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The Sedition Act of 1798
For the first few years of Constitutional government, under the
leadership of George Washington, there was a unity, commonly called Federalism that even
James Madison (the future architect of the Republican Party) acknowledged in describing
the Republican form of government-- " And according to the degree of pleasure and
pride we feel in being republicans, ought to be our zeal in cherishing the spirit and
supporting the character of Federalists." Although legislators had serious
differences of opinions, political unity was considered absolutely essential for the
stability of the nation.
Political parties or factions were considered evil as "Complaints
are everywhere heard from our most considerate and virtuous citizens, equally the friends
of public and private faith, and of public and personal liberty, that our governments are
too unstable, that the public good is disregarded in the conflicts of rival parties, and
that measures are too often decided, not according to the rules of justice and the rights
of the minor party, but by the superior force of an interested and overbearing
majority..." Public perception of factions were related to British excesses and
thought to be "the mortal diseases under which popular governments have everywhere
perished." James Madison wrote in Federalist Papers #10, "By a faction, I
understand a number of citizens, whether amounting to a majority or a minority of the
whole, who are united and actuated by some common impulse of passion, or of interest,
adversed to the rights of other citizens, or to the permanent and aggregate interests of
the community." He went on to explain that faction is part of human nature;
"that the CAUSES of faction cannot be removed, and that relief is only to be sought
in the means of controlling its EFFECTS." The significant point Madison was to make
in this essay was that the Union was a safeguard against factions in that even if
"the influence of factious leaders may kindle a flame within their particular States,
[they will be] unable to spread a general conflagration through the other States."
What caused men like Thomas Jefferson and James Madison to defy
tradition and public perceptions against factions and build an opposition party? Did they
finally agree with Edmund Burkes' famous aphorism: "When bad men combine, the good
must associate; else they will fall, one by one, an unpitied sacrifice in a contemptible
struggle?" Did the answer lie in their opposition with the agenda of Alexander
Hamilton and the increases of power both to the executive branch as well as the
legislative branch of government? Hamilton pushed for The Bank of the United States, a
large standing Army raised by the President (Congress was to raise and support armies,) a
Department of Navy, funding and excise taxes, and, in foreign policy, a neutrality that
was sympathetic to British interest to the detriment of France. Many legislators,
especially those in the south, were alarmed to the point that a separation of the Union
was suggested as the only way to deal with Hamilton's successes. Many were afraid that the
army would be used against them as it had during the Whiskey Rebellion. Southerners saw
the taxes to support a new treasury loan favoring "pro-British merchants in the
commercial cities," and unfairly paid by landowners in the South. These issues as
well as neutrality issues between France, England, and the United States were the catalyst
for the forming of the Republican Party.
The French and English conflict caused many problems with America's
political system. The English "Order of Council" and the French "Milan
Decree" wreaked havoc with America's shipping and led to Jay's Treaty of 1794. Jay's
Treaty was advantageous to America and helped to head off a war with Britain, but it also
alienated the French. The French reacted by seizing American ships causing the threat of
war to loom large in American minds. President Adams sent three commissioners to France to
work out a solution and to modify the Franco-American alliance of 1778, but the Paris
government asked for bribes and a loan from the United States before negotiations could
even begin. The American commissioners refused to pay the bribes and they were denied an
audience with accredited authorities and even treated with contempt. Two of the
commissioners returned to the United States with Elbridge Gerry staying behind to see if
he could work something out. This became known as the XYZ affair and was the beginning of
an undeclared naval war between France and the United States.
The XYZ affair played right into the hands of the Federalist Party. They
immediately renounced all treaties of 1788 with France and began their agenda of creating
a large standing army and a Navy Department to deal with the threat of an American-French
war. Fear and patriotism were fanned and a strong anti-French sentiment swept the land.
Then a gem of a caveat was thrown into the Federalist hands when Monsieur Y boasted that
"the Diplomatic skill of France and the means she possess in your country, are
sufficient to enable her, with the French party in America, to throw the blame which will
attend the rupture of the negotiations on the Federalist, as you term yourselves, but on
the British party, as France terms you." This boast was to cause suspicion and wide
spread denunciation of the Republican Party and its leaders. Senator Sedgwick, majority
whip in the Senate, after hearing of the XYZ Affair, said, "It will afford a glorious
opportunity to destroy faction. Improve it." Hamilton equated the public's perception
of the Republican's opposition to the Federalist's agenda like that of the Tories in the
Revolution. All in all, this boast began the process that became the Alien and Sedition
Acts of 1798.
The Republicans debated against the bills for about a month, but the
Federalist had the votes. A background of fear helped keep the public silent and perhaps
somewhat approving to the loss of some personal freedoms, as nobody wanted to be accused
as a Jacobean. In May of 1778, President Adams declared a day of prayer and fasting. Many
thought that the Jacobeans were going to use that day to rise up in insurrection and
"cut the throats of honest citizens." They even thought they were going to
attack President Adams and citizens of Philadelphia came out by the hundreds to protect
him. Federalist saw this as a demonstration of support for the government. Those who spoke
against the Sedition bill were accused of being in league with the Jacobeans. Edward
Livingston, in opposing the bill said, "If we are ready to violate the Constitution,
will the people submit to our unauthorized acts? Sir, they ought not to submit; they would
deserve the chains that our measures are forging for them, if they did not resist."
