William Paterson and the National Jurisprudence: Two Draft Opinions on the Sedition Law of 1798 and the Federal Common Law

Abstract

William Paterson and the National Jurisprudence: Two Draft Opinions on the Sedition Law of 1798 and the Federal Common Law Williamjames HullHoffer In the late 1790s, controversies swirled about the nature and extent ofthe Constitution of the new nation. The achievement of the Framers had already been tested by the rise of a standing two party system, a novelty anathemato existingAnglo-Americanpolitical theory. The rival political camps had reached out from within the government to create electoral parties throughout the land. In the process, political leaders became electoral organizers, in societies, parades, speeches, and newspapers rallying adherents and battering opponents. Events in Europe gave urgency and energy to the party competition. The Federalist party, already the bastion ofthe creditor interest, traditional religion, and deference politics, sympathized with the commercial interest in Great Britain while the rapidlyemergingDemocraticRepublicanparty identified with the revolutionary program of France. The egalitarian striving of French revolutionaries echoed in the manifestoes of the Democratic Republicans, while the conser­ vative cautions of the English right found favor among Federalists. Leaders of the parties contested foreign policy, the handling ofthe national debt, and the very nature ofthe political process within the new republic.1 The political contest focused upon control ofCongress and the presidency—at least until 1798. According to defenders ofthe Constitu­ tion, the federal courts were to be the weakest branch of the new government, its judges shielded from partisanship by tenure during good conduct and the two tiered system of nomination and confirmation.2 The Judiciary Act of 1789 created the inferior courts of a national judiciary, but failed to give to the district and circuit courts the manpower or the rulemaking power necessary to carry on their work.3 State governments refused to accept the authority of these inferior federal courts when vital state interests were involved.4 Even the Supreme Court was less than supreme. A PATERSONDRAFT OPINIONS 37 In his analysis of two of Justice William Paterson’s draft opinions, the author shows how the New Jersey Justice (above) went beyond de­ fending his country’s federal common law for political reasons and wrestled with some of the great constitutional questions. number ofleading lawyers andjudges spumed nomination to its Bench because they thought it less important than state tribunals. It had no building of its own, a skeletal staff, and worst of all, from the standpoint of its members, Supreme Court Justices had to ride circuit and sit on federal trial courts. So debilitating was the circuit riding that only the healthiest Justices could survive it for long. John Jay, the first ChiefJustice, retired from his post after a mere six years, in part to preserve his health. Freed of the onus of traveling long days and nights over terrible roads he lived for nearly three more decades.5 Long a relative backwater in the political wars, in 1798 the federal courts became the focal point ofthe battle. The gravamen was the Federalist majority in Congress adapting English common law doctrine to criminalize seditious libel of the government in the Seditious Libel Act of 1798. Publication of libels of the government was criminalized. Some states already had such acts on their books, but no one doubted that a state could adopt English common law precedents if it so chose, but under the new statute cases were to be heard in federal courts.6 Was a federal seditious libel law constitutional? Scholars still battle over the status of the federal common law, pouring over such hoary precedents as U.S. v. Hudson and Goodwin? Swift v. Tyson, and Erie v. Tompkins, among others.8 Some researchers have found evidence in contemporaries’ unpublished papers that place the protagonists in one partisan camp or the other.9 The underlying assumption in these arguments is that the issue had either politicizedthe federal bench or demonstrated how partisan that bench already was. Supreme Court Justice William Paterson faced the question of the constitutionality of the seditious libel law in 1798, and although scholars credit him with strongly supporting the constitutionality of the seditious libel law, his draft opinions have gone largely unanalyzed on their own merits.10 They deserve better, for Paterson’s reasoning was sharp and his reading...