HISTORY
That Time the Senate Issued An Arrest Warrant For A Reporter
In 1800, Congress ordered the Sergeant at Arms to take into custody William Duane, the editor-in-chief of The Aurora. This is that story.
The election of 1800 was months away. John Adams, and his Federalists, were throwing Thomas Jefferson’s Democratic-Republicans into jail. Pending in Congress was a self-serving bill to resolve a disputed presidential election in favor of Adams. William Duane, the editor of Democratic-Republican The Aurora, obtained a copy of the controversial bill and printed it.
Federalists quickly demanded that Duane come to the Senate, explain how he got a copy of the bill, and defend his related libels on government. When Duane failed to show up at his “trial” before the Senate, it issued an arrest warrant for him: the first and only time Congress tried to arrest a reporter.
Who cares? Well, this story is important because of what it tells us about the freedom of the press around the Founding. And we have precious few historical artifacts that do so. Duane’s brush with Congress is a rare data point that tells us something about how the Founders thought about freedom of the press outside the context of the Sedition Act.
Duane’s story also is the rare one that informs our understanding about protections for the freedom of the press in the newsgathering context. While the debate is ultimately over whether Duane should be punished for what he wrote, it also is a debate over what protections Duane had not to reveal his sources who gave him the bill.
These early debates about press freedom also matter because they affect how the Supreme Court understands what the First Amendment means today. The Sedition Act debates, the Court said in 1964, “first crystallized a national awareness of the central meaning of the First Amendment.” And, today, conservative judges have made the history of the law more relevant than ever.
Yet, Duane’s fight over freedom of the press has received surprisingly little attention. Scholars write about it here and there, but the story has never been a defining one in the First Amendment cannon. Here, that story is told in full in hopes that from it we can better understand what the Founders believed about freedom of the press and to remember the fight and the plight of Duane.
William Duane
William Duane was an incorrigible partisan printer. Duane, a man whose precise birthplace is unknown (Ireland, Newfoundland, or New York, depending), was “neither truly American nor Irish, English nor Anglo-Indian.” Nor was his work as a printer. He was, one scholar said, “the only eighteenth-century radical to have a press career spanning the nations of Ireland, England, India, and America.”
Duane spent his early years in Ireland and London working as a newspaper man. He then moved to Calcutta in 1789, where he started two newspapers of his own. In them, he maligned the British, the French, and the East India Company. He was, thus, “forcibly deported” to London as a “dangerous incendiary.”
After a brief stint as an editor in London, “facing grave risks during Britain’s period of intense suppression of opposition press,” he went to America, where he arrived on July 4, 1796. He eventually settled in Philadelphia, a city that was, as one scholar explained, the “closest in his imagining to the place where a ‘Citizen of the World’ could belong.”
Quickly, Duane became involved with The Aurora. In 1796, it printed his pseudonymous open letter “castigat[ing] Washington’s presidency, his Farewell Address, and most scandalously, Washington himself.” After Duane translated some French pamphlets championing the French Republic for the Aurora (a no-no in Federalist America), Benjamin Franklin Bache, the paper’s editor, hired him. After Bache died, Duane married his wife and became the editor of his paper.
It was in this role that Duane became one of the most influential printers in the young country. He was “the second most powerful Republican in the City.” He was the “leading Jeffersonian journalist.” He “helped to usher in the Jeffersonian presidency.” Nor did Jefferson forget; as he’d write years later, The Aurora “has unquestionably rendered incalculable services to republicanism thro’ all it’s struggles with the federalists, and has been the rallying point for the orthodox of the whole Union.”
Although Duane found refuge in America, he was still “continually harassed — indicted three times for seditious libel, threatened with deportation, dragged through the streets by rioters, beaten and whipped by a mob of officers for refusing to reveal a source.” This plight, one researcher concluded, “established him as almost a folk hero in the minds of ordinary Republicans and that power over public opinion made him a force to be reckoned with.”
The Article
So it wasn’t shocking to Duane that, by 1800, a Congress full of Federalists would try to intimidate him — hoping to shut his paper down and give Adams a chance at a second term. Those Federalists found their opportunity when Duane published an article criticizing a bill meant to address disputed presidential elections. The proposed bill, Duane said, was purely political and anti-democratic. It was nothing more than a calculated exercise “to influence and affect the approaching presidential election.” Its proponents were “opponents of independence.”
