Despite, or perhaps because of, their role in the rise of newspaper politics, Republican gentlemen typically held many attitudes toward printers, editors, and political newspapers that were similar to those of the Federalists. Though sympathetic to their own personal journalistic supporters, many Republican leaders allowed their irritation at Federalist slanders to mature into general principles, lumping all newspaper editors into a single licentious mass. This was especially true for the highest Republican leader of all. When the young printer and budding editor John Norvell wrote to Thomas Jefferson for advice on running a newspaper, the president replied with a screed blasting his correspondent’s choice of careers. “It is a melancholy truth,” Jefferson sighed bitterly, “that a suppression of the press could not more compleatly deprive the nation of its benefits, than is done by its abandoned prostitution to falsehood.” He elaborated:
Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put in that polluted vehicle.l.l.l. I really look with commiseration over my fellow citizens, who, reading newspapers, live & die in the belief that they have known something of what has been passing in the world.l.l.l. I will add that the man who never looks into a newspaper is better informed than he who reads them; inasmuch as he who knows nothing is nearer to truth than he whose mind is filled with falsehoods & errors.1
Many of Jefferson’s lesser colleagues agreed. Republican Congressman George W. Campbell asked his Tennessee constituents to disregard (without party specification) “the slanderous publications of party, hireling, and petty newspapers, calculated only to sow dissensions, excite distrusts, and disturb the public mind.”2
Republican leaders did not usually practice the open, ham-fisted social prejudice of the Federalists, but they shared the Federalist desire for a gentrified press. The perceived personal and rhetorical vulgarity of printer-editors was distasteful enough, but beyond that statesmen simply did not trust printers and other relatively plebeian types (such as the refugee radicals) to take the calm, rational view of public affairs that educated gentlemen supposedly did. They preferred editors whose backgrounds and likely reactions were closer to their own, or who could be easily controlled, as they found that refugee radicals and printer-politicians often could not be. Even while encouraging the spread of newspaper politics, Republican leaders avoided too close an embrace of the new political professionals, especially those who lacked gentility, and eagerly sought for more palatable alternatives.3
Hence Jefferson had chosen a young Philadelphia gentleman over more experienced printer-editors to manage his administration organ, the National Intelligencer. Besides his impeccable family background, Samuel Harrison Smith had multiple degrees from the University of Pennsylvania and a membership in the American Philosophical Society, attributes that strongly recommended him to Jefferson despite his mediocre track record as a publisher of largely apolitical Philadelphia newspapers. No troublesome radical, Smith proved an utterly reliable mouthpiece. Refusing to seek any political role or glory for himself, he allowed administration members to insert articles at will and set the Intelligencer’s political line. Smith’s handpicked successor, Joseph Gales Jr., admitted that his onetime mentor was “so bound to follow the directions of others that he would march directly into a brick wall if ordered to do so by a superior.” According to the National Intelligencer’s biographer, “Smith’s deficiency of creative power . . . blind subservience . . . mild manner and moderation produced a newspaper with these same characteristics.” That was just how Jefferson liked it. Given his lack of political fire, it is not surprising that Smith tired of politics relatively early, retiring to banking, real estate, and country life in 1810 at the urging of his Federalist socialite wife. In fact, Margaret Bayard Smith, a novelist and popular Washington hostess, was a far more respected and influential political figure than her milquetoast husband.4
Jefferson’s preference for the pliable, genteel Smith over a more difficult character such as William Duane, who expected to edit the administration organ himself, was rooted partly in the larger southern aversion to printer-editors. This first showed itself in the 1790s but intensified later, as native-born southern gentlemen learned to be successful newspaper proprietors. An important factor in this was heavy state government support for certain favored newspapers whose editors were well integrated into the state’s political elite. Eventually, the aversion extended beyond printers to editors who were aliens of any kind (social, ethnic, regional, or ideological) to the southern gentry. These trends show clearly in the history of the last newspaper with which Jefferson was involved, the Richmond Enquirer.
Virginia’s experience with outsider journalists was notoriously terrible. James Thomson Callender had been brought in to edit the Enquirer’s predecessor, the Examiner, in the late 1790s, but after Jefferson’s victory, he turned against the Republican establishment for failing to support him adequately. He wanted to be postmaster of Richmond, but the capital of the president’s beloved home state (to which Jefferson always applied very different standards than the rest of the country) was the last place on earth where this particular president would ever appoint a common, hard-drinking, foreign radical like Callender. The Richmond postmastership was reserved for a man of “respectable standing in society,” Jefferson wrote. A stern moralist in spite of his bibulous habits, Callender also became disgusted by Virginia culture: the dueling, the pretensions to aristocracy, and, most of all, slavery and the sexual hypocrisy surrounding it. Callender vented his feelings by leaving the Examiner, starting a rival newspaper called the Recorder, and publicizing the alleged affair between Jefferson and Sally Hemings, to which he added similar innuendoes about other leading Virginia Republicans.5
After Callender’s defection, the Examiner sagged and eventually collapsed under the mismanagement of the dissolute gentleman-duelist Meriwether Jones. Then, with Jefferson’s encouragement, a scholarly young dilettante named Thomas Ritchie purchased the paper and renamed it the Enquirer in 1804. One sign of Jefferson’s countenance was that Ritchie’s paper had the local contract for publishing the U.S. laws from its very first issue, a highly unusual honor for a new newspaper.6
Unlike Callender, the Enquirer’s editor was a thoroughly safe man. The younger son of a wealthy merchant who had made himself a substantial planter, Thomas Ritchie had flitted from career to career, reading law briefly with his mother’s relative Spencer Roane, the eminent Virginia jurist, then moving on to studying medicine in Philadelphia. When Ritchie’s “tender sympathy with human suffering” cut that educational plan short, he followed his literary tastes into stints as a teacher and a bookseller, before finally determining “to take up the editorial pen.”7
Connected by parentage and marriage to numerous aristocratic Virginia families, Ritchie was a different kind of political professional from his northern counterparts, a full social equal of the political leaders he dealt with and a man of eminently genteel values and sensibilities. While reigning for decades as Virginia’s leading political editor, Ritchie was also Richmond’s leading society toastmaster: managing balls, joining clubs, receiving dignitaries, and being “the perfect gentleman in his attentions to the ladies.” These were not roles that James Callender or William Duane could have managed.8
