Now, and for some years to come, Republicans would have to remind their enemies that Hamilton, reared in the West Indies, had come to America at the age of eighteen; Gallatin, educated in freedom in Switzerland, arrived at the age of nineteen. Who, then, was more American?
“Who Can Object to a Sedition Bill?”
The issue was far from simple. Jefferson had recently revealed the nativist strain in his thinking when he drafted a petition in opposition to the action of a federal grand jury in Virginia. He objected to the grand jury’s presentment against a Republican congressman who used anti-administration language in a circular to his constituents. When judges or grand jurors were made “inquisitors,” violations of free speech would receive sanction. Jefferson diagnosed the problem correctly but went too far in the cure he recommended. He wanted the grand jurors impeached by the Virginia House of Delegates. And he further argued that the jury pool should be restricted to “native citizens of the United States.” He must have been told that one or more members of this particular grand jury were not U.S.-born.
Madison gently urged Jefferson to reconsider. The state assembly was not the proper venue for his complaint—and Monroe agreed. The operation of a federal grand jury was a federal, not a state, matter. Madison worried about the precedent Jefferson would be setting if his plan were enacted: it could only result in the “partial disenfranchisement” of naturalized citizens. Would this not apply to a Gallatin? Jefferson had not thought everything through. In any case, even with changes, his radical remedy was rejected by the Virginia House of Delegates.54
In May 1798 the Federalist-led Congress moved in a darker direction when it settled on a plan that would give Federalists the power to rid the country of the pesky Gallatin and others they perceived to be dangerous foreigners. A Francophobic impulse (or conspiracy, as Madison would have it) put the country on a war footing, at the same time as it made into suspects foreign-born persons whose political views threatened the administration. After the Alien Acts were adopted, the Federalists in Congress capitalized on their momentum and passed a Sedition Act, legitimizing the harassment and curtailing the liberties of native-born citizens.55
The Alien Acts represented the first act in the unrepublican episode that Jefferson famously dubbed “the reign of witches.”56 It would now take fourteen years to attain citizenship, he reported to Madison, owing to the fear that “a deluge of democrats” would reach America’s shores as a result of continued political conflict and confusion across the Atlantic. The Alien Enemies Act would give the president, during wartime, the power to identify, arrest, and deport any alien whom he considered a threat. For Madison, the new legislation was “a monster that must forever disgrace its parents,” and he believed (wrongly) that Washington would disapprove of the “hot-headed proceedings” of John Adams in taking the country in the direction of war. A number of Republicans in Congress, outnumbered by the Federalists and afraid of being associated with the French enemy, kept quiet. President Adams learned from his son John Quincy, then in Berlin, that the French had designs on American territories. Acting on this intelligence, and responding to the patriotic professions of various local militias, he authored a series of presidential statements, which were disseminated through the nation’s newspapers.57
The Sedition Act was the most extreme manifestation of panic politics. Its unusual provision was to declare that publishing, or even verbalizing, “scandalous and malicious” statements about the president or Congress would result in a stiff fine and imprisonment. The carefully worded statute did not, however, protect the vice president from libelous insults, which was presumably intentional. By June 1798 a good number of congressional Republicans were running scared, afraid of appearing unpatriotic. William Branch Giles went back to Virginia. Edward Livingston returned to New York. Only Gallatin remained in town to monitor the Federalists in their moment of uncontested power.58
Newspapers took up the slack. Carey’s United States’ Recorder, published in Philadelphia, right away understood the sedition legislation as a “nefarious” instrument meant to establish “presidential infallibility” while rendering the federal Constitution “a dead letter, or a piece of musty parchment.” It vowed: “The people may be gagged by alien and sedition bills, but at elections they will make their voice heard.” On the other side of the lopsided equation, the Columbian Centinel of Boston asked rhetorically: “Who can object to a Sedition Bill,” when American newspapermen were calling for subservience to France, and when such “wretches in this country … openly profess to wish the United States may be punished, and that all may terminate to the glory of France.”59
To combat the threat to national security, President Adams established a provisional army, for which he planned to enlist tens of thousands of men. He dutifully named George Washington as commander. To Adams’s dismay, Washington said he would come out of retirement only if Hamilton were his second in command, at the rank of major general. Adams despised Hamilton for what he described as “debauched Morals” as well as a limitless ambition, but he swallowed his pride. It could not have been easy. He now had a Hamiltonian cabinet and a Hamiltonian army, while attempting to exercise executive authority over events that were spiraling out of control. Adams wanted his old friend Henry Knox, the former secretary of war, to be Hamilton’s superior, and Knox himself expressed disgust with Hamilton’s grand maneuver. But neither Hamilton nor Washington would accept an arrangement whereby Hamilton would have to answer to anyone—for it was unlikely that Washington would ever take the field.