Worse, the bill, Duane wrote, had been the subject of a “secret consultation[]” in the Senate Chamber. Duane then reported that the bill was referred to committee for drafting, but it was drafted without the input of one of the members, Senator Charles Pinckney of South Carolina, a Democratic-Republican. The bill, Duane told his readers (erroneously, as it would turn out), nevertheless passed the Senate.
Federalists Establish the Committee of Privileges
Shortly after publication, on February 26, Senator Jonathan Dayton, a Federalist who would later be arrested for treason, moved for the Senate to appoint a standing Committee on Privileges — which one scholar described as a “novel expedient” to quickly punish Duane.
The Committee was, as the parliamentary committees before it in the United Kingdom, intended to enforce the “privileges” of the Senate. At common law, this included instituting investigations that drew the dignity of a body into disrepute. In other words, a committee that prosecute political critics of the Senate.
Stevens Thomson Mason, a Democratic-Republican senator for Virginia, said that such a committee “presented a new idea to him” and that “he did not comprehend what was its object or use.” The government had existed for more than a decade without ever having the need for such a committee. It sounded to him like it was an “inquisitorial court” and a “suspicious measure.”
Dayton responded that “in all public bodies he had sat” such committees existed. Nor did he “know that there was any particularly case in view at present,” he said. Instead, he was concerned only with the “general fitness of the measure.”
Charles Pinckney, a Federalist turned Democratic-Republican from South Carolina, also was opposed. Citing protections in the Constitution and Bill of Rights for jury trials, he did not think that Senate could prosecute cases against implicating it: “He had heard of the undefined privileges of the English parliament, but he hoped such was not pretended to be introduced here.”
Despite the protests, the motion to establish the Committee was passed by a 22–7 party-line vote. The Senate then appointed five members: Dayton, himself, Uriah Tracy, Henry Latimer, Nathaniel Chipman, and John Brown. All were Federalists except for Brown.
Federalists Make a Motion to Investigate Duane
Despite Dayton saying that he did not think any case was contemplated in establishing the Committee, as soon as it was established, Tracy rose and made a motion directing the Committee to inquire who the editor of The Aurora was, “what authority” that editor had to print the bill, and “what authority” the editor had to say that Pinckney was frozen out of the drafting process. The motion also directed the Committee “generally to inquire the origin of sundry assertions in the same paper, respecting the Senate of the United States, and the members thereof.”
Writing in The Aurora days later, Duane publicized the creation of the Committee and the charges made against him. (While The Aurora was present for the passage of the motion creating the Committee, it left thereafter and only later heard about Tracy’s motion.) He minced no words: “A free press is an alarming eye-sore to men whose actions cannot bear the test of enquiry nor admit of defense by the same medium.”
Pinckney’s Free Press Protest
The Senate did not take up debate over the bill until March 5. As a stalling tactic, Senator William Cocke, a nomadic Democratic-Republican who served in the governments of Virginia, North Carolina, Tennessee, and Mississippi, suggested that the Senate delay consideration of the bill until after the upcoming election.
Cocke said he “would not suffer a measure of this kind to pass through the Senate, while he had the honor of a seat in that body.” He “believed that the more the subject was agitated the more would be the clamor against the Senate, and in the end they would be forced to abandon the measure for want of ability to carry it through.”
Cocke then handed it over to Pinckney — a delegate from South Carolina to the Congress of the Confederation. Pinckney felt “a pride in saying that in no country has the press ever been as free as in United America.” Referencing the Sedition Act, he admitted that the freedom had recently been “clouded or interrupted,” but he hoped that “in a few months all its shackles will be removed, and that the emotions they have occasioned in the public mind will for ever forbid its being thus fettered again.”
Pinckney said he had taken a special interest in freedom of the press: “I well know that where the press is not free, liberty is but a name, and Government a mockery.” He then suggested what he believed to be “the true standard” of freedom of the press:
That the printing press shall be free to every person who undertakes to examine the proceedings of Legislature, or any branch of the Government, and no law shall ever be made to restrain the right thereof; that the free communication of thoughts and opinions is one of the most invaluable rights of man; and every citizen may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty.
He continued:
That in prosecutions for the publication of papers investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the Jury shall have a right to determine the law, and the fact.
While this is far from the liberal understanding of freedom of the press that prevails today, it was one back then. At common law, truth was not a defense to libel. Rather, the greater the truth, the greater the libel. Moreover, that a jury had the right to determine the law and the fact was a liberalization of the common law. At common law, the jury’s province was only to determine whether a libel was published (a fact); and not to decide for itself whether the thing published was a libel, published with fault, that caused damage (the law).
