Individual cases told the story of personal liberty in the America of the late 1790s. Most poignant was that of “Lightning Rod” Bache. Still in his twenties, Bache had contributed his share of vituperation and abuse to the national debate. But he had also suffered more than his share of retaliation from the powerful Federalists in Philadelphia. He had been barred from the floor of the House of Representatives, assaulted in the streets, surrounded by mobs in his home. Federalist merchants had withheld advertising, and his adversaries urged that he should be treated “as we should a TURK, A JEW, A JACOBIN, OR A DOG.” When Bache’s Aurora took advantage of a “leak” to print a conciliatory message from Talleyrand to American envoys, members of the Administration, outraged by this blow at their war policy, concocted a clumsy plot to implicate the young editor in “treasonable correspondence.” The ploy failed, but in defending himself against the charge Bache made such strong statements that those statements were then seized upon by the prosecutors as the basis for bringing Bache into court on a new charge of “libelling the President & the Executive Government in a manner tending to excite sedition.…”
The trial was set for the October term; meantime Bache kept up his defense and wrote a brilliant editorial on liberty. In the balance of liberty and order, he wrote, the effort to protect the security of the state had gone so far as to threaten the liberty of the individual. “One of the first rights of a human is to speak or to publish his sentiments; if any government founded upon the will of the people passes any ordinance to abridge this right, it is as much a crime as if the people were, in an unconstitutional way, to curtail the government or one of the powers delegated to it.”
Early in September the fever sweeping Philadelphia accomplished what the Federalists never had: the silencing of Bache. He died in the plague of ’98.
A case as comical as Bache’s was dolorous involved one Luther Baldwin of Newark. Old Luther, a bit tipsy already, was headed into John Burnet’s dram shop in that New Jersey city just after President and Mrs. Adams had driven down Broad Street, followed by the boom of cannon fire. When another customer said to Baldwin, “There goes the President and they are firing at his a—,” Baldwin replied that he didn’t care if “they fired through his a—!” That was seditious, the dram keeper exclaimed, and turned the scoundrel over to the authorities. “Here’s Liberty for you,” a Newark newspaper gibed, and the case soon became a national joke. It was no joke for Baldwin, however, when he and his crony were tried, found guilty of “sedicious words tending to defame the President…,” sentenced to a total of $200 in fines, and committed to federal jail until fines and fees were paid.
A more typical case, though involving an unusual man, was that of Thomas Cooper, editor of the Northumberland (Pa.) Gazette. An English radical who was also a textile mill owner in Manchester and a lawyer, Cooper had escaped the oppressive English atmosphere of the mid-1790s by moving to Pennsylvania, where he practiced both law and medicine. He became good friends with another removed Englishman, the famous scientist and Unitarian minister Joseph Priestley, who had long corresponded with John Adams. Evidently finding himself with not enough to do, Cooper began to edit the Gazette and to imply that President Adams was a threat to liberty, popular sovereignty, and the rights of man. Reprinted in the Philadelphia Aurora, and distributed by Dr. Priestley in handbill form, the attack was soon denounced by the Federalists as demagogic and subversive. It was a “libel against the whole government,” Adams said, “and as such ought to be prosecuted.”
He would not use the Alien Act against his old friend Priestley, however, because he had simply been misled by Cooper. Indicted for sedition, Cooper had the misfortune to come before Associate Justice Samuel Chase of the Supreme Court. Widely viewed as a “hanging judge,” Chase acted more as prosecutor than judge. By his rulings he largely prevented Cooper from making truth a defense; he barred admission of evidence that might have helped the defendant; and he informed the jury flatly that bad intent had been proved. Relieved of much of the burden of judging, the jury brought in its guilty verdict in twenty minutes. Chase sentenced him to six months in prison and a fine. Cooper served his time—and promptly renewed his attacks on the Administration.
These and other trials attracted national attention and aroused furious debate. That debate, however, generated more heat than light. It was conducted mainly at two levels. On the grand level of national principles and values, the Federalists simply argued that order was indispensable to liberty, that false and exaggerated attacks fomented disorder, that there was ample freedom for calm and temperate criticism of the Administration—and that, after all, there was virtually a war on. They pointed out, moreover, that the Sedition Act was far more permissive than the common law under which sedition had long been prosecuted, for under the common law truth was not a defense and malicious intent need not be proved. The Sedition Act, Federalists contended, was “remarkable for its lenity and humanity: No honest man need to dread such laws as these.” Republicans, scoffing at this picture of the Sedition Act as virtually a reform law, noted its repressive features and its dependence on fair-minded judges and juries. They charged the Federalists with seeking to establish an all-powerful “consolidated” government, in which the loyal opposition would have no rights. This debate over moral principles remained unresolved.
On a second level, the debate concerned the constitutionality of the Alien and Sedition Acts. Republicans argued that in particular the Sedition Act flagrantly violated the recently adopted Bill of Rights. Federalists contended that federal courts had jurisdiction over so-called common-law offenses against the nation, by virtue of Article III of the Constitution and the Judiciary Act of 1789. Here the Federalists perhaps had the best of the argument, for at the time the First Amendment did not appear to cancel federal power over the press in all circumstances.