Demonstrating just how solitary Adams’s voice was, he had intended to appoint battle-hardened Aaron Burr a brigadier general, but Hamilton’s men squelched the appointment. Before long Federalist mainstays began to ask what Hamilton’s real motives were. Jefferson wryly called him “our Buonaparte,” and Adams, in private, likened him to Julius Caesar. Yet as much as he longed to ride at the head of an expanded army, Hamilton did not instigate, or even advocate, the Alien and Sedition Acts. He worried about a political backlash, and he felt that the common law would be plenty effective in putting anti-administration newspapers out of business.60
Able to resist expressing sympathy for John Adams under any circumstances, Madison scoffed at the notion, then in vogue, that the president deserved credit for keeping the problem from getting worse. When the “infatuation of the moment” was past, Madison told Jefferson, it would be clear that the executive had deviously manipulated the public into doing what the government wanted. “Perhaps it is a universal truth,” he argued most forcefully, “that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.” Keeping America safe was a sham justification for measures denying free speech, consolidating power, and impeding open debate in Congress.61
The undeclared war that followed became known to history as the Quasi-War. A few naval engagements between U.S. and French warships occurred, but casualties were light. The provisional army never fought. The most important result of the Quasi-War was the executive’s consolidation of power in the conduct of foreign policy. Congress could request documents relating to diplomatic instructions, but it could do little to prevent any administration from charting a belligerent course. As things turned out, though, after the president returned to Massachusetts in July and was removed from the pressure put on him by his Hamiltonian cabinet, he determined that France had no intention of invading America and that it would be wise to restart diplomacy.
For Republicans, however, the summer did not pass quietly. In late June anticipation was already high as to the Federalists’ plans to shut down dissent. Senator Henry Tazewell of Virginia had a dark sense of humor, which he expressed when he sent Madison a copy of the just-published Sedition Bill. He presumed that once Jefferson left Philadelphia and returned to Virginia, Madison would need a reliable source of news. Tazewell volunteered to be that source: “I will send you an account of whatever may occur that can be interesting,” he said, “if I
am not guillotined.”62
Madison indulged his taste for humor. In advance of the Fourth of July 1798, he drafted a long list of mock toasts. It was a tradition in every town in America to lift glasses to the president, the Union, the Constitution, and other national symbols. Lists of toasts were published in the newspapers. Madison had his fun with the standard format: “The P. & V.P. may the [latter] never feel the passion of J.A. nor the [former] forsaken by the philosophy of T.J.” Next, the ironist lifted his metaphorical glass to the Sedition Law: “The freedom of speech; May it strike its enemies dumb.” And fixing on solid ground the loftiest of Americans: “G.W. the hero of liberty. May his enemies have the justice to applaud his virtues, and his friends the candor to acknowledge his error.” This was as close as one could come before crossing the line with respect to the esteemed Washington.63
Madison’s toasts never made it into print. While Jefferson was on a visit to Montpelier during that first week of July, a paper in Boston, the heart of Adams country, celebrated “that deathless instrument, the Declaration of American independence” by affirming that its inspired author, “the immortal Jefferson,” deserved praise for the inspiration he brought to its composition.64 Bache’s paper added an impressive two hundred new subscribers in response to the enactment of the Sedition Law. “Thus,” the editor wrote of those who sought to enfeeble him, “the daring hand of persecution already counteracts its own designs.” Bache’s exuberance did not last. After years of polemical writing, Benjamin Franklin’s undiplomatic grandson was finally indicted for seditious libel. But in September 1798, a month before he was scheduled for trial, the defendant contracted yellow fever and died. By coincidence, one week later John Fenno, the Federalists’ favorite editor, died too.65
It was not President Adams so much as his abrasive secretary of state, Timothy Pickering, who spearheaded the prosecutions for seditious libel. Pickering lumped together all Irish as dangerous elements and recommended drastic restrictions on immigration. Among those put on trial during the second half of the Adams administration were the Scottish pamphleteer James T. Callender, the Irish newspaperman John Daly Burk, and the fireplace-tong-wielding Matthew Lyon of Vermont. For libeling the president, Callender was fined $200 and sentenced to nine months in prison. Burk was bullied into shutting down his presses, as Aaron Burr sent him to the friendlier clime of Virginia to avoid deportation. Lyon, who bore a noticeable Irish accent, was fined $1,000 and jailed for four months after writing that the executive had “an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” He was reelected to Congress from his cell, and Jefferson was among those in Philadelphia who made contributions to the fund that paid Lyon’s fine. Lyon had become a symbol in America of the price one paid for being outrageous in the act of seizing one’s liberty.66
“The Residuary Mass of Right”
Edmund Pendleton’s nephew John Taylor had left the U.S. Senate and was now a Virginia assemblyman. When he assured Taylor in June 1798 that “the reign of witches” would not last, Jefferson knew that he and Madison would be brainstorming shortly. After their days together at Montpelier on Jefferson’s way home from Philadelphia, they determined to spend the Virginia summer drafting countermeasures to the clearly unconstitutional Alien and Sedition Acts.