Pinckney then made an observation that has escaped scholars and lawyers alike: “Here the right to investigate the conduct of the Legislature, and of official men, is not only recognized and established, but the constitution seems to require it as a duty, from the citizens.” The Constitution, after all, said to its citizens “these are men periodically delegated by you to manage your public concerns — to you, and you alone, they are accountable for their conduct.”
And, here’s the important bit: “nor can you know whether [their conduct] is meritorious, or otherwise, but by having the right to examine into it, and by freely and frequently exercising that right.” He added, “And would it not be the strangest thing in the world, when the constitution not only establishes the right, but calls upon the citizens to exercise it with alertness, and by non mean to neglect it, that they should happen to displease a branch of the Legislature, whose conduct they have censured, that they should be delivered immediately into the power of this branch, to be dealt with as they please.”
Pinckney wasn’t yet done. “Here, sir, let it be asked, why should a Government that means well, or is confident in its uprightness and ability, ever fear the press?” To a good government, the press was “so excellent a mode of diffusing a knowledge of their acts.” “Public bodies are public property; and so indeed are public men,” Pinckney said. “Men who engage in public life, or are the members of legislative bodies, must expect to be exposed to anonymous, and sometimes avowed attacks, on their principles and opinions.”
On the other hand, it was “only in States where the happiness of the people is not the end of Government . . . that the press is not agreeable” to public men. Thus, Pinckney explained, “in despotisms, [the press] is generally odious to the sovereign, and strictly limited.” Pinckney then explained, that he “did not expect to have been obliged ever to have introduced on this floor, Frederic [of Prussia] or the Empress [of Russia], as examples on the subject of the press,” but there he found himself:
It is remarked of Frederic of Prussia, that few princes were more libeled by their subjects; but that in no country were libels more disregarded: that few, if any instances ever occurred of his endeavoring to discover the authors, or to crush, by punishment, the spirit of inquiry which literary pursuits had diffused among his subjects.”
As another example:
A more remarkable instance is, that of the Empress of Russia; in giving her directions respecting libels, she says, “great care ought to be taken how we extend this crime; representing to ourselves the danger of debasing the human mind by restraint and oppression, which can produce nothing but ignorance, and must cramp and depress the rising efforts of genius.”
Pinckney didn’t stop there. “Among the ancients,” he said, “we find Tiberius, and Trajan, and Titus, allowing absolute liberty of speech and writing suppressing the laws against seditious words and writings, and punishing informers.” And, before them, the republics of Athens and Rome taught that “freedom of speech and writing are essential to the liberty and greatness of a people.”
Turning back to the shores of the young country, Pinckney said, “How applicable, sir, are these instances, and how incumbent on us is it, if we mean to keep this country a Republic, to cherish the freedom of the press, to remember that without it seldom any thing great or noble can be produced that to shackle it is to chain the mind, and stifle the seeds of everything that is generous and amiable.”
The Senate, Pinckney observed, had been held in secret until “the State Legislatures” insisted on the “doors of the Senate being thrown open.” And opening the doors was “done unquestionably with the intent that minutes of your debates should be taken, and all your proceedings subject to the inspection of such of our citizens as choose to attend.”
For those who lived to far to attend, “the great object certainly must have been to have notes taken of the debates, and printed in the gazettes; that through that channel information may be transmitted to every part of the Union, and thus the States become, in the best manner they are able, judges of the talents, as well as conduct and opinions of their members.”
What did this mean for Duane? Well, “if a printer is to be seized, and dragged to your bar, and perhaps imprisoned for a mistake, that a law has passed when it is only its second reading, or that a member of a committee was not summoned to attend the meeting of the committee, when he was, and did attend, or for any mistake of this kind, I ask you what printer or reporter will take your debates?”
Pinckney closed by moving the suggestion from Cocke that the consideration of the bill be tabled indefinitely.
Others Protest the Motion
When Pinckney finished, Cocke said that “he wished to save the reputation of this body, which he thought was placed in jeopardy” by Tracy’s motion. For his part, Cocke focused on the imprudence of seeking information relating to the source who gave a copy of the bill to the Aurora.
As he put it, “What kind of inquiry is this? How he procured the sight of a bill while it was pending in the Senate?” “Why, is there any crime in printing a minute of our transactions?” he asked. “Two hundred copies or more [of the bills] are circulated without any injunction of secrecy; they are sent off into every State of the Union; and you are going to make inquiry how the editor of the Aurora got to see one of them?”