Ritchie’s paper was as thoroughly refined as its editor. Its rhetoric was florid and formal, its tone ostentatiously high-minded. In an early issue, the editor ended a lengthy statement of his theories on “The Press” with a typical gentleman’s declamation against “licentiousness” in the press. Using much the same language as Jefferson’s letter to Norvell, Ritchie declared a licentious press “almost as useless as no press at all.” What value could be derived from writings “which contain not the luminous opinions of a candid judgment, but the suggestions of party spirit”?9
On a more practical level, Ritchie had no intention of eschewing party spirit: he was installed on the state Republican General Committee within two years of the paper’s founding and remained one of the state and national party’s most influential figures into the 1840s.10 He was also a professional rather than an amateur politician, applying for the office of public printer even before his newspaper began publishing. Still, even in his most narrowly pecuniary political dealings, Ritchie always maintained a gentleman’s decorum and dignity. He managed to sound like a statesman even when he was soliciting printing patronage, displaying elaborate indifference to the favor he was seeking. Take, for instance, his initial application to the governor for the post of Virginia public printer, which he was to hold for decades:
T. Ritchie ofFers his . . . services to the Executive for the office of Public Printer. In bringing himself forward as a candidate for this appointment, he does not pretend to decide on his own qualifications or those of his competitors or on the interests of the State. He merely wishes to express to the Council his willingness to discharge the duties of this office, and his decided belief that they will not be neglected should they devolve on him.11
Ritchie engaged in political combat, but he did so in the “fastidiously polite and well-bred” manner that Fisher Ames had prescribed for the Federalist press. He promised that there would be only so much of party in the paper “as may be necessary for the elucidation of unsettled truths, without mixing up with it any of the grossness of vulgar or personal abuse.” By all accounts, he largely kept this promise throughout a long career. It was backed by his desire that the Enquirer do nothing to besmirch “his own personal honour” as a gentleman, language foreign to many northern political professionals.12
Ritchie proved to be exactly the sort of urbane, elevated, prudent man that Thomas Jefferson had always wanted in an editor. Pleading a need for “tranquility and a retirement from the passions which disturb it,” Jefferson claimed not to read or subscribe to newspapers after his presidency, making a single exception for the Enquirer. The former president repeatedly boasted to correspondents that he read “no newspaper . . . but Ritchie’s.” Writing to John Adams, he offered an unsolicited testimonial. Ritchie, Jefferson wrote, “culls what is good from every paper, as the bee from every flower.”13 The man whom Duane and Callender had helped raise to the presidency preferred a sweeter-smelling journalism and politics than they had practiced.
This pattern of newspaper politics falling under the control of bona fide southern gentlemen (in terms of both social and geographic origins) held true throughout the Old South. Of more than 110 editors who served in Congress up to 1850, only one of the southerners, Seaton Grantland of Georgia, was a printer by training, and later even he became a lawyer and bought a plantation.14
In class-conscious South Carolina, for instance, the roster of men who edited the leading Republican and Democratic papers, the City Gazette and Mercury, was a long parade of highly educated and distinguished personages, getting more so, and more insularly South Carolinian, over time. The list of distinguished Charleston editors begins in the 1780s with Philip Freneau’s calmer brother and fellow Princeton graduate Peter, a migrant from New Jersey but a longtime resident who also served as South Carolina secretary of state.
Freneau was joined in 1801 by David Rogerson Williams, educated at the future Brown University until “the remittances from his plantation . . . failed him” and he had to come home and restore the family fortune. This Williams did by converting his plantation to cotton and then opening one of the South’s first textile mills. After editing the City Gazette for three years, Williams served successively as an important member of Congress, brigadier general in the U.S. Army, governor of South Carolina, and state senator. As an editor, Williams employed an interesting method of neutralizing some of the editor-printer friction that had plagued earlier southern political journals: he joined the Charleston Mechanic Society.
After Freneau and Williams came the novelist William Gilmore Simms and then Henry Laurens Pinckney, a scion of the state’s great founding family and a South Carolina College graduate. The longtime editor of the Charleston Mercury and a staunch Nullifier, Pinckney served two terms in Congress, as speaker of the state House of Representatives, and as mayor of Charleston. Like many elite Carolinians, he seems to have worn his lineage on his sleeve. Later it was written that no one who knew Henry Pinckney ever forgot his “marked bearing.” Another specimen of swaggering southern manhood among the Charleston editorial corps was John Lyde Wilson, a lawyer who edited the Charleston Investigator during the 1810s and soon after was elected governor. Wilson became best known, however, as the Old South’s leading authority on dueling, by virtue of authoring The Code of Honor, a popular handbook on the subject.15
Southern editors were not always as blue-blooded and self-consciously southern as these South Carolinians, but an exception from North Carolina will demonstrate the rule that seemed to exist almost everywhere in the region. Growing wealthy off state printing contracts, the radical exile Joseph Gales moderated his political beliefs and settled in for decades of comfort, editing the Raleigh Register as the organ of the North Carolina Republican establishment. His college-educated son and assistant, Joseph Gales Jr., later proved an ideal choice, in terms of reliability and predictability, to take over the National Intelligencer after Samuel H. Smith’s retirement.16 The experiences of other editorial migrants to the South tended to be more like those of Callender: short, stormy, or both. In Georgia, for instance, several editors of foreign or northern extraction, including the refugee radical Denis Driscol and the exiled Connecticut editor Samuel Morse, arrived shortly after 1800, only to meet failure or early death.17
After the time of Callender, precious few Yankees, foreigners, radicals, or even printers would be allowed to guide southern public opinion again, a task rendered highly sensitive not only by the oligarchic nature of southern politics but also by the need to protect the institution of slavery from criticism and political action. As the southern elite’s commitment to slavery hardened and its retreat from the relative freethinking of the late eighteenth-century hastened, the peculiar institution would rarely be challenged by the region’s thoroughly gentrified press. The South became a place where political dissent or even debate (at least on fundamental issues such as slavery) was increasingly unwelcome, and the southern party press was fully complicit in this process.18
The South developed its own uniquely genteel tradition of newspaper politics, but elite desires for gentrification and second thoughts about newspaper partisanship and printer-politicians were by no means strictly southern phenomena. The impulses appeared everywhere as the lawyers, planters, and merchants who made up the nation’s traditional political class considered the implications of the new politics and pondered the wisdom of abandoning their privileged position in public life and ceding away control of the printed public sphere. Gentleman politicians of both parties generally decided in the negative, and in no area was this clearer than in their course on the question of press freedom.
