Note: This is a couple of days late. But important enough to be resurrected from a post on July 15, 2011.
It may not have been entirely co-incidental that the United States Congress chose July 14, 1798 to pass the Sedition Act, one of a bundle of laws known collectively as the Alien and Sedition Acts. It was, after all, also the 10th anniversary of the Storming of the Bastille by the Paris Mob, a symbolic beginning to the French Revolution.
That Revolution had terrified the dominant Federalist Party, staunch defenders of order, authority, and absolute property rights. In the ten years since the Bastille event, the French Revolution had spun out of control—not only was the ancient monarchy deposed and the Royal Family mostly executed, but a series of new governments unleashed a broader Reign of Terror and an ever more radical agenda. In fact the fledgling political parties—the Federalists of Washington, Hamilton, and Adams and the Democratic-Republicans of Jefferson and Madison had become largely identified with opposition to the French on one side and general support on the other.
As Washington left office tensions rose. John Adams was elected President as a Federalist, but his former friend and collaborator Jefferson, the acknowledged leader of the Republicans, was elected Vice-President under the original Constitutional provision that gave those posts to the winner of the majority of votes in the Electoral College and the next highest vote getter respectively. Federalists also controlled both houses of Congress and comprised virtually the entire federal Judiciary.
Despite calls by the Republicans for even handed neutrality in the war between Revolutionary France and the other European powers, especially the British, Anglophile Federalists tilted heavily toward their old colonial Mother Country and against former ally France. They also refused to pay the American Revolutionary War debt to France on the ground that the commitment was to the former monarchy, not the revolutionary Republic.
This enraged French revolutionary authorities. By 1796 France refused to accept a new American Minister and began raiding American shipping suspected of being in communication with the British. Tensions mounted further with the XYZ Affair in which French diplomats demanded a large bribe to restore diplomatic relations with the U.S.
As commercial shipping losses mounted, Congress authorized the construction or purchase of a new Navy of up to 12 ships, including modern frigates mounting up to 22 guns. The so-called Quasi War broke out in earnest when Congress rescinded all of its treaty obligations to France on July 7, 1798 followed a few days later with an authorization for the infant Navy to attack French warships.
To all of this the Republicans vigorously objected. The highly partisan press on both sides were scathing in their denunciations of each other. The always thin skinned Adams was wounded and outraged by attacks on him as a British agent, monarchist, aristocrat, and personal insults his appearance and demeanor. Members of Congress were hardly less abusive. Adams called on Congress to act against his tormentors citing them as traitors in the war with France.
The Federalist Congress, over the voracious objection of the Republican minority, was glad to oblige. The Alien and Sedition Acts were actually four separate measures.
· The Naturalization Act extended the duration of residence required for aliens to become citizens of the United States from five years to fourteen years.
· The Alien Act authorized the President to personally order the deportation of any alien he determined was “dangerous to the peace and safety of the United States.” This provision was set to expire two years after being enacted.
· The Enemy Alien Act authorized the President to order the arrest and deportation of any aliens from a nation at war with the United States. This is the only one of the Alien and Sedition Acts still in full force today and was cited in the internment of Japanese, German, and Italian national during World War II. Right wing commentators have argued that it could and should be used against Arab and other Islamic minorities as part of the War on Terrorism.
· The Sedition Act made it a Federal crime to “publish false, scandalous, and malicious writing” about the government or individual officials. By extension it was expected to bar similar verbal speech. It had a sunset provision, set to expire on Adams’s last day in office in March of 1801. This was obviously so that if Adam’s lost re-election a Republican president could not turn the law’s provisions against Federalists.
Adams was so distraught by criticism that he did not wait for the Sedition Act to pass Congress before ordering the arrest of Republican editor Benjamin Franklin Bache, the grandson of his superior in the Mission to France during the Revolutionary War, Benjamin Franklin. Bache, in his newspaper The Aurora had criticized George Washington’s administration and attacked Adams as “blind, bald, crippled, toothless, querulous,” and a nepotistic aristocrat. Bache was arrested on common law libel two weeks before the new law was enacted and then recharged when it came into effect. The unfortunate journalist died of Yellow Fever later that year while awaiting trial. Before a partisan Federalist judiciary he faced certain conviction, a hefty fine and long sentence.