Cocke had just begun. “Will you punish every man who shall repeat, print, or publish what is made public on this floor?” “Suppose the editor of The Aurora declines to inform your committee of the mode through which he obtains his information?” “Will you punish him with contempt?” he asked. In a rhetorical flourish that matched Pinckney’s delivery, he demanded of his colleagues:
But suppose you possessed of the physical power necessary to procure the information you require by an application of torture; while you are straining his muscles and dislocating his joints, what becomes of the grand palladium of American freedom? Where is the liberty of the press, which is secured to the citizens of the Union against Federal usurpation? The constitution declares that you shall not infringe upon the liberty of the press.
Stevens Thomson Mason, who would write James Madison days later to predict that the resolution against Duane would pass, rose again in opposition. (It’s unclear who leaked the bill and incorrect information to Duane, but Mason had leaked the Jay Treaty to Duane’s predecessor at The Aurora.) He said the measure risked “subverting the old acknowledged privileges of the liberty of the press.”
Should the senators continue down this path, “touching the liberty of the press, which they may discover in the end to be secured against the invasion, they will be compelled to retrace every step they are now taking, which will neither redound to their honor nor discernment.” Indeed, Mason said, the Senate had already been down this path with the Sedition Act, so it should not be surprising that “the people of the United States would watch with anxious regard every movement of this body” that “session after session” it attempted to “fetter the freedom of the press.”
Partisan Politics
And, of course, there were the double standards. Days before The Aurora published its story, the United States Gazette, a Federalist mouthpiece, published what Pinckney called “more violent abuse against the Senate.” It was, Pinckney said, “astonishing [that] the honorable mover from Connecticut who seems to feel so much for the dignity and the character of the Senate on this occasion, did not, on that of the abuse which was heaped on it [previously,] have similar feelings.”
In other words, Pinckney believed that Tracey cared only about The Aurora because it was a Democratic-Republican publication and he was a Federalist. “That,” he said, “as he consented to suffer those animadversions to pass, it would certainly be doing no great violence to his feelings to deal with the present in the same way: “that perhaps the best mode to lessen the importance of a paper was, not to treat its observations with either too much notice or severity.”
Senator Marshall agreed. As he put it, “If gentlemen meant to defend the honor of this body, they should avoid anything like partiality, and direct their inquiry to all breaches of privilege, by publications in newspapers, let their publishers be whom the might.” Marshall agreed that the United States Gazette had throne “slander and calumny” on Democratic-Republican senators that were “more vile and flagrant” than what the Aurora had done.
Of course, these senators did not intend to start rounding up Federalist printers. Instead, the whole suggestion of making these attacks on the press bipartisan was simply to force Federalists to admit, by vote, that this was all a political ploy. Some things never change; the Federalists voted down the measure. The inquiry of The Aurora was going to be wholly a politically motivated one. The Federalists, with control of the Senate, were not gong to condone intrusions into the Federalist press.
The Federalists Respond
At one point, as his fellow senators rose to oppose his attempt to punish the editor of the Aurora and attempt to find out his source, Tracy responded. Perhaps feeling the force of their arguments, he asked the senators to return to the words of the resolution. The Committee, he said, was only to inquire as to the identify of the editor of The Aurora, because he was not “publicly known.”
The opponents, he argued, had said that it was no crime to publish information about Senate proceedings, “but is it nothing to publish untruths respecting the official conduct of the members of this body? Is it no crime to publish a bill while before this House? But are printers at liberty to tell lies about our transactions?”
Tracy then argued that “asking the editor how he came to print this falsehood, does not go to examine into the private mode by which conveyance of intelligence is made to that office.” He continued, “But suppose we have no power over this editor, because the press is free; suppose we cannot punish him for his slander, calumny, and falsehood, perhaps the inquiry may lead us to discover some persons who we can punish.” Perhaps, Tracy suggested, it was one of their own members who leaked the inaccurate information.
Turning to the implications of conduct, Tracy asserted that the press shouldn’t be protected where the result of their conduct was to misinform the public about its government: “If by liberty of the press is meant the publication of truth and just political information, it was proper to be supported; but he was desirous of maintaining, along with the liberty of the press, the liberty of the citizens, and the security of the Government; he was not for sacrificing these latter objects to the licentiousness of the press.”