If, as the leading scholar of American press freedom has argued, a “new libertarianism” emerged among Republicans in the wake of the Sedition Act, it was not unanimously or consistently espoused. The most radical tracts of the late 1790s were written by young firebrands such as Virginia’s George Hay and New York’s Tunis Wortman and John Thomson, men whose leadership status in the party was marginal at the time they wrote. Numerous Republicans of greater stature never abandoned older, more restrictive notions of press freedom, and even some promoters of the new approach rethought their positions later.19
At any rate, serious reservations about a completely unrestrained press overtook Republican gentlemen almost as soon as they became officeholders themselves and began receiving blasts from the newly energized Federalist press. As the primary target of these attacks, Thomas Jefferson was foremost among those who concluded that some form of check on the press might be necessary after all. When Pennsylvania Governor Thomas McKean, himself a past master at suing and prosecuting editors, suggested legal action against some of the Philadelphia Federalist editors in early 1803, Jefferson responded with cautious but distinct enthusiasm, rationalizing that some purgation would purify and actually strengthen the press. “Having failed in destroying the freedom of the press by their gag-law,” Jefferson argued, the Federalists now sought to undermine it with an opposite strategy, “that is by pushing its licentiousness & its lying to such a degree of prostitution . . . that even the least informed of the people have learnt that nothing in a newspaper is to be believed. This is a dangerous state of things, and the press ought to be restored to its credibility if possible.” Jefferson still believed that the First Amendment barred any federal action against the press, but he now took the position that states could and should punish sedition when necessary. “I have therefore long thought,” he concluded, “that a few prosecutions of the most prominent offenders would have a wholesome effect.”20
McKean heeded this advice and more, not only launching a prosecution against Federalist editor Joseph Dennie, but also proposing a tightening of the state libel laws. Dennie was prosecuted for his undeniably rather seditious-sounding remark, quoted earlier, that any “brave man” would “draw his sword” against democracy. It was urgent, the governor argued in his opening address to the state assembly in 1802, that the press’s “unparalleled licentiousness in publishing seditious and infamous libels,” which was threatening “finally to annihilate every benefit of this boasted medium of public information,” be “controuled and corrected.” Though McKean’s comments referred mostly to Dennie and other Federalist journalists, they glanced at a deeper problem that was equally traceable to the Republican editors. Echoing Alexander Addison’s grand jury charges of a few years past, McKean raised the specter of newspaper editors, persons with few “natural” claims to leadership who nevertheless controlled access to print, ruling the community solely through their power over the precious reputations of gentleman politicians. Present conditions amounted, McKean complained, to “a tyranny, by which the weak, the wicked, and the obscure are enabled to prey upon the fame, the feelings and the fortunes of every conspicuous member of the community.”21
Though the 1802 Pennsylvania legislature declined to carry out Governor McKean’s suggestion, Republican officials in New York and Connecticut did follow his example, hauling Federalist editors (and in the latter state, even some clergymen who had attacked Jefferson from the pulpit) before the courts.22 In Virginia, lawyer George Hay resorted to lawsuits and violence against the press, in the form of James Callender, a few years after penning one of the major “new libertarian” tracts. Hay found it necessary to write a second pamphlet reconciling his actions with his earlier theories and significantly qualifying his libertarianism.23
Massachusetts attorney general and Republican leader James Sullivan perhaps best expressed the new Republican establishment’s sense that the more extravagantly permissive doctrines put forth in the 1798-1800 period needed to be tempered. In 1801 Sullivan published a pamphlet on political libels, attempting to set down sober legal doctrines on the issue as opposed to the impassioned political statements of Hay, Wortman, and Thomson. He condemned the Sedition Act not so much for its legal principles, which he deemed sound, but because it was not “executed with that discretion which might procure the confidence ... of the people.” The government still needed protection from sedition, he believed, and could secure it under a rejuvenated federal common law. Sullivan was willing to tolerate criticism of the government’s acts and policies but not attacks on government officials themselves. Moreover, even ostensibly protected commentaries on government policies could be subject to sedition proceedings if their words had “an intent to subvert the government . . . , to bring it into hatred or contempt, or ... to alarm the people or to cause them to withdraw their love and support,” statements remarkably reminiscent of the Sedition Act itself.24
Indeed, the legal standards for criminal libel that Republican jurists employed in the early nineteenth-century cases were actually somewhat more restrictive than were the Zengerian principles embodied in the Sedition Act: truth was allowed as a defense only if the libel was not maliciously intended and only if it directly involved an official’s public conduct in office. New York’s Republican attorney general Ambrose Spencer put this standard into action in 1802, when he prosecuted Harry Croswell, editor of the Hudson Balance and Wasp, for criticizing Thomas Jefferson.
Spencer admitted that “in a government fixed on the basis of liberty, it is important that citizens should know the conduct of their rulers.” But if the facts threatened to “loosen the bands of society” by destroying a gentleman’s hard-won reputation and bringing on a duel or some other disruption of sociability, then even factual statements could be criminal, “especially if they are such, with which the public have nothing to do; if they merely touch the private deportment and morals of the man.” In practice, Spencer did not follow his own standard, harassing Croswell not for remarks on Jefferson’s sexual relationships, which the budding clergyman had avoided, but instead for charging Jefferson with the far more “hellish” infraction of paying Philip Freneau and James Callender to write newspaper articles and books. The real standard seemed to be that only the most politically embarrassing charges would be prosecuted, and evidently the new Republican establishment felt especially embarrassed about their role in the rise of newspaper politics.25
The surprisingly limited conceptions of press freedom and increasingly negative view of newspaper politicians evinced by Republican officeholders brought a complex reaction from the Republican editors. As committed party zealots, they usually tried (if no factional dispute interposed itself) to support whatever actions national, state, and local Republican officials took, including the occasional legal proceedings against their Federalist counterparts. They did so, however, with some reluctance and an uncomfortable awareness of the ironies involved.