In all twenty-five men were arrested under the Sedition Act and 11 came to trial. All who faced Federalist judges were convicted. Among the more noteworthy victims of the law were:
· James Thomson Callender, a Scottish citizen exiled from home for his radical writings. He was charged for his book The Prospect Before Us. Tried before Associate Supreme Court Justice Samuel Chase, the most voraciously partisan of Federalist judges, presiding in Circuit Court and as was then the custom. Callender was not allowed to argue that the Sedition Act was unconstitutional. He was convicted, fined $200, and sentenced to nine months in prison. Like the others convicted, he was pardoned by Jefferson when he assumed the Presidency after the Revolution of 1800.
· Congressman Mathew Lyon of Vermont was arrested for an article published in the Vermont Journal insulting Adams. After his arrest the defiant Irish born Congressman began his own publication, Lyon’s Republican Magazine. He was convicted, fined $1,000 and sentence to four month in prison. While in jail he was re-elected to Congress in 1800. He cast the deciding vote for Thomas Jefferson in the House of Representatives when the presidential election resulted in an Electoral College tie between Jefferson and Aaron Burr, his Republican running mate.
The greatest miscarriages of justice were the prosecutions of ordinary citizens. In Newark, New Jersey Luther Baldwin was in the crowd watching President Adams being welcomed to town. When cannon salutes were fired someone joked, “There goes the President and they are firing at his ass,” to which Brown was overheard to reply “I don’t care if they fire through his ass.” For this he was arrested and charged with “seditious words tending to defame the President and Government of the United States.” He was fined $100.
But that was mild compared to the fate of David Brown of Dedham, Massachusetts. In November 1798 he and his friends had the temerity to erect one of the symbols of the French Revolution, a Liberty Pole emblazoned with the words “No Stamp Act, No Sedition Act, No Alien Bills, No Land Tax, downfall to the Tyrants of America; peace and retirement to the President; Long Live the Vice President.” Arrested and unable to stand bail of $4,000—a then astronomical sum that even the richest Americans would have had trouble raising in cash—he was taken to Salem, a Federalist stronghold. He was held until his trial the following June. When he refused to name those who assisted him in erecting the Liberty Pole, he was convicted, fined $480 and sentenced to eighteen months in prison—the longest sentence given to any victim of the law.
During the entire period in which the Sedition Act was in place, no charges were brought against Federalist journalists or speakers who attacked the Vice President and Republican law makers with every bit as much vigor and vitriol as Republicans did against the President. Enforcement as clearly political.
Republican leaders Jefferson and James Madison struggled to find a way to counter the obvious tyranny of the law. Despite Madison’s preferences for a stronger central government than Jefferson would have preferred they jointly drafted the Kentucky and Virginia Resolutions which denounced the Act as an attack on Constitutionally protected freedom of press, speech, and assembly and asserted the right of individual states to retain their natural rights which the voluntarily ceded to the Federal Government and to nullify Federal laws which breech those rights. Although the Resolutions were never enacted, they became the philosophical foundation of subsequent Southern claims of state sovereignty and what became known as the Doctrine of Nullification.
Naturally, the Sedition Act became one of the hot button issues of the election of 1800. Most Americans, including many moderate Federalists, were aghast at the overt attack on hard won liberties of speech and press. The Republicans were swept to power by large majorities. Not only did Jefferson ascend to the Presidency, but Republicans took both the House of Representatives and the Senate and won several governorships and control of state legislatures. The Federalists were dealt a blow from which they never recovered. Soon they were reduced to a New England regional rump party and they disappeared entirely after the War of 1812.
In office, Jefferson pardoned those convicted under the act. He personally contributed to several of the victims were financially ruined by persecution. But he could not repeal the Act, because it expired with the Adams’ administration.
The Sedition Act was never ruled unconstitutional. Federal courts did not assert the right to make such a ruling until Chief Justice John Marshall asserted it in the case of Marbury v. Madison in 1803. Which is probably a good thing because the overwhelmingly Federalist Judiciary would have undoubtedly upheld the act.
Various later Supreme Court decisions have mentioned the Act and assumed that it was unconstitutional. As Justice William O. Douglas wrote in an opinion in 1964, “The Alien and Sedition Laws constituted one of our sorriest chapters; and I had thought we had done with them forever...Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.”
Unfortunately the ghost of the Sedition Act will not stay still. Neo-con intellectuals resurrected it as part of their theory of the Unitary Power of the Executive during the dismal reign of George W. Bush. They asserted that in matters of “national security” the President has virtually unlimited power in time of war or “emergency” to take whatever measures he deems necessary, including superseding “ordinary” Constitutional restraints, in the “protection of the homeland.”
Many features of the Alien and Sedition Acts, including criminalizing certain speech and associations, were incorporated into the massive and complex Patriot Act hastily adopted after the 9/11 attacks and extended by Congress last year..