On the motion for postponement, the vote split nine in favor, and nineteen against, most of whom were Federalists.
The Motion Passes, Duane Responds
On March 8, the Senate adopted the motion to instruct the Committee of Privileges to “consider and report what measures it will be proper for the Senate to adopt, in relation to a publication in ” The Aurora. That same day Thomas Jefferson wrote to his friend, John Wayles Eppes, that the Senate was preoccupied with “the Editor of the Aurora.” There was “little doubt,” he said, that the Federalists would succeed given their numbers in the Senate. He also wrote to James Madison, “We have this day also decided in Senate on the motion for overhauling the editor of the Aurora.” According to Jefferson, “It was carried as usual by about 2. to 1.”
Responding on March 13, Duane wrote in The Aurora, “We consider the security of the press of at least equal moment with the privileges, real or assumed, of the Senate, and hold ourselves bound to maintain that freedom established by the Constitution, and in the spirit of the Constitution, against every effort of an illegal or unconstitutional nature, which may be made to destroy it.”
He added, “We have waited in silence, and watch with temper, the proceedings in the Senate, because we trusted that reflection, and the due sense of the important consequences which any attempt of an unconstitutional nature would have on the public mind, would prevail over the heated instigations of passion, and the arbitrary dispositions of few individuals.”
The Committee Issues Its Report
On March 14, the newly constituted Committee of Privileges issued its report. Duane reprinted the report, in its entirety, in The Aurora — likely happy that it gave him a second chance to reprint the February article.
According to the report, the publication contained “pretended information . . . which are false, defamatory, scandalous and malicious, tending to defame the Senate of the United States.” Naming, for the first time, Duane as the editor, it urged that he “be . . . ordered to attend at the bar of this house . . . at which time he will have opportunity to make any proper defence for his conduct.”
Duane responded a few days later, declaring that he would now “commence the debates on the extraordinary and unconstitutional measures.” As he previously warned, the “question shall be discussed in this paper with all freedom that the constitution secures to the press, and such facts shall be brought forward as the people or the private instigators of this imperious and daring stretch of arbitrary power, are not aware of.” As he put it in a subsequent edition, in the first resolution “they condemn the Editor” and in the second “propose to give him a trial!!!”
The Senate Passes the Resolutions, Duane Responds
The Senate split the vote on the resolutions. First, it voted on whether Duane’s article was false, defamatory, and scandalous. There was no recorded debate on the first resolution, which quickly passed on March 18 with 20 votes for it, and eight against. Two days later, on March 20, the Senate passed the second resolution. In it, they ordered Duane to appear before the body four days later on March 24 to defend himself.
The next day, Duane again reported on the now-imminent prosecution he was facing by the Senate. While he said he felt an obligation to obey all “legal acts” of the government, he added that he “owes a duty superior to that sense of respect and deference; he owes a duty to the constitution itself, to the public rights involved in him and his personal rights and honor.” From those duties, he wrote, “no power on earth shall make him swerve.” “No terror — no force — no menace — no fear shall make him betray by any act of his, those rights which are involved in these measures of the Senate.”
He then told his readers that he would not “submit to any power that is not legal,” and that meant he would not answer the Senate in a case implicating “liberty of speech and the press,” without a trial by jury, the right of confrontation, and the right against self-incrimination
The Senate & Duane Prepare for a Trial
While Duane was considering his next steps, the Senate was preparing for a trial. On March 21, the Senate instructed the Committee of Privileges to lay before it “a form of proceedings in the case of William Duane.”
The next day, Senator Dayton presented the plan. It ordered Jefferson, as the President of the Senate, to inform Duane that he stood “charged by the Senate . . . of having published . . . false, scandalous, defamatory, and malicious assertions, and pretended information, respecting the said Senate . . ., tending to defame the Senate . . . and to bring them into contempt and disrepute.”
Next, Jefferson was instructed to read the resolutions passed by the Senate and ask Duane if he had anything to say for himself. If Duane did not present a defense, then the Sergeant at Arms was supposed to take him from the chamber while the Senate debated his guilt. If Duane did present a defense, then the trial would continue until all testimony had been taken. Duane would then be informed of the verdict after the Senate deliberated.
Duane was also preparing for trial. He was served on March 21 with the summons to appear before the Senate. Duane quickly contacted Alexander Dallas and Thomas Cooper, Democratic-Republican lawyers with experience defending political types.