In response to Governor McKean’s libel proposals of 1802, William Duane agreed that newspapers given to “indiscriminate abuse” of public men ought to be “discountenanced.” He thought the Gazette of the United States particularly well suited for this treatment. Still, the Aurora editor pointedly omitted any words of approval for the suggested tightening of the libel laws. He endorsed only the idea that the libelous papers should not be “supported by the patronage of men friendly to the constitution.” In other words, no one should subscribe to Federalist newspapers or give printing contracts to their proprietors, limiting the coercion used to that which could be exerted through the marketplace. In a similar vein, the Danbury Republican Farmer declared that while it was clearly time that many “disgraceful” Federalist publications be “checked,” this should be done “not by legal shackles, or legislative provision, but by the neglect of the people,” which would force “these wrong-headed editors ... to seek some other means of living, than ravaging their country with political pestilence.”26
Duane particularly objected to the prosecution and continuing harassment of the turncoat Callender in Virginia. Though the Aurora had spent much of the previous year eviscerating Callender, Duane spoke from his own experience in making political hay out of martyrdom when he questioned “whether the method taken . . . will have any effect other than the contrary of what was intended.” No one believed Callender’s tales, Duane argued; persecution would only give him notoriety and credibility that he otherwise lacked. Moreover, freedom of the press seemed “much endangered” by the precedent of Republicans prosecuting an editor.27
Charles Holt reacted with cagey ambivalence to the troubles of his crosstown rival Harry Croswell. Though still deeply bitter about his own troubles under the Sedition Act, Holt refrained from calling for Croswell’s prosecution and focused instead on the hypocrisy of the Federalists regarding the press, calumniating government leaders when they had once wrung their hands over the dangers of any political criticism and crying out for the same liberties they had recently tried to suppress. He marveled at such “low and venomous slander” coming from “men who but a few months since were harping upon the respect due to constituted authorities, and the sacredness of private character.” The Republicans’ renunciation of sedition prosecutions was one of the qualities that made them superior to the Federalists. “If republicans made use of sedition laws or the good old common law to protect their rulers from these unprincipled vipers,” Holt suggested in September 1802, before any of the actions against Federalist printers had been commenced, “alas! every gaol would be a federal printer’s office.”28
When the proceedings against Croswell began, Holt had to adjust his course. Commenting on a call by William Coleman for private suits against Republican editors, Holt allowed himself to vent an entirely natural desire for Federalists to suffer as he had while still making his own disapproval of the prosecution clear. “We shall see how long [Coleman] will hold his high opinion of prosecutions,” Holt wrote in June 1803, “for he may shortly, from bitter experience, deprecate their effects.” Once Croswell was convicted in July, the Hudson Bee printed only a “communication” from one of the participants defending the fairness of the trial, rather than editorializing.29
When the conviction was upheld by the Republican members of the state supreme court in August, the Republican party’s spokesman in Hudson could avoid the subject no longer. Holt did not condemn the trial outright, but he did attack the Federalists’ objections to it. He recalled the sad case of David Frothingham, a journeyman printer who assisted Thomas Greenleaf’s widow Anne in the management of the New York Journal. Frothingham was hauled into court, under the common law of seditious libel, for republishing a piece against Alexander Hamilton. Denied the use of truth as a defense, the printer was swiftly condemned to a $100 fine (the equivalent of three months wages) and four months in Bridewell prison; once released, he had to pay an additional $2,000 bond for his “good behavior.” The Journal folded, and Frothingham, his printing career cut short, apparently went to sea, dying penniless years later.30
The case paralleled Croswell’s well, except for the more severe punishments and more ignominious fate meted out to the Republican Frothingham. If Blackstonian libel rules had been “rigorously enforced against a republican printer” by Federalist authorities, Holt asked, “with what propriety can the federalists . . . now clamor” when the same rules were used “to punish one of the most systematic and execrable libelers in the United States?” He answered that “their lips ought to be sealed on the subject.” The Croswell case was simply a matter of the Federalists being hoist by their own pernicious doctrines:
If the law on which Croswell’s conviction took place is hostile to freedom and a republican government, why did they not, after the trial and conviction of Frothingham, manfully step forth and correct it? No, the common law of England was then right, it was the stupendous fabric of wisdom which they revered; but now the tables are turned, its lash impends over one of the brotherhood, and it is all that is vile and detestable.31
All in all, it was a splendid performance: Holt managed to keep a consistent Republican line—attacking the common law and expressing distaste for seditious libel prosecutions—while appearing to support the party leadership. However, Holt obviously hoped that the Republican crackdown would end soon. Two weeks later, when the state supreme court charged a Federalist printer in Ulster, New York, with contempt of court for criticizing the Croswell decision, a disappointed Holt announced that he would “forbear any animadversions” for the present and trust that the “rights of editors” would be properly upheld when the case was actually tried.32
Other Republican editors shared Holt’s attitude. Reprinting one of the Bee’s articles on the Croswell case, Samuel Morse, a former Connecticut Republican editor now running the Savannah Georgia Republican, chuckled that the Federalist papers were suddenly “in flaming zeal for the protection of the liberty of the press,” but for once, he quickly added, the Federalists were in the right. It was all well and good to shield private individuals from newspaper attacks, but since governments and legislatures were made up of private individuals, “unless a very considerable latitude is given in discussion, liberty may be endangered.”33
At least a few Republican printers came to agree with the Federalists that Republican leaders were merely demagogic hypocrites, on libel as well as other subjects. To some Republican gentlemen, it seems, printers were mere tools who could be flattered, ignored, or prosecuted as the situation demanded. Both Nathaniel Willis Jr. and Andrew Wright, printers jailed during the Republican newspaper invasion of New England, had the experience of being financially betrayed by sponsors when they got in trouble. Both printers were asked to print what seemed to them dangerously personal attacks and, when they expressed doubts, were promised that they would be fully protected from the consequences.
Trying to reelect a friend and destroy a local ally who had switched parties, Portland Republican leader Dr. Thomas G. Thornton assured Willis, editor of the Eastern Argus, that he “would not be hurt a hair of my head” by publishing Thornton’s intemperate exposures of the renegade. Yet when Willis had been sued and jailed and faced a $4,000 judgment, Thornton decided that the money was the printer’s responsibility. Willis successfully appealed to other, more honorable Republicans, who took over Thornton’s obligation and paid Willis for past-due subscriptions, allowing him to both satisfy the judgment and pay back $1,300 he had originally borrowed to buy the paper. Nevertheless, Willis learned a lesson that soon drove him out of political publishing: “I learned that politicians are not only ungrateful, but supremely selfish. They used me as the cat’s-paw, but took good care to keep all the chestnuts for their own eating.” Willis was converted at a local revival shortly thereafter and became a great success as editor of the Boston Recorder, one of the country’s first religious newspapers.34
The Northampton, Massachusetts, printer Andrew Wright’s experience with political publishing was even worse. Despite repeated promises of “indemnification” for printing Republican attorney Charles Shepherd’s rather scurrilous articles against Governor Caleb Strong, the only concrete aid Shepherd ever gave Wright was the income from a published report of his own libel trial. Wright himself had to fold and stitch 1,100 copies of this report in his prison cell, but only twenty-odd copies were sold. Promises to raise a subscription, appeal for help in the columns of the newspaper, or find Wright an office were all conveniently forgotten, leaving the printer to spend many years in and out of court and prison dealing with the financial aftermath of his prosecution.