The Federalist accused Livingston of sedition because of his implied
threat of popular rebellion; a practice seen in future debates when unlawful power was to
be enforced. Republican newspapers were railing against the Federalist and especially
against the Sedition bill. The Aoura was the leading Republican publication and Benjamin
Bache was its editor. Baches ability to get the story out caused much consternation among
Federalist. Harrison Gray Otis said that Baches' writing influenced even intelligent
people, "What can you expect from the gaping and promiscuous crowd who delight to
swallow calumny..?" The Federalist needed the Sedition bill to shut down the
Republican presses and Bache played right into their hands with his publication of
Tallyrand's conciliatory letter to the American envoys before the President had even seen
it. Republicans insisted that this was a journalistic scoop that would lead to peace
because France was willing to negotiate with Edmund Gerry. The Federalist wanted Bache to
explain how he had received a letter that the President hadn't even seen yet. They began
to accuse him of being in league with France, an agent of Tallyrand and an enemy of the
people of the United States. The administration was so incensed with Bache that they
didn't wait for passage of the Sedition bill, but had him arrested for treason on June 27,
1778.
From the very beginning Republican leaders recognized that the Sedition
bill was primarily directed toward the destruction of any opposition to the Federalist
Party and its agenda. Albert Gallatin said the Sedition Act was a weapon "to
perpetuate their authority and preserve their present places." Proof that this bill
was politically motivated became obvious when the House voted to extend the act from the
original one year proposed to the expiration of John Adams term, March 3, 1801. The States
response to the passing of the Sedition Act was mixed. Kentucky and Virginia each
responded with acts basically nullifying the Congressional act, but other states accepted
the Congress taking authority from what had been a state function. The public response
initially appeared mixed. British common law seemed to have preconditioned many to accept
a limitation of their personal freedoms. The victory of the Republicans, who ran on a
platform of anti-sedition, in the election of 1800 showed that Americans were much more
interested in personal freedom than the aristocratic Federalist thought. What would happen
if Congress submitted a Sedition Bill today as they did in 1778? With our established
two-party system (in marked contrast to their conceptions of factions), the freedom of
press as a well developed principle, and freedom of speech the cornerstone in American's
sense of liberty; it seems that there would be a major revolt.
Are there any instances in 20th century history that compares to the
Sedition Act's flagrant disregard of the First Amendment? No government actions seem so
blatantly unconstitutional as the Sedition Act of 1798; but, there are many actions since
then that have caused much more personal pain than the twenty-seven persons convicted
under the Sedition Act. In times of war it is understood that many personal liberties may
be curtailed, especially for enemy aliens living in the United States. The War Relocation
Authority signed by President Roosevelt caused thousands of enemy aliens as well as
Japanese- American citizens to lose everything as they were interned in concentration
camps throughout the West. These Americans were told that if they were true patriotic
citizens they would go without complaining. If they were to complain then that was prima
facie evidence that they were not loyal citizens.
In June of 1940, America's fear of German aggression led to the
enactment of the Smith Act. Much like the Alien and Sedition Act it required all aliens to
be registered and fingerprinted. It also made it a crime to advocate or teach the violent
overthrow of the United States, or to even belong to a group that participated in these
actions. The United States Supreme Court upheld the constitutionality of the law in the
case of eleven communist (Dennis v United States.) This decision was later modified in
1957 (Yates v United States.) The Court limited conviction to direct action being taken
against government, ruling that teaching communism or the violent overthrow of government
did not in itself constitute grounds for conviction. Another instance of governmental
infringement of the liberties of American citizens is the well known Senate Sub-committee
on un-American Activities headed by Joseph McCarthy. Thousands of people lost their
livelihood and personal reputations were shattered by innuendo, finger pointing, and
outright lies. As in earlier instances of uncontrolled excesses by people in government,
guilt was assumed and protestations of innocence were evidence that "something"
was being hidden.
In 1993, rumblings were heard from the Democratic controlled Congress
that there needed to be fairness in broadcasting. If one viewpoint was shared, they felt
the opposing viewpoint must be given fair time to respond. This was facetiously called the
"Rush Act" in response to the phenomenal success of conservative radio talk show
host, Rush Limbaugh. As in the 1790's when Republicans formed newspapers to counteract the
Federalist control of the press; many conservatives felt that the few conservative
broadcasters and programs had a long way to go before they balanced the liberal press.
Fortunately, as in the 1800 election, Republicans gained control of Congress in 1992 and
the "Rush Act" died a natural death. Recently many Americans have become
concerned with domestic terrorism. Waco, the Oklahoma Federal Building, and now the
Freemen in Montana have caused citizens and legislators alike to want something done. The
House of Representatives just approved HR2768. This bill will curtail many liberties for
American citizens as well as Aliens.
The following are eight points made by the ACLU concerning this bill: 1.
Broad terrorism definition risks selective prosecution 2. More illegal wiretaps and less
judicial control will threaten privacy 3. Expansion of counterintelligence and terrorism
investigations threatens privacy 4. The Executive would decide which foreign organizations
Americans could support 5. Secret evidence would be used in deportation proceedings 6.
Foreign dissidents would be barred from the United States 7. Federal courts would
virtually lose the power to correct unconstitutional Incarceration 8. Aliens are equated
with terrorists This bill has many points in common with the Alien and Sedition Acts of
1798, the Smith Act of 1950, the McCarren Act of 1950, and the Executive Order of Feb.19,
1942 that led to War Relocation Authority. Each one of these actions were taken when fear
controlled the public and an agenda controlled the people in authority. Thankfully, the
American people have the Constitution and the Bill of Rights to bring them back from the
edge, and to force those in positions of responsibility to accountability.
The responsibility of government lies with the governed. If the American
people react to trying situations and events in fear, then a general malaise and sense of
helplessness will permeate the collective American consciousness. The abdication of
personal responsibility erodes liberty, creating an atmosphere of dependency, that leads
to bigger government and its pseudo security. Edward Livingston's statement, "If we
are ready to violate the Constitution, will the people submit to our unauthorized acts?
Sir, they ought not to submit; they would deserve the chains that our measures are forging
for them, if they did not resist," serves as a timely warning to Americans today.
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