They met on March 23 to decide how to proceed. That night, Cooper would write to Jefferson. He attached a letter, written by Duane and dated March 24 and addressed to Jefferson, in his official capacity. Duane’s letter asked, “That I may be heard by Counsel, and have process awarded to compel the attendance of witnesses in my behalf.”
Cooper asked that the letter be read on the morning of the trial. He added that Duane would appear informally to be heard on the motion for counsel. He then told Jefferson that if the request was denied, Duane “shall not obey the call” of the Senate. If the request was granted, Cooper asked for a day in the distant future to be set for trial.
At an eventual trial, Cooper continued, he would “state in the outset, that they mean to object to the Jurisdiction of the Senate in the present Case.” If the Senate did not allow them to argue a lack of jurisdiction, Cooper said he and Dallas would “decline entering into any farther or other defence, as they conceive their Client fully entitled to be heard on this Objection.”
Not only would Cooper and Dallas withdraw, Copper said they would also advise their client to “absent” himself “and keep out of the way of the Serjeant at Arms,” if Duane wasn’t allowed to argue his defense as he saw fit. If the Sergeant at Arms was able to track him down, then Cooper said Duane would “fight the question by application for an habeas Corpus.”
Duane Appears Before the Senate
As promised, Duane showed up on March 24. As Cooper had said he would, Duane requested that he be allowed counsel to defend him in the matter. At the start of the proceedings, Jefferson read the charge against Duane; he then read Duane’s short letter requesting counsel, and gave Duane a moment to elaborated.
Duane told the Senate, “Unpractised in legal forms and dubious in this case — but willing to do every thing that is consistent with propriety, I must solicit the consideration of the Senate. I am dubious of the jurisdiction of the Senate, and the novelty of this case renders it more incumbent on me to be cautious how I commit the right of others by any error arising from ignorance in me.”
He then assured the Senators: “I am willing to answer all questions that may be properly put to me — I am not so weak as to persist in error if I have committed any.” But, Duane said, “I know not that the Senate can according to the constitution take cognizance of it — in this I may be mistaken, but I have had advice.”
On other points, which he did not specify, he added, “I believe I can prove by evidence the facts; but I am doubtful of the regularity of the present form; I will cheerfully go as far in answering every question as the nature of the case requires, and my honor permits; but . . . I conceive it prudent to advise with men conversant in legal forms, who may guard me against any deficiency of mine in legal knowledge.”
For nearly four hours, the Senate debated Duane’s request for counsel. Initially, a motion, by an unknown Democratic-Republican senator was made: “That William Duane be permitted to be heard by counsel, he having appeared, agreeably to the order of the Senate, and requested that he might be heard by counsel.”
A Federalist, however, made a motion to strike out everything after “Duane” and add instead that Duane be permitted counsel only while “personally attending at the bar of the Senate” and the counsel could only “be heard in denial of any facts charged” or “in excuse and extenuation of his offence.” In other words, counsel would not be able to argue the jurisdictional point.
The Democratic-Republicans tried, again, to amend the motion to allow Duane’s counsel more latitude in their arguments. But, again, the Federalists defeated the motion. And, eventually, the Federalists’ half-measure that both gave Duane the right to counsel but also tied counsels’ hands behind their backs was passed. And, with that, the Senate adjourned for the day.
Duane Goes Into Hiding
On March 25, Duane wrote to Cooper and Dallas, enclosing the resolution that the Senate had just passed. In the note attached to the resolution, Duane explained that he attended to the bar of the Senate the day before “not from a conviction of their possessing constitutional authority to order” his attendance, but “from a sense of delicacy towards this branch of the legislature, which would not permit me to carry an appearance of disrespect towards them, even when they were acting under error.”
He then requested that both Cooper and Dallas appear with him at the Senate the next day for the trial. He added, foreshadowing what he, Cooper, and Dallas had no doubt already decided would be the answer, that he “feared the resolution . . . will prevent me from deriving all the benefit from your assistance which I had a right to expect from your acknowledged abilities, and the justice of my cause.”
As Duane expected, both Cooper and Dallas declined to represent him because of the restrictions the Senate placed on that defense. They could only, they said, defend him if they could do so on their own terms. Yet, the resolution prevented them from doing so by prohibiting them from challenging either the jurisdiction of the Senate or proving the truth of the publication.