Five years after the trial, Wright went to the trouble of publishing a pamphlet about his dealings with Shepherd. “My object in this publication is . . . Revenge!,” Wright admitted, but he also had a serious point to make about the inconsistency of self-styled democrats mistreating and lording it over the artisans they asked to be their allies: “Fellow citizens, weigh these things, and then say what you can think of ... a man who is bawling ‘Liberty and Equality,’ in every public place, who is himself wallowing in wealth, and rolling in luxury, who could suffer one of his own species to become a victim to his too great confidence in him?”35
Sedition prosecutions and money were only two issues over which the partnership of Republican gentlemen and Republican printers could go astray. In fact, it was a relationship fraught with tensions, generated not only by financial practicalities but also by the two groups’ very different perspectives on political life. The differences were partly rooted in class. Gentlemen could not tolerate having their hard-earned “characters” taken away by a mere printer. A primary object of political libel law had always been the prevention of such occurrences.36 As Alexander Hamilton argued at Harry Croswell’s trial, complete autonomy for newspaper editors “would put the best and the worst on the same level.” But editors did not agree that their own entrance into public life constituted, as Thomas McKean put it, “a tyranny” of “the weak, the wicked and the obscure” over their betters, and they fought for their own right to participate.37
Overlapping the class divide but also creating a distinct set of issues was occupational competition. Simply put, editor-politicians offered a challenge to the supremacy of the legal profession over American politics and government. “The United States are ruled by lawyers,” observed one of Alexis de Tocqueville’s informants, exaggerating only slightly. In every period of American history, lawyers have held political office at rates far outstripping their proportion of the population. This state of affairs was established at the very dawn of the United States. Ambitious but politically frustrated colonial attorneys such as John Adams were major leaders of the American resistance movement during the 1760s, and once the resulting revolution broke out, American lawyers seized power and never looked back. They made up almost half the men who signed the Declaration of Independence, more than half of those who attended the Constitutional Convention, and at least 48 percent of the House of Representatives membership up to 1820. Between 1789 and 1952, the legal profession supplied 75 percent of all presidents, vice presidents, cabinet members, Supreme Court justices, and Speakers of the House.38
The rise of lawyers to political prominence at the time of Revolution was noticed and resented by many contemporaries. Ordinary citizens buffeted by the economic upheavals of the revolutionary years perceived, correctly, that the legal profession had benefited from turmoil that had threatened everyone else. For many, lawyers were active agents in maintaining the economic inequities within American society, swarming in to defend the property and privileges of the wealthy or to take away the small holdings of the poor and debt ridden. Moreover, the complexities of the law, especially the unwritten English common law, seemed designed to mystify ordinary men and obfuscate justice.39
In the late 1780s, growing popular antipathy toward the bar inspired a major movement to reform the legal system and restrain the power of lawyers, with the Boston Independent Chronicle’s Benjamin Austin as one of its major spokesmen. Some reformers aimed at nothing less than the destruction of the profession, but lesser goals included prohibition of English precedents, appointment of nonlawyers to the judiciary, and the defeat of lawyer-candidates for office. The most innovative proposal was a new court system that would transfer much adjudication from judges to arbitrators who were social and occupational peers of those they judged. This radical reform movement largely failed. Lawyers turned back efforts to regulate or restrict the profession and spearheaded new state and national constitutions that scaled back the democratic features of the revolutionary state governments and established a potent source of power for the legal profession, in the form of the “independent judiciary,” a separate, unelected branch of government.40 During the 1790s, the conflict over the legal profession and legal system was supplanted by other issues, but it became an important source of the rift that took place in the Republican party after 1800.41
Printer-editors had their own particular reasons for disliking the legal profession, reasons that lay at the heart of the difficulties in intraparty relations. Burdened by chronic debts and constantly under the gun of libel law and contempt of court citations, editors found themselves more often victimized than protected by the legal system. William Duane and others had long crusaded against the common law as repressive and un-American, and for them it was discredited once and for all by the Federalists’ abuse of it during the crisis of 1798–1800. The “reign of terror” had also cast much unfavorable light on the independent judiciary. The open partisanship of judges such as Alexander Addison and Samuel Chase in the sedition cases, and President Adams’s attempt to fill a newly expanded federal bench with Federalists in the waning hours of his administration, convinced many Republican editors that the “independent judiciary” was merely a cant phrase for the institutionalization of arbitrary power in flagrant defiance of the people’s wishes.
Some Republican printers seriously doubted whether any lawyer would or could be a sincere democrat. “Farmers, Mechanics, and Laborers are generally . . . attached to equal rights and rational liberty,” wrote James J. Wilson of the Trenton True American, but lawyers were naturally disposed to “bend at the throne of Power” or “worship at the shrine of Wealth.” Though there were lawyers in both parties, Wilson regarded the whole profession with a skeptical eye. On a day when the state supreme court was sitting in 1802, he wrote to a friend that he:
could count as I sit at my window not less than an hundred Lawyers, passing and repassing. ... Is it any wonder there are so many poor people, when it is considered what swarms of locusts infest the land and devour their substance? What a pity a general combination were not formed to starve . . . them to death or to work, “as the case may be.” Yet if such a plan were adopted generally, we should lose [some] good Demos, tho’ a much greater number of evil demons.
It was much easier for Republican printers to believe that all lawyers were actual, latent, or hidden Federalists and elitists.42
Knowing that ordinary voters shared their hard feelings, printers were not above turning lawyer domination into a campaign issue. During the 1808 campaign, the Easton, Pennsylvania, printer Thomas J. Rogers asked voters which they preferred for public servants, “lawyers, who invariably treat you with contumely and contempt, or honest & well meaning farmers, who will always treat you with kindness and attention? If you prefer honest farmers to haughty and overbearing lawyers, then to the poll and vote for the Republican ticket.” To underline the point, he printed the opposing candidate slates as the “Republican Farmers’ Ticket” and the “Federal Lawyers Ticket.” Years later, as a congressman fighting for reelection, Rogers would use the same ploy. He was victorious in both cases.43
These two groups—lawyers and printer-editors, with different relationships to the society, the economy, and the legal order—were thrown together after 1800 as co-custodians of the Republican party. Though not monolithic on either side, the contrasting points of view generated contrasting ideas. In the area of libel law, many of the Republican party’s lawyers were loathe to destroy the infrastructure of legal doctrine that had always served to check potential social insurgents, while editors saw it only as a cudgel with which they would eventually be beaten.44
Perhaps the sharpest contrast could be found in the two groups’ approach to political life itself. Lawyers regarded the public sphere with a strong sense of both entitlement and the dignity that ought to attach to men in public stations. The vast majority of gentlemen among the lawyers were also uncomfortable with the new direction in which editors had taken the political culture in the late 1790s. They were not anxious to see such freewheeling, vituperative partisanship institutionalized. On a less conscious level, the legal fraternity was also jealous of the competition editors offered to their dominance of American politics and government.
For their part, editors were well aware—and resentful—of the way lawyers and other educated professional men dominated the nation’s public life. Connecticut Republican printer Selleck Osborn described his state as “a country conquered by lawyers,” who “have succeeded each other in all the offices, as sons of noblemen.” When a Federalist writer expressed horror that many Americans “educated only to follow the plough consider themselves capable of guiding the helm of state,” Osborn responded with an explosion of sarcasm:
Have we indeed arrived at that period of degradation, when others besides lawyers & doctors dare to appear in our legislature? . . . Can no decisive measure be immediately adopted to keep these ignorant FARMERS at a distance from the helm? Ungrateful farmers! Was it for this that so many lawyers . . . have united in their labors, that their sons . . . endured rigid abstinence and intense application at Yale College; and afterwards “grew pale at the midnight lamp,” to acquire the science of law . . . ? Must we after being “educated” on purpose for Governors, Councillors, Judges, and representatives, endure the mortification of seeing our natural privileges usurped . . . ?45
Printer-editors could have no such sense of entitlement about their role in politics, and they were outraged to encounter it in others.