Between the level of passionate invocation of principle and the level of constitutional and legal exegesis, however, something was missing in what should have been the Grand Debate over the liberty of Americans. All too often the argument on both sides was couched in vast stereotypes, grandiloquent symbols, and unexceptionable goals, rather than based on systematic analysis and concrete, disciplined thought. If liberty was the supreme goal, some of the unanswered questions were: What kind of liberty? Liberty for whom? Liberty from whom? Liberty expressed through what kinds of channels or vehicles (press, church, assembly, or other)? Liberty in what kind of context (war or peace, a crowded street or a philosopher’s study)? Liberty expressed through—or protected from—what level of government (state or national) and what branch of government (executive or legislative or judicial)? And the toughest question of all—to what degree, and in what way, should public authority be used to protect individual liberty against private power, such as that of a corporation or a tavernkeeper? Or a slaveowner?
Both the top leadership corps—the Adamses and the Jeffersons—and a second cadre of leadership—the new generation in Congress—had failed to grapple with the question of liberty in all its dimensions, complexities, and paramountcy. The question by decade’s end was whether the third cadre of leadership in cities and towns and villages and hamlets throughout the nation would rise to the occasion. Their power to make a brute decision with one blow, between the Federalist and Jeffersonian approaches to liberty, lay in the approaching presidential election of 1800. But in the spring and summer of 1798 that election seemed a long way off. Would liberty in America expire in the meantime?
Extremism begets extremism. As they watched the Federalists seemingly bent on extinguishing liberty of speech and the press—and hence the power to oppose—some Republicans reverted to the old idea of nullification and even secession. Passions were running so high in 1798 that it seemed possible the young republic might be rent apart and the great experiment brought to an end amid disunion and even civil war. National leaders like Hamilton and Jefferson were already talking in extreme terms. All would depend on the mass of citizens and their local e
lected and unofficial leadership in the states and counties and towns. To an extraordinary degree, that leadership responded to crisis by recognizing its severity, but also by advocating radical but not irresponsible action.
The Alien and Sedition Acts aroused protest throughout the nation, but nowhere was the response more instant or intense than in Kentucky. Even when the House of Representatives in Philadelphia was first considering alien and sedition legislation, the Lexington Kentucky Gazette printed the text of an early bill, and a week later the paper was featuring a call for a mass meeting in Lexington to consider “the present critical situation of public affairs.” State politicians quickly took leadership of a powerful rising feeling against the alien and sedition legislation, as the Gazette continued to print texts of new bills and speeches in Congress. On the Fourth of July the militia at a meeting in Lexington provocatively toasted liberty of speech and press. The protest was contagious; soon meetings were being held in other Kentucky counties.
Jefferson and Madison watched these developments somberly. The Vice-President, who could hardly expect to be protected by the Sedition Act against scurrilous Federalist attacks on him as a government official, pondered what action to take. His answer took the form of a series of resolutions contending that the new federal government was merely a compact among the states; that the federal government held only narrowly delegated powers; hence that “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Because Jefferson had close ties with a number of Kentucky politicians, his resolutions were eagerly adopted by the Kentucky legislature, but with one important tactical change—the resolutions were to be transmitted to the Kentucky delegation in Congress. Jefferson had opposed this procedure—his whole strategy now was to appeal to the states, not the national government—but the legislature preferred to follow the lead of the county politicians who favored the appeal to Congress. Thus, notes James Morton Smith, “the struggle over the alien and sedition legislation would be waged at the level of practical politics organized in national parties; political infighting rather than theoretical consideration of federal-state relations would dominate the great debate.”
The Kentuckians of course hoped that other states would follow their lead. Virginia, where county and local meetings had protested the Alien and Sedition Acts, was the obvious state to pursue the battle. Jefferson as usual was in touch with Madison, who in turn worked with state politicians, especially John Taylor of Caroline, a brilliant agrarian thinker, scientific farmer, and lawyer. The Federalists were stronger in Virginia than in Kentucky, and the Virginia resolution was correspondingly milder than the Kentucky resolve. The latter would assert the right of each state to judge whether the national government had exceeded its powers; the Virginians asserted the power of the states. Even so, the Virginia resolution made a bold assertion: “In case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights and liberties appertaining to them.”
The hopes of the resolvers were now pinned to endorsement in other states, but what happened was—nothing. All the states north of the Potomac, all being Federalist-dominated, emphatically disapproved the Virginia and Kentucky resolutions by formal legislative action. The central argument of the resolutions—that the Union was simply a compact among states—was simply ignored. South of the Potomac the Republicans were strong enough to block disapproval, but they could not gain approval. Everywhere the resolutions were condemned as leading toward secession and disunion. Many of the resolutions’ adversaries contended that not the states but the federal judiciary was the proper authority to pass on the constitutionality of federal laws—a hint of a major political and constitutional battle to come within five years.