Their answer became known as the Kentucky and Virginia Resolutions. Jefferson had originally intended to send his draft to the North Carolina legislature. But the fortuitous appearance in central Virginia of Kentucky’s John Breckinridge led Wilson Cary Nicholas, to whom Jefferson had confided the work, to change the plan. As Kentucky was already actively protesting the Alien and Sedition laws, Breckinridge assured Nicholas that his state would be a more receptive forum in which to pass judgment on the administration’s excesses. Jefferson agreed to the Kentucky strategy.
Breckinridge’s credentials were strong. Jefferson’s neighbors could attest to his character. He was born in Augusta County, Virginia, west of Albemarle (as the Reverend James Madison was), and had attended the College of William and Mary. In 1785, when Jefferson was in Paris, Breckinridge opened a law practice in Charlottesville, relocating to Kentucky in 1793, where he served as the state’s attorney general for two years before entering the state House of Representatives. He had already drafted resolutions and public protests against the Alien and Sedition Acts before he made his trip to Virginia. His major ally in this effort was the brother of Wilson Cary Nicholas.67
By late October, after reviewing Jefferson’s resolutions, Madison had prepared a separate text for Virginia. The resolutions were presented to the two state legislatures by Breckinridge and Taylor, respectively, so as to shield the actual authors. Secrecy was maintained; it would be a good many years before Madison and Jefferson were publicly identified with the texts.68 Despite their well-laid plans, rumors circulated almost immediately that Jefferson was behind both the Kentucky and Virginia Resolutions. Boston’s Columbian Centinel reported: “The disorganizing Resolutions introduced into the Legislature of Virginia, have passed.—And—Mr. Jefferson has arrived in Philadelphia.”69
Jefferson’s underlying principle was laid out in the opening sentence of the Kentucky Resolutions: the United States was “not united on the principle of unlimited submission to the general government.” As equal parties to the federal compact, the individual states had delegated certain enumerated powers to the federal government, while reserving to themselves “the residuary mass of right to their own self-government.” If the federal government tried to exercise “undelegated powers,” its actions were immediately to be considered “unauthoritative, void, and of no force.” Therefore, the power to decide what those delegated powers were could not reside in the federal government; each state had “an equal right to judge for itself.”70
The theory had much in common with the Declaration of Independence. Recall that Jefferson conceived of the Declaration as a kind of divorce petition, in which the natural rights of one of the parties within the British-American union (the colonies) had been violated repeatedly. The condition of the states in the federal Union was similar to that of the colonies in that they were united by compact with a central authority. In ratifying the Constitution, each state had given its consent, but as with any compact or contract, it could be annulled or amended. A breach of contract, a violation of its specific terms—in this case the federal government’s use of an unauthorized power—meant the state could refuse to abide by that part of the contract which the other party had twisted and corrupted. Nullification was a form of veto power, normally reserved for the executive. But as Jefferson saw it, that power now belonged to each of the individual states and was to be exercised solely within its jurisdiction.71
Jefferson had retreated to his earlier thinking on the division between federal and state functions, which he had sketched out to Madison in 1786. At that time he had said: “To make us one nation as to foreign concerns, and keep us distinct in domestic ones, gives the outline of the proper division of power between the general and particular governments.”72 Now he was insisting that each state warranted a powerful form of redress: to declare any law null and void that compromised its ability to protect the rights of its citizens. Because the states had a natural right to nullify on their own authority, any state that lost its autonomy sacrificed itself to the dominion of another. Like an individual, a state was either free and independent or in a state of submission. There could be no middle ground.73
For Jefferson, a strict division between federal and state authority had to be preserved. Any trespass of this rigid boundary was a slippery slope. The Alien and Sedition laws were the beginning of a long train of abuses that would lead from deportation of the “friendless alien” to persecution of the average citizen. The central government could do anything it wanted if the states did not have some check on its authority. It appeared to him that if Congress could claim any power, or transfer its authority to the president or any other person, then that person, as “the accuser, counsel,
judge and jury,” could turn “suspicion” into “evidence,” reduce anyone to an “Outlaw,” and place anyone under the “absolute dominion of one man.” In short, without a check, the United States could become a dictatorship.
Part of this thinking was personal. Certain Federalists were looking for any excuse to turn Jefferson into an “Outlaw.” He hoped to make Virginia his sanctuary, a legal fortress, his protection from their predatory grasp. He wanted the Constitution to be a straightjacket, capable of undermining any attempt at a power grab by government officials. Constitutional checks had no appreciable force in the current political environment, or as Jefferson put it: “The barrier of the constitution thus swept away from us, no rampart remains against the passions and the power of a majority in Congress.” The states’ last defense was to nullify illegitimate laws.
Madison began the Virginia Resolutions by repeating some of Jefferson’s ideas. He agreed that the federal government was based on a compact “to which the states are parties.” As the Constitution was limited by “enumerated powers,” if the government engaged in 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 duty bound, to interpose for arresting the progress of the evil.” After three opening paragraphs, all nodding in Jefferson’s direction, Madison diverged somewhat. His constitutional argument focused on “forced constructions” of the charter—Hamilton’s misreading of the “necessary and proper” clause that pointed toward a consolidation of the states into “one sovereignty.”
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