It is significant that Selleck Osborn directed these comments to a Federalist writer. Like most Republican editors after 1800, he knew that the most dangerous threat to the democratic values, political role, and personal liberty of printers came not from Republican lawyers but from the Federalists who still controlled many state governments and dominated the courts in most places outside the South.46
Famously, and rather deceptively, there was a sudden awakening of libertarianism among some Federalists now that some of the weapons of state were in Republican hands. Alexander Hamilton helped defend Harry Croswell and thereby earned himself a rather ironic place in the pantheon of crusaders for press freedom.47 In reality, the libertarian aspects of Hamilton’s position were relatively few: the New York court had tried to restrict the jury to deciding the facts of publication, the traditional position of Blackstone and the English common law, but Hamilton reaffirmed the right of the jury to decide whether the publication was libelous, as stipulated in the Sedition Act. At the same time, Hamilton demolished Judge Spencer’s distinction between criticism of government measures and of the men who made them. If the latter could not be discussed along with the former, it would render the people’s right to change their rulers useless, Hamilton argued, and “in vain will the voice of the people be raised against the inroads of tyranny.” Of course, this was a point that Republican newspapers had often made in defending their criticism of Washington, Adams, and Hamilton.48
Rhetoric aside, Hamilton largely concurred with the Republican lawyers on a libel standard somewhere to the right of the Sedition Act. The former treasury secretary contended for “the liberty of publishing truth . . . even though it reflect on government, magistrates, or private persons.” Yet he did not argue for “unbridled licence.” Indeed, Hamilton considered “the spirit of abuse and calumny as the pest of society.” Even George Washington had not been exempt from attack, and “falsehood eternally repeated would have affected even his name.” Complete freedom of the press “therefore cannot be endured.” The press should be “under the restraint of our tribunals,” which would “interpose and punish” the licentious.49
Therefore, truth by itself should not preclude a publication’s being judged libelous. The “weapon of truth” should not be used “only to make a man disliked” or for “disturbing the peace of families” or “for relating that which does not appertain to official conduct.” In legal terms, the standard Hamilton advocated was that the press could publish any statement that was true, as long it did so “with good motives and for justifiable ends.” This “truth-plus” libel standard became the basis of most nineteenth-century state libel statutes. Legislatures and judges embraced it because it provided more rather than less protection for the reputations of officials, leaders, and governments than did the Zengerian standard of the Sedition Act. By giving defendants the additional burden of proving the purity of their motives, the Croswell doctrine left ample room for judges, still mostly Federalists and always gentlemen, to act on their personal and political sympathies and antipathies.50
In essence, the judge and jury’s subjective beliefs about the character and intentions of an author or publisher became the measure of a publication’s libelousness. This principle was spelled out especially clearly by Massachusetts Chief Justice Theophilus Parsons in the 1808 case Commonwealth v. Clap. A Bostonian named William Clap served two months in prison for posting notices along State Street asserting that auctioneer Caleb Hayward was “a liar, a scoundrel, a cheat, and a swindler,” after Parsons upheld a lower court’s refusal to hear evidence that the charges were true.
Parsons’s decision expounded the ancient common law doctrine that negative statements about a person could be offenses against the state not because of their falsity, but because of their tendency to breach the peace by inspiring quarrels and vengeance. Thus true statements could actually be more dangerous than false ones, and “the truth of the words is no justification in a criminal prosecution for a libel.” The only defense against a libel charge, in Parsons’ view, was “by proving that the publication was for a justifiable purpose.” Parsons allowed that truthful publications attacking public officers or candidates might sometimes be allowed, but severely restricted the possibility of this right being successfully used. Criticism “made with the honest intention of giving useful information, and not maliciously, or with intent to defame” might be lawful, but “calumny against public officers, or candidates” (as the court defined it) remained “an offence most dangerous to the people, and deserves punishment, because the people may . . . reject the best citizens, to their great injury.”51
With judges like Parsons deciding the cases, there was little or nothing to stop state Federalist leaders from trying to punish their critics just as they had done at the national level during the 1790s. In Federalist-controlled New England, the Republican push to win over the region with newspapers brought not only a journalistic arms race, but also a new wave of persecution against Republican editors. Naturally, Massachusetts led the way. In 1802 John S. Lillie of the Boston Constitutional Telegraphe spent three months in prison for an oblique comment about state chief justice Parsons. Lillie lost his newspaper in the meantime, but he avoided total disaster by finding work (doubtless through political means) in the local United States Loan Office and then in the Boston branch of the national bank.52
William Carlton of Salem was not so lucky. Regarded as one whose “day & night, exertions to erase error & falsehood . . . defeated federalism” in the 1802 congressional election, the Salem Register editor was targeted by Federalists as an example, one that would “douse the ardor, & render vapid and ineffective” the other new Republican papers in the region. Carlton was indicted for a campaign paragraph opining that it was hard to believe that the British had never bribed their warm supporter Timothy Pickering, the Federalist candidate. The trial was moved to the strongly Federalist town of Ipswich, and the jury there quickly found the editor guilty, sentencing him to two months in prison and imposing bonds for his good behavior (meaning his political silence) for two years.