Cooper was pointed about it, writing more for the papers than his client: “I have every inclination to render service to you and to your cause, but I will not degrade myself by submitting to appear before the Senate with their gag in my mouth.” As Cooper explained, “I heard sufficient of the debate yesterday to understand (before I saw your letter) that the intent and meaning of the resolution, is to preclude all argument on the jurisdiction of the Senate, and . . . all proof that might be offered in justification of the assertions complained of.”
Nor, did Cooper think that Duane would be able to retain counsel to represent him on the terms adopted by the Senate. “I cannot think,” Cooper wrote, “you will be able to procure any professional assistance on such strange and unusual terms; nor can I see of what use any professional assistance could be to you, under the restrictions which the Senate have thought fit to impose;
The same day Cooper sent his letter to Duane, Dallas responded too. Dallas wrote that it was his “general rule to render professional services whenever they are required,” but that he could not in this case. The Senate, he wrote, had charged Duane will libel, given him no chance to be heard on the substance of the charge, thus deciding already that Duane was the editor and that the publication was “false” and “malicious.”
As Cooper had, Dallas too refused to represent Duane: “Though I mean not to question the wisdom and justice of the Senate . . . I cannot consent to act as counsel under so limited an authority.” He added, “Under the circumstances I do not think that I could render, you any service by accompanying you to the bar of the Senate; while I confess, that I should feel the situation degrading to the profession, as well as to myself”
In a flourish meant, certainly, for the newspapers and not for Duane, Cooper ended his letter to Duane: “Where rights are undefined, and power is unlimited — where the freedom of the press is actually attacked, under whatever intention of curbing its licentiousness, the melancholy period cannot be far distant when the citizen will be converted into a subject.”
Left without counsel, Duane turned around and sent Cooper’s and Dallas’ letters to Jefferson. In a cover letter, he told Jefferson that, as a result, he would not appear in front of the Senate for the trial. Duane wrote, “I find myself in consequence of those answers deprived of all professional assistance, under the restrictions which the Senate have thought fit to adopt. I therefore think myself bound by the most sacred duties to decline any further voluntary attendance upon that body, and leave them to pursue such measures in this case as in their wisdom they may deem meet.”
Duane held true to his word; he did not show up. And, on March 26, Jefferson read the letter explaining why Duane would not show up. As a result, the letter was referred to the Committee of Privileges do decide what should be done now that Duane had flouted the Senate’s authority.
The Senate Finds Duane In Contempt; Sends Sergeant-at-Arms After Him
After receiving the letter, Dayton and his fellow Federalists waisted little time. On March 27, the day after Duane sent his letter, the Committee on Privileges recommended two resolutions. The first was to hold Duane in contempt: “William Duane . . . is guilty of a contempt of said order . . . and that, for said contempt, he . . . be taken into the custody of the sergeant-at-arms . . . to be kept subject to further orders of the Senate.” The second was that a warrant be issued for Duane’s arrest to be signed by the President of the Senate, Jefferson himself: “That a warrant issue . . . [that] require[s] you, James Mathers, sergeant-at-arms for the Senate of the United States, forwith to take into your custody the body of said William Duane”
Both resolutions passed.
While the warrant was outstanding, Duane continued to publish his newspaper from hiding. And, he told his readers if they wanted to communicate with him, they could still write to him at the office of the The Aurora and those letters would “be sure to reach him in 48 hours.”
The day after the warrant issued, The Aurora called on the Senate “to show where they derive the power of issuing such process.” The conduct of the Senate, The Aurora said, showed “the importance of the liberty of the press, if there were no truth in this newspaper, why are folks concerned — why do they not send to this paper a denial or refutation of the facts alleged?
In the intervening days, The Aurora kept up the attacks on Adams and took to the defense of Jefferson. While it recognized that “many citizens” were “surprised” that Jefferson signed the warrant, it reminded readers that “the Constitution declares the President shall have no vote in any case unless where the Senate is equally divided.” He had no choice but to sign it.
And things continued this way for the next month, as the end of the session approached. Duane hid, publishing his paper from hiding, evading the issuance of the warrant. Then, on May 10, the citizens of Philadelphia sent to the Senate a letter urging it to reconsider the proceedings against Duane.
On the question of whether to read the remonstrance, the Senate divided evenly. This time, Jefferson, the tie-breaking vote, voted in favor of reading the remonstrance:
We are fully persuaded that the surest safeguard of the right and liberties of the people is the freedom of the press; and friends as we are to a republican Government, we cannot view, without strong emotions of surprise and regret, the doctrines and practices of the privileged bodies of Europe about to be adopted in this free country against that sacred bulwark of republican liberty.
