The Twilight's Last Gleaming
MR. MADISON's COURT
On May 7, 1806, Hartford's Connecticut Courant carried a story to the effect that the Jefferson Administration had secretly appropriated two million dollars as a gift to Napoleon for permission to make a treaty with Spain. While false, the story was mild alongside some of the things published about the Jeffersonians, and, moreover, the Jeffersonian papers were fully capable of both attack and defense in any battle of the prints. It was therefore something of a surprise when, despite a general Administration policy favoring freedom of the press, a federal grand jury indicted the paper's editors, not for violating any statute, but for the common-law crime of libel.
The case finally ended with dismissal of the indictment at the 1812 term of the Supreme Court in a rule of decision well fitted to a case so intimately associated with Thomas Jefferson. In dismissing the case, the Court repeated almost verbatim the thesis asserted in the opening lines of Jefferson's Kentucky Resolutions of 1798 -- that the powers of the federal government consisted of concessions by the states, and that the states expressly retained whatever they did not explicitly concede. From this Jeffersonian premise the Court went to its own judicial conclusion and held that whatever the common law might say on the point, the ju-