretive side, Hoffer opines that the Cooper trial “was, on balance, fair. It was the law that was censurable.” The latter statement (insofar as it concerns the Sedition Act, the common law, and the rules of evidence as applied in the case) is surely true. Reasonable minds may differ, however, with Hoffer as to the fairness of the trial, especially when one considers the bias of everyone from the Federalist prosecutor to the Federalist jurors to Justice Chase and his slanted jury instructions.

More important, there is the supreme law of the First Amendment. It seems to this reviewer that the arguments of the likes of Albert Gallatin resonated far truer with the First Amendment, even at that time in history, than did those of Chase, who had a cramped view of freedom of the press. The matter is, to be sure, a complicated one, and more might be said on both sides.

History matters
The closing lines of Peter Hoffer’s truly excellent book bear repeating and remembering: “[L]aw can confront power with powerful arguments, but those arguments can all too easily be detached from the context in which they are made and put to other uses. The argument itself should never be offered apart from its circumstances. That lesson should be taught to each generation of Americans, especially those who apply and interpret our law.”

How one interprets that message, how much the past dictates the future, and what all this means for how we construe our Constitution is a topic for another day. For now, it is enough to say that context counts, history matters. Heed those words.

Ronald Collins is the Harold S. Shefelman Scholar at the University of Washington Law School and a fellow at the First Amendment Center. His latest books are We Must Not be Afraid to be Free: Stories About Free Expression in America (Oxford University Press, 2011), co-authored with Sam Chaltain, and The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010).