Repressive Jurisprudence in the Early American Republic: The First Amendment and the Legacy of English Law

Repressive Jurisprudence in the Early American Republic: The First Amendment and the Legacy of English Law

Phillip I. Blumberg

Language: English

Pages: 426

ISBN: 1107613035

Format: PDF / Kindle (mobi) / ePub


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.

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other areas involving the implementation of federal authority. They had uniformly upheld the availability of federal jurisdiction over other commonlaw crimes in eight other cases. The legal problem was whether criminal libel could be distinguished from those other cases. Starting with the unreported 1790 decision in United States v. Hopkins (murder at sea),67 the 1792 decision in United States v. Smith (counterfeiting of bills of the Bank of the United States,68 and the 1793 decision in United

ed. 1866) (“This case settled nothing as the Court were [sic] divided”). See Ch. 4, notes 5–31, 217–20. The Cabell presentment following Justice Iredell’s charge upholding jurisdiction occurred a year before Worrall, but Chase chose to ignore it. The other federal prosecutions for common-law criminal libel occurred a few weeks after Worrall. Ambivalence of the Jeffersonians 175 of the official acts, judicial decisions, formal opinions of the various Attorneys General, and opinions of other

the Mayor, Aldermen, and Citizens of Philadelphia (Apr. 1798), 9 John Adams, Works (C. F. Adams), note 43, at 182. Letters, John Adams to Timothy Pickering (Aug. 1 and Aug. 17, 1799), 9 John Adams, Works (C. F. Adams), note 43, at 5 and 13. See J. M. Smith, note 19, at 31. He also succumbed to xenophobic comments about immigrants. See Letter, John Adams to Abigail Adams (Jan. 9, 1797) (We have been opening our Arms wide to all Forreigners [sic] and placing them on a footing with Natives; and now

the press, such as government licensing. The English common law had advanced so far and no further. The opponents of the Act challenged its constitutionality in two important respects. A major source of opposition was the opposition of the “states’ rights” Congressmen to the expansion of federal power. Leading opponents, such as Nathaniel Macon of North Carolina, soon to become Speaker of 6 With the solitary exception of Justice Chase, all the Supreme Court Justices of the time who addressed the

paper on May 2, 1799. A week later, he died with his trial date still a few weeks away.143 For the moment at least, the Federalists had succeeded in silencing the Chronicle and the Thomas Adams family as critics of the administration. The Adams litigation was another major success in the campaign of the Federalists to silence the Jeffersonian press. The Federalist campaign launched in the summer of 1798 – first on the eve of the adoption of the Act and then on the heels of its enactment – had

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