This was not the harshest sentence an editor ever received, but like many others in his position, Carlton was a marginal person who could not readily absorb the blow. A typically hard-drinking printer whose health had been impaired accordingly, Carlton fell seriously ill while serving his jail sentence, the stresses on him being increased by the threat of two new Federalist suits: a private libel action by Pickering and a prosecution for keeping the Register office open on Sunday. Carlton’s friend Rev. William Bentley believed he never recovered, and two years later Carlton was dead at age thirty-four. He was quickly joined by his wife Elizabeth, a downwardly mobile local socialite who had fallen into Carlton’s bibulous habits under the stresses of trying to manage as a struggling printer’s wife. Salem’s embittered Republicans flatly regarded the couple as casualties of Federalist persecution.53
The Carlton and Lillie cases inspired Massachusetts Republicans to try to reform the state libel laws in 1804, but Federalists defeated the proposal and went on as before.54 Meanwhile, Massachusetts Federalists waged a legal war against the Republican press. The Northampton Republican Spy, one of the new papers founded for the election of 1804, became a particular target. In 1805 a grand jury indicted Timothy Ashley, the journal’s printer, only to have him flee the state. The Spy’s real editor, attorney Charles Shepherd, found another printer, the aforementioned Andrew Wright, to take over in 1806, but he was hit even harder than Ashley. Against his own better judgment, Wright had published some charges of Shepherd’s against Governor Caleb Strong, specifically that he had speculated in government securities while sitting in Congress and that he pressured underlings to give his son a state government job. Wright was charged with seditious libel, and at his trial Chief Justice Parsons brushed aside the defense’s strong evidence that the assertions were true. The distinguished Federalist jurist sentenced Wright to serve six months in prison, pay the costs of his own prosecution, and then submit a bond for three years of good behavior after he was released. Wright was ruined as a printer and later served more jail time for debts arising from his imprisonment.55
There was also sporadic Federalist violence against the New England Republican press. A year before the Republican mob destroyed Alexander Hanson’s Federal Republican office in Baltimore, Federalist vigilantes calling themselves “Silver Greys” broke into the Newburyport Independent Whig late one night, sacking the office and melting much of the type. The local Republicans knew that the crime would have to be “redressed by subscription, not by prosecution” in Federalist-controlled courts. The fledgling Independent Whig proved a much more vulnerable target than the well-funded Federal Republican. After an abortive attempt to revive the Whig ended with a suspicious fire in June, Republican journalism would not show its face again in Newburyport for the rest of the decade.56
In areas where Federalists did not control the state and local governments, they devised more subtle means of coercion. Around the time of the Croswell case, the New York Evening Post, perhaps in one of its Hamilton-dictated editorials, called for Federalists to file private defamation suits whenever Republican editors criticized them. “There is no method so likely to bring them down from their daring flights of effrontery in slander,” editor William Coleman opined, “as for the injured constantly to appeal to the laws of the land for redress.” Given the sorry financial state of most Republican newspapers, the legal costs alone might be enough to put them out of business. Coleman speculated that if such a method had been employed earlier, the Federalists might still be in power.57
The Evening Post’s advice was followed, and private lawsuits became the approach of choice for gentlemen interested in punishing troublesome newspaper editors. In some parts of the country, editors even took to suing each other. By 1806 William Duane alone had been the defendant in sixty to seventy private libel suits and had filed at least one himself. James Cheetham of the New York American Citizen suffered tens of thousands of dollars in libel judgments, from suits instigated by both Federalists and the same Republican grandees who persecuted Harry Croswell.58
This form of harassment was in many ways more effective than criminal libel prosecutions. Private suits created less damaging publicity than sedition prosecutions, since they involved an injured individual attempting to restore his reputation rather than a despotic government trying to quash opposition. Instead of handing an editor the chance for glorious, public martyrdom, private legal harassment wore his emotions and finances down quietly over months and years and allowed the instigator of the suit to keep the moral high ground. By the end of Jefferson’s administration, private lawsuits had reduced Duane to the point where he feared to travel more than two days’ ride from Philadelphia, because such a trip would “carry me out of range of the courts of law, in which I am doomed I fear to linger out my life.”59
In an age when people were imprisoned for debt, private libel suits against a impecunious printer could result in jail time even more easily than seditious libel prosecutions. In 1806 Nathaniel Willis Jr. of the Portland Eastern Argus lost a $2,000 private libel judgment, and because he was unable to pay, spent 100 nights in jail. Borrowing money for a $2,000 bond, Willis was allowed “liberty of the yard,” meaning freedom to move about town during the day so he might find or earn money to pay his fine. However, when the editor dared to go outside the jail for water one winter evening when the pump inside had frozen, a trumped-up charge of “making an escape” was filed and upheld by the court. Forfeiting his bond, Willis found himself owing $4,000 when his business probably grossed half that much in a year.60
As William Coleman expected, the private libel approach was also much harder on Republicans than Federalists. Republican politicians filed private libel suits against Federalist editors but never found the method an effectual check, because Federalists typically had courts, money, and the finest available legal talent in their corner. (An exception must be made for William Cobbett, who left Philadelphia and then the country because of a $5,000 judgment in a case brought by Benjamin Rush.) Well-funded, well-connected, and an attorney himself, William Coleman never lost a lawsuit in which he was the defendant. Coleman was also highly successful as a plaintiff; in 1811 he won the largest libel judgment in New York history to that time against Solomon Southwick, a Republican editor-politician based in Albany.61
The most celebrated incident in the renewed Federalist repression campaign occurred in Connecticut. During Jefferson’s second term, the printer Selleck Osborn came home to his native state after working as a journeyman in New York City and an editor in Sag Harbor, New York. Concentrating on editing and writing rather than printing now, he was first an assistant editor of the Danbury Republican Farmer, and while working in that town, gave a strongly partisan Fourth of July oration that received excellent notices from the national Republican press. That exploit probably earned Osborn the necessary backing (or perhaps just encouragement) for an even braver venture: the founding of a Republican newspaper at Litchfield, in the Federalist heartland of ultra-Federalist Connecticut.62
Osborn’s paper, the Litchfield Witness, railed at the “Cloven Foot” of Federalism with a ferocity borne of an articulate printer’s rage at the militant steadiness of his home state’s social and political habits. Though more given to sarcasm than character assassination, Osborn vowed to give no quarter to the Federalists, who apparently had long succeeded in convincing Connecticut voters, through newspapers, sermons, and word of mouth, that Republicans were social climbers, infidels, libertines, larce-nists, and worse. The new editor warned his opponents to “put up your scalping knives, and cease to mangle” Republican reputations, unless each Federalist was “willing that every transaction of his life should appear in public print.”63
Osborn had not been in business two months when the Litchfield grand jury indicted him for criminal libel. For publishing a partisan but reasonable account of a recent trial in which a biased court had enabled two influential Federalists to successfully sue a Republican for allegedly fraudulent business dealings, Osborn was accused of defaming the judges and jury of the superior court. Later, the son of one of the Federalists attacked the editor with a whip. Then a local justice of the peace sued Osborn for calling him the “Crowbar Justice.” The editor had issued the nickname after the justice had, during the “freemen’s meeting” in which Connecticut citizens voted, openly threatened a poor debtor with reprisals if he voted Republican.64
