These are examples of the application by the National courts of the common law of England in cases where Congress had failed or refused to act. Crime must be punished, said the judges; if Congress would not make the necessary laws, the courts would act without statutory authority. Until 1812, when the Supreme Court put an end to this doctrine,[89] the National courts, with one exception,[90] continued to apply the common law to crimes and offenses which Congress had refused to recognize as such, and for which American statutes made no provision.
Practically all of the National and many of the State judges were highly learned in the law, and, of course, drew their inspiration from British precedents and the British bench. Indeed, some of them were more British than they were American.[91] "Let a stranger go into our courts," wrote Tyler, "and he would almost believe himself in the Court of the King's Bench."[92]
This conduct of the National Judiciary furnished Jefferson with another of those "issues" of which that astute politician knew how to make such effective use. He quickly seized upon it, and with characteristic fervency of phrase used it as a powerful weapon against the Federalist Party. All the evil things accomplished by that organization of "monocrats," "aristocrats," and "monarchists"—the bank, the treaty, the Sedition Act, even the army and the navy—"have been solitary, inconsequential, timid things," avowed Jefferson, "in comparison with the audacious, barefaced and sweeping pretension to a system of law for the U.S. without the adoption of their legislature, and so infinitely beyond their power to adopt."[93]
But if the National judges had caused alarm by treating the common law as though it were a statute of the United States without waiting for an act of Congress to make it so, their manners and methods in the enforcement of the Sedition Act[94] aroused against them an ever-increasing hostility.
Stories of their performances on the bench in such cases—their tones when speaking to counsel, to accused persons, and even to witnesses, their immoderate language, their sympathy with one of the European nations then at war and their animosity toward the other, their partisanship in cases on trial before them—tales made up from such material flew from mouth to mouth, until finally the very name and sight of National judges became obnoxious to most Americans. In short, the assaults upon the National Judiciary were made possible chiefly by the conduct of the National judges themselves.[95]
The first man convicted under the Sedition Law was a Representative in Congress, the notorious Matthew Lyon of Vermont. He had charged President Adams with a "continual grasp for power ... an unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice." Also, Lyon had permitted the publication of a letter to him from Joel Barlow, in which the President's address to the Senate and the Senate's response[96] were referred to as "the bullying speech of your President" and "the stupid answer of your Senate"; and expressed wonder "that the answer of both Houses had not been an order to send him [Adams] to the mad house."[97]
Lyon was indicted under the accusation that he had tried "to stir up sedition and to bring the President and Government of the United States into contempt." He declared that the jury was selected from his enemies.[98] Under the charge of Justice Paterson of the Supreme Court he was convicted. The court sentenced him to four months in jail and the payment of a fine of one thousand dollars.[99]
In the execution of the sentence, United States Marshal Jabez G. Fitch used the prisoner cruelly. On the way to the jail at Vergennes, Vermont, he was repeatedly insulted. He was finally thrown into a filthy, stench-filled cell without a fireplace and with nothing "but the iron bars to keep the cold out." It was "the common receptacle for horse-thieves ... runaway negroes, or any kind of felons." He was subjected to the same kind of treatment that was accorded in those days to the lowest criminals.[100] The people were deeply stirred by the fate of Matthew Lyon. Quick to realize and respond to public feeling, Jefferson wrote: "I know not which mortifies me most, that I should fear to write what I think, or my country bear such a state of things."[101]
One Anthony Haswell, editor of the Vermont Gazette published at Bennington, printed an advertisement of a lottery by which friends of Lyon, who was a poor man, hoped to raise enough money to pay his fine. This advertisement was addressed "to the enemies of political persecutions in the western district of Vermont." It was asserted that Lyon "is holden by the oppressive hand of usurped power in a loathsome prison, deprived almost of the right of reason, and suffering all the indignities which can be heaped upon him by a hard-hearted savage, who has, to the disgrace of Federalism, been elevated to a station where he can satiate his barbarity on the misery of his victims."[102] The "savage" referred to was United States Marshal Fitch. In the same paper an excerpt was reprinted from the Aurora which declared that "the administration publically notified that Tories ... were worthy of the confidence of the government."[103]
Haswell was indicted for sedition. In defense he established the brutality with which Lyon had been treated and proposed to prove by two witnesses not then present (General James Drake of Virginia, and James McHenry, President Adams's Secretary of War) that the Government favored the occasional appointment of Tories to office. Justice Paterson ruled that such evidence was inadmissible, and charged the jury that if Haswell's intent was defamatory, he should be found guilty. Thereupon he was convicted and sentenced to two months' imprisonment and the payment of a fine of two hundred dollars.[104]