Relying on the constitution, we had thought that no law could be made by Congress abiding the freedom of the press. But we find, by the proceedings of the Senate, that the privileges of one House may effect what the constitution has forbidden. . .
On great public occasions, when our liberties are essentially involved, we will practice and maintain our acknowledged right to petition and remonstrate for redress of grievances; and therefore we do . . . anxiously impress with the danger of the present proceedings, respectfully call upon the Senate to reconsider the resolutions by them adopted on the subject of privilege, in the case of William Duane.
The Senate, however, did not reconsider. On the edge of the end of the first session, it did the opposite. Having not been able to arrest Duane itself, the Senate passed the following resolution: “That the President of the United States be requested to instruct the proper law officer to commence and carry on a prosecution against William Duane, the editor of the newspaper called the Aurora, for certain false, defamatory, scandalous, and malicious publications in the said newspaper, on the 19th of February last past, tending to defame the Senate.”
For now, Duane had successfully outsmarted the Senate.
The Prosecution After
Adams wasted no time. Two days after the Senate passed the resolution, he wrote to Charles Lee, the Attorney General. He wrote simply: “I now instruct you Gentlemen to commence & carry on the prosecution accordingly.” And, indeed, Lee did just that.
Duane was indicted under the Sedition Act and set to appear in court in October of that year. Realizing that the best defense was delay, Duane argued that he needed time to depose witnesses to the alleged crime — many of which were members of the government. But the federal government had since moved to Washington, D.C. from Philadelphia and it would take time to procure their testimony.
On those grounds Duane secured multiple extensions of time until a trial was ultimately set for October 1801. In the intervening months, Jefferson had been elected President and Duane, the trusted republican printer turned to who he saw as a friend.
In June 1801, with Jefferson having been in office for three months, Duane wrote to him to express his frustration and his financial problems stemming from the Sedition Act prosecution against him. Duane lamented: “When I see all my country men at peace, and republicanism diffusing concord and harmony, under the reign of liberty and moderation — I cannot but think it hard, that I alone should still remain the victim.”
And he was. In July, Jefferson would pardon Duane. But the pardon was limited to the Sedition Act. Madison, then Secretary of State, wrote to Alexander Dallas, now the U.S. Attorney for the Eastern District of Pennsylvania, that he should “understand the instruction to prosecute the said William Duane, in pursuance of the resolution of the Senate, as still in force, as far as a prosecution in any other form or in any other Court may consist with the Constitution of the United States.”
Duane, it seems sure, felt betrayed by the moderation with which Jefferson treated his prosecution. Jefferson had removed the burden of one prosecution, only to leave another imminent. But, in October of 1801, the grand jury refused to indict Duane — saved not by Jefferson, but his fellow citizens. At long last, Duane’s conflict with the Senate was over.
Shortly thereafter, Jefferson drafted a message to the Senate, but he never sent it. Scrawled out in his own hand, Jefferson wrote sometime before November 1801:
By a resoln of the Senate of the 14th. of May. 1800. the President was requested to instruct the proper law officer to prosecute William Duane editor of the newspaper called the Aurora for certain publications in that newspaper of the 19th. of Feb. 1800. . . . I have endeavored to do the duty of my station between the Senate & Citizen; to pursue for the former that legal vindication which was the object of their resolution; to cover the latter with whatsoever of protection the Constitution had guarded him, & to secure to the press that degree of freedom in which it remained under the authority of the states, with whom alone the power is left of abridging that freedom, the general government being expressly excluded from it.
Epilogue
Duane died poor — despite eventually being made a lieutenant general by Jefferson. Some years before Duane’s death and long after Duane’s military service had concluded, a friend of his wrote Jefferson in an attempt to have Jefferson convince Monroe, then the President, to give him a job. That friend said of Duane:
“To advocate [the republican cause], was not the most profitable employment for a man of genius: and of this truth we have ample proof, in the character of William Duane, Editor of the Aurora; and he is a farther proof, that writers who look ahead, and write unwelcome truths; who point out coming dangers, and present improprieties which lead to them, are, as regards self interest, indiscreet men.”
The friend added, “His object was the public service; the result, his own ruin. Men who labour in the public service, frequently neglect their own affairs. Duane belongs to this class; and indeed, like others of us, he has his share of the defects of human nature; but we must not desert the man, because he is not an Angel.”