In the spring of 1806, Osborn was found guilty in both cases. In the “crow-bar case,” the editor and his partner, Timothy Ashley, a more conventional printer, were ordered to give bonds for their good behavior. Ashley complied, but Osborn, given the choice of having “his body or his mind in imprisonment,” refused; he bought Ashley out of their business and began writing the paper from within the Litchfield jail. The Federalist authorities kept Osborn behind bars, without bail or “liberty of the yard,” for the next year. Often he was not allowed visitors, and for a time his cell mate was a deranged man who had recently raped and killed a young woman. Throughout the year, however, Osborn continued to publish the Witness, conduct election campaigns, and excoriate his captors.65
In August 1806 Republicans from all over New England, including many of the state’s now-Republican U.S. government officials, assembled to protest Osborn’s plight. A procession marched through the streets of Litchfield and underneath the editor’s cell window, and at a later banquet his supporters lifted their glasses to Osborn and “Liberty of the Press— Litchfield Jail its Stronghold.” Among the marchers was young John C. Calhoun, then a student at the famous Litchfield Law School and one of only two of the young attorneys to openly sympathize with the local “Jacobins.”66
Fame did not, however, make the Witness into a successful business. Not surprisingly, the paper’s accounts became “confused” during Osborn’s stay in prison, and “the vast sums of money which have been levied upon the Editor and Printer in the shape of fines, damages, costs, &c. &c. &c” weighed heavily upon it. Despite the wide publicity that had attended the editor’s case, many of the Witness’s Republican subscribers did not pay their bills, and the paper collapsed within a few weeks of his release. Osborn moved on to the Boston Democrat and a year later received a junior officer’s commission in the army from President Jefferson. After the War of 1812, he returned to the political trade, editing a Delaware Republican paper that, unsurprisingly given his experiences in Connecticut, would be sharply critical of postwar efforts to minimize the differences and end the conflict between Republicans and Federalists.67
Those differences should not be underestimated. Though some Republican gentlemen shared their Federalist counterparts’ distaste for newspaper politics and especially for newspaper politicians, even the most hardbitten Jeffersonian jurists realized at some level that seditious libel prosecutions were inconsistent with their stated creed. Thus Republican persecutors of the press often found their resolve or political support cracking. Harry Croswell’s case was dropped when New York’s highest court split along party lines, and the Republican-controlled state legislature followed it immediately with a guilty-minded reform of the state libel laws, endorsing the defense’s position in the trial. The few Republican officeholders who made serious efforts to curb the Federalist press, or became prominently associated with seditious libel doctrines, such as Thomas McKean and Ambrose Spencer, faced strong criticism and electoral challenges from within their own parties.68
The Republican officeholder who tried to employ seditious libel most systematically was also the Republican most quickly repudiated for it. This was Elbridge Gerry, close friend of Sedition Act signer John Adams and Massachusetts governor on the eve of the War of 1812. Gerry ordered his attorney general and solicitor general to conduct a study of the Boston newspapers to document the extent of the libels in them. They found 236 actionable items in the Federalist journals (along with 17 in the Republican press), for which Gerry then sought indictments. Meanwhile, the governor gave and published a special message to the legislature, with the report appended, that proposed tightening the state libel laws. Mere weeks after delivering this message, however, Gerry was turned out of office by the voters, effectively ending his career as scourge of the Federalist press.69
Overall, the most striking aspect of this “darker side” of Republican libertarianism is its utter ineffectiveness. The 236 libels in Gerry’s report produced only ten indictments and three convictions. No Federalist editor other than the grandstanding Hanson served jail time, so far as I have discovered, and the vast majority of Republican-initiated prosecutions failed far short of imposing punishment. Even Hanson went to jail largely for his own protection, and Republican irresolution allowed him to escape at least one major prosecution. In early 1809 Maryland governor Robert Wright ordered Hanson (in his capacity as a militia officer) to be tried for mutiny after the Federal Republican published an item urging the people of Maryland to disregard the president’s recent mobilization of the state militia. Fortunately for Hanson, the Republican judge advocate in the trial was so disturbed by the questionable legality of this maneuver—Hanson had not been on active duty when the piece was published and had disobeyed no military order—that he wrote Governor Wright a lengthy letter demolishing the prosecution’s case and asking for guidance. When Wright did not respond, the judge advocate simply read his letter into record and suspended the trial. “He had no idea of making himself a political prize fighter,” the judge advocate said, despite his grave differences with the man before the court.70
Federalists, however, were hard-fisted with Republican printers when given the opportunity, with high rates of conviction and plenty of Republican printers ruined. They made a habit of giving even their libertarian actions an antilibertarian edge. Joseph Dennie was acquitted before a Federalist judge who based his jury charge on Hamilton’s People v. Croswell arguments but, in the process, judicially diluted the Pennsylvania Constitution’s press clause, which had flatly allowed truth as a defense with no stipulations as to motives or ends.71
The party difference over press freedom showed most clearly in the Republicans’ behavior during the War of 1812. The Madison administration allowed Federalist newspapers to publish freely even when they were actively subverting the war effort, making this one of the very few American conflicts in which severe curbs on press freedom were not imposed. The defeated Elbridge Gerry became something of a hero to other Republican leaders for his crusade in Massachusetts, but they ignored his call for Federalist editors to be arrested en masse. (In some respects, Madison’s greatest wartime service to press freedom may have been choosing Gerry as his second vice president, in which place his influence was effectively neutralized.) Despite the mob attacks against Hanson and a handful of other Federalist editors, then, it would be an understatement to say that their antiwar message had little trouble getting out.72
While Federalist control of the independent judiciary was probably the most important cause of the lopsided results of the post-1800 libel cases, another factor was the new Hamiltonian libel doctrine itself, which lent itself much more readily to use against Republicans than Federalists. Coping with a Federalist press that constantly attacked Jefferson’s private moral character and religious views, Republican judges and attorneys argued that libels could only occur when criticism did not apply to public measures and official conduct. If that test was met, criticism should be largely immune to prosecution; as the Republican attorney general in Commonwealth v. Clap put it, the people were the only “proper and constitutional judges” of public men and measures, and the electoral process was the only remedy. This standard would have well suited most Republican editors, who frequently denounced religious intolerance and rarely dealt with private morality. The Federalist standard that won out placed much more of a burden on the good intentions of the publisher, and this allowed even the most prurient comments and imaginative speculations to be justified in the name of defending the community’s faith and morals. Republican officials thus had relatively few effective legal weapons, leading to stretches like Hanson’s failed court-martial.
Hence it was far from coincidental that in the year before the court-martial, Hanson had celebrated two different convictions inflicted on the most radical local Republican editor, Baptis Irvine of the Baltimore Whig. In March 1808 Hanson the lawyer helped put Irvine in jail for a month, having been held in contempt of court for criticizing an assault conviction against one of his journeymen. Then, in July, Irvine was sentenced to sixty days imprisonment, and fined $200, for accusing City Register Edward Coale of corruption. In response to this second verdict, the Federal Republican lauded the inequities of existing press freedom doctrines. “Do these noisy ignoramuses know that federal printers deal not in libels?” Hanson asked. “Tell us of an instance of a federal printer being convicted in a court of justice, if you can, and we’ll answer you three to one.”73
It was not until two decades later, when Federalism had disappeared and both party politics and Republican-style newspaper politics had achieved full legitimacy and ascendancy, that the use of criminal libel prosecutions to control political editors truly became insignificant. Even then, there were many descendants of old Federalists, such as James Feni-more Cooper and a group of Connecticut Congregationalists irritated by Jacksonian editor P. T. Barnum, who kept on trying. Federalist culture, it seems, never really came to terms with newspaper politics at all.74