The Press War Behind the First Amendment

This is the next installment of Courage and Consequence — a series about relatively unknown individuals in history who made courageous decisions under extraordinary pressure, and had to live with what followed. William Duane needs to be remembered.

———

On May 15, 1799, a troop of Philadelphia cavalry officers came to the home of William Duane.

They had come back from western Pennsylvania, where they had been deployed to suppress a tax rebellion. The Aurora — the newspaper Duane edited — had printed letters from inside their own ranks describing the abuses they had committed. The officers wanted the name of the correspondent. Duane would not give it. They dragged him into the street and beat him with horsewhips until he was unconscious.

Within the week, the Aurora was back on press.

———

THE PERSON

Duane was born on Lake Champlain in 1760, the son of Irish immigrants. His father died young. His mother took him back to Ireland, where he learned the printing trade in the country shops of County Clare. He went to London and then to Calcutta, where he ran two newspapers and was deported by the East India Company for publishing things the Governor General did not want published. He edited The Telegraph in London until the government moved to shut it down. In 1796, with arrests imminent, he sailed for America.

He was thirty-six, Irish, Catholic by birth, a deportee once already. He had a wife and children to feed. He went to work for Benjamin Franklin Bache at the Aurora, the leading opposition paper in the new republic. When Bache died of yellow fever in September 1798 — awaiting trial under the Sedition Act — Duane took the chair. Two years later he married Bache’s widow, Margaret.

He was not a gentleman pamphleteer. He was a working printer who had been chased across four continents for what he put on a page.

THE CONTEXT

The Sedition Act became law on July 14, 1798. It made it a federal crime to print “false, scandalous, and malicious” writing against the President or Congress. Truth was a defense, in theory. In practice, the juries were stacked, the judges were Federalists, and every indictment filed under the Act was filed against a Democratic-Republican editor. Not one Federalist printer was charged.

The Federalists believed the republic could not survive a free press that opposed them. John Adams signed the Act. Alexander Hamilton urged its enforcement. Secretary of State Timothy Pickering read opposition papers each morning and marked passages for prosecution. He complained to Adams in July 1799 of “an uninterrupted stream of slander” in the Aurora.

Bache had been indicted and was dead. His paper was still printing. Duane was the man running it now, and the Federalists meant to stop him.

They tried four ways.

THE DECISION

In February 1799, Duane and a group of United Irish friends stood outside St. Mary’s Church in Philadelphia, posting petitions against the Alien and Sedition Acts. A mob attacked them. The government charged Duane with seditious riot. A jury acquitted him in under an hour.

In May, the cavalry officers came to his house. He was beaten in his own yard for refusing to name the correspondent from inside the Fries expedition. The state indicted him for riot and assault — the victim, charged with the crime.

In July, he wrote that the British government had used bribery to shape Adams’s foreign policy. Federal marshals arrested him within a week. On October 15, 1799, a federal grand jury returned a True Bill of seditious libel against him. The original indictment survives in the National Archives. His lawyers were prepared to produce a letter in Adams’s own hand, written years earlier to Tench Coxe, saying the same thing Duane had written. The trial was postponed. Duane went back to editing the Aurora.

Then, in February 1800, three Republican senators slipped him a copy of a bill.

The Ross Bill — named for its sponsor, Federalist Senator James Ross of Pennsylvania — would have created a closed-door grand committee, chaired by the Chief Justice of the United States, with the power to disqualify presidential electors. The committee’s meetings would be secret. Its decisions, final. In a presidential election year in which Jefferson was the challenger and Adams the incumbent, the bill was an instrument to choose the next president without the inconvenience of the vote.

Duane printed it. Every line. He told his readers what it would do.

The Senate convened a committee on privileges. On March 18, it found him guilty of publishing “false, defamatory, scandalous, and malicious” assertions about the Senate. He was ordered to the bar to make his defense. He appeared once, asked for counsel, was given counsel on terms so restrictive that counsel refused to serve. He wrote the Senate a letter. He would not come back. He could not, he said, receive a fair trial from men who had already voted him guilty.

He went into hiding in Philadelphia.

The Vice President of the United States — Thomas Jefferson, presiding as President of the Senate — signed the warrant for his arrest. The sergeant-at-arms could not find him. For weeks, while the Senate searched the city, Duane wrote the Aurora from safe houses and back rooms, and the paper came out six days a week.

On May 14, 1800, Congress adjourned. The arrest warrant lapsed. The Senate’s final act was to request that President Adams instruct the Attorney General to prosecute Duane under the Sedition Act for the same publications. Adams did. A second federal indictment followed.

The trial was set for October 1800. Duane was still editing the Aurora.

THE AFTERMATH

In November, the voters turned Adams out of office. Jefferson took the presidency in March 1801. One of his first acts was to pardon the men still serving sentences under the Sedition Act. He asked Duane for a list of the prosecutions pending against him and directed the Attorney General to end them where he could.

The federal case went away. The Senate case, which Madison was unwilling to quash outright, dragged on until October 1801, when a Philadelphia grand jury — ordinary citizens, not Federalist appointees — refused to indict. Duane was a free man, in every proceeding, for the first time in three years.

He was not rewarded. Jefferson did not give him the printing patronage he had expected. Albert Gallatin’s faction in Pennsylvania outmaneuvered him for influence. The Aurora moved to Washington, then back to Philadelphia. It never again carried the weight it had in 1800. Duane himself would serve as a lieutenant colonel in the War of 1812, travel by mule through South America, and die in Philadelphia in 1835, in modest circumstances, at seventy-five.

Adams, after he left the presidency, named Duane as one of the three or four men most responsible for his defeat. Jefferson, years later, wrote that the Aurora had been “our comfort in the gloomiest days” — the rallying point of the Republican cause when the Republican cause had no other.

The Sedition Act expired on March 3, 1801, the last day of Adams’s presidency. It was never renewed. No equivalent federal statute has been passed in the two centuries since.

THE MEANING

The First Amendment existed on paper in 1798. It became law in practice because men like Duane refused to stop printing when the government came for them. Bache died first. Matthew Lyon went to prison. Thomas Cooper went to prison. James Callender went to prison. Most of those names are gone now.

What Duane did was simpler and harder. He was beaten at his own door and went back to work. He was indicted three times and kept publishing. The Senate of the United States issued a warrant for his arrest and he wrote his next editorial that week from a hiding place. He did not win by being right. He won by not stopping.

Courts settle questions in the long run. In the short run, rights are held by whoever is willing to bear the cost of exercising them.

Duane bore it.

When the Federalists were finished with him, the Sedition Act was finished. When Jefferson was sworn in, the press had survived its first test.

The rest of the country’s history of a free press runs through that door.

———

Sources: U.S. Senate Historical Office, “Senate Holds Editor in Contempt” (senate.gov); National Archives DocsTeach, “True Bill of Seditious Libel Brought Against William Duane,” October 15, 1799; The Alien and Sedition Acts: Primary Documents in American History (Library of Congress); Founders Online (National Archives), William Duane to Thomas Jefferson, 24 March 1800; Jeffrey L. Pasley, The Tyranny of Printers: Newspaper Politics in the Early American Republic (University of Virginia Press, 2001); James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Cornell University Press, 1956); Bruce A. Ragsdale, The Sedition Act Trials (Federal Judicial Center).

———

Next in this series: Benjamin Franklin Bache — He Didn’t Live to Face Trial, but He Forced the Question.

———

Charles C. Jett is an author, executive coach, and civic educator. A graduate of the U.S. Naval Academy (1964) and Harvard Business School, he publishes at criticalskillsblog.com and civicsage.com.