It was not surprising that George Washington regretted “extremely” the resolutions, or that Abigail Adams referred to them as “mad,” or that Hamilton considered them a rebellious act and suggested marching troops through Virginia. What was remarkable was that hundreds of state legislators, county officials, local editors, and other leaders should have recognized the Alien and Sedition Acts as the threat to liberty that they were, that this cadre of state and local leaders should have responded with resolutions equally extreme and dangerous, and that national, state, and local leaders, after a strenuous grass-roots debate, nullified the grand strategy of Kentucky and Virginia, as ultimately they would reject the Sedition Act. That rejection would have to await the coming political showdown of 1800.
THE VENTURES OF THE FIRST DECADE
On December 12, 1799, George Washington rode out as usual to oversee his plantations. Snow began to fall, then hail, then a “settled cold Rain,” as he noted in his diary. He returned home with his head covered with snow and rain but made light of it, and went to dinner without changing. The next day was colder, and Washington, more and more hoarse as the day wore on, stayed home. In the early hours of the next morning he awoke Martha Washington to say that he was unwell. She summoned doctors, who bled him four times. He steadily became weaker. Late on the fourteenth he asked his wife to go to his desk and fetch his will, drawn up in his own hand six months before. For a time he studied the document—the watermark portrayed the goddess of agriculture with a staff topped by a liberty cap, and the text freed his slaves on his wife’s death—before handing it to his wife for safekeeping.
The old general knew he was dying. During the long hours, as the doctors applied blisters and poultices to his legs and feet, and forced molasses and vinegar through his almost closed throat, he uttered no word of complaint. He seemed to wish only to go to his death with dignity, with his affairs in order, with the least bother to those around him. Coolly he monitored his own death. Toward midnight of the fourteenth he took his pulse for the last time, his fingers fell away from his wrist, and he died without a sound.
Thus passed the American leader who, perhaps more than any of his peers, viewed the new Constitution as a grand experiment that must prove itself in action. Like hundreds of others of his generation, he had lived through a series of witting or unwitting ventures in government—in the 1750s and 1760s under British monarchical and parliamentary rule, in the late 1770s under a revolutionary regime, in the 1780s in a confederation of largely independent states, in the 1790s in a strange hybrid of national and state power, of legislative and executive authority. Rarely have cadres of leadership been able to test their ideas in such spacious political laboratories.
These leaders had witnessed other experiments too. Farmers in Massachusetts and in Pennsylvania had had a fling at rebellion. Many Southerners and a few Northerners had flirted with notions of secession. Federalists had tried their hand at repression. Jefferson and Madison had proposed nullification. Rhode Islanders had tried separatism. Through all these Washington had lived, but he died as another great experiment was coming to a head—an experiment of which he heartily disapproved. He had warned in his Farewell Address against nothing more solemnly than “the baneful effects of the Spirit of Party, generally.” But as the general was laid to rest in the family plot, overlooking the fields and the river he loved, the nation was on the eve of an election year—and the spirit of party was in command.
A supreme paradox lay behind that spirit. By the end of the 1790s the American people had started to build the foundations of a powerful two-party system. But: they did not fully know what they were doing. Nor did they believe in what they were doing. The strategy of 1787, that of checks and balances and the fragmenting of power, had been designed to prevent Americans from establishing parties. The received wisdom of the day—especially that of the most noted political and intellectual leaders—was absolutely hostile to political parties. And historians to this day have differed as to how these party foundations were built, despite the obstacles. But built
they were.
The strategy of 1787 had been shaped first by a brilliant and masterful elite corps of leaders and then had been reshaped and ratified by a second cadre of nascent republicans and a “third cadre” of grass-roots leaders throughout the states. That strategy had been achieved in a few stunning acts—in Philadelphia in 1787, in the state ratifying conventions, in the framing of the Bill of Rights by Congress and the state legislatures. That strategy had been clear and purposeful; the Framers and their friends and opponents well knew what they were up to. The strategy of party emerged out of gropings and fumblings, short-run needs and narrow interests, local and state as well as national rivalries. It emerged less from national conventions and congresses than from taverns and coaching houses, local clubs and caucuses, town and state debates and elections, dram-shop rows and fisticuffs. If the constitutional strategy of the 1780s was founded on consensus, the strategy of the 1790s grew out of conflict.
The wise men of the day hated the very thought of unbridled factions and parties. “If I could not go to heaven but with a party,” Jefferson said, “I would not go there at all.” They had a theory of constitutions, but they had no theory of parties. To men in power, the opposition party was not a benign adversary that someday, through the ordinary rotation of “ins” and “outs,” would come to power. The opposition party was at best divisive, factious, destructive, at worst illegitimate, conspiratorial, subversive, and, if allied secretly with the British or French, utterly traitorous. Federalists and Republicans alike looked on the other’s activities as partisan and hence as malign, their own as transcending party and faction and hence benign. Each perceived the other, whether in Congress or state legislatures, as regimented as Prussians, itself as composed of free spirits. Typically Federalists and Republicans wanted less to compete with one another than to destroy the other, or at least absorb the other.
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