by Carol Berkin
Republicans fired back. What evidence was there of an imminent threat of insurrection? And where exactly did the threat come from? Virginia’s John Nicholas observed somewhat wryly that the Federalists seemed more afraid of speeches and letters by their fellow congressmen than those newspaper essays and editorials the bill was intended to suppress. He was opposed, he said, to creating a “domestic tyranny,” for he had confidence that the people were competent to judge for themselves the truth or falsehood of what they read. Other Republicans warned that bills like this one would actually drive people into opposition to the government. Like Nicholas, they were confident the people had good judgment. And if left alone, the press was self-correcting; if one paper said something untrue, another would be there to point it out.27
The bigger question remained: Did the federal government have the authority to suppress the supposed threat? Federalists said yes. North Carolina’s Nathaniel Macon, a devoted follower of Thomas Jefferson and a pithy commentator on political issues, conceded that the protection of the federal government might indeed be necessary; however, the responsibility for that protection could just as easily fall to the state governments. In response, the often verbose Otis proved equally pithy: that notion, he said, was “absurd.”28
Federalist members of the House shared Otis’s cynicism. In past crises, states had proven less than dependable in protecting the authority of the federal government. Pennsylvania had allowed the whiskey rebels great latitude. Kentucky authorities had turned a blind eye when their citizens ignored the excise law. And the governors of Kentucky and South Carolina had allowed French intrigues against America’s allies and had permitted French officials to mock the federal government’s policy of neutrality. To Federalists like Otis, state governments could not be trusted to uphold the Constitution.
Republicans pressed their opposition to the sedition bill, asking where, specifically, the authority to pass such an act was to be found in the Constitution. Nathaniel Macon said no such authority could be found. The Constitution did grant the federal government the power to define and punish piracies and felonies committed on the high seas and offenses against the law of nations, but it had been given “no power to define any other crime whatsoever.” Hence, his suggested solution remained: if the federal government was in need of protection, it must rely on the states to protect it from sedition. Federalists dismissed Macon’s argument and ignored his solution. The Constitution might not have explicitly granted the power to punish sedition, but it had given the federal government the power to make all laws necessary to execute the powers that were enumerated within it. Without a Sedition Act, they again asserted, there would be such chaos and tumult that the government could not fulfill its duties.29
Republicans doubted this reading of the necessary and proper clause, but they had no doubt the Constitution explicitly guaranteed freedom of speech and the press. They were certain that the sedition bill presented a clear challenge to the First Amendment. Federalists dismissed the claim angrily. Connecticut’s Samuel Dana articulated their position when he asked whether anyone really believed that the Bill of Rights intended to “guarantee as a sacred principle the liberty of lying against the government?”30
Once again, these arguments brought to the surface the profound, long-standing differences over the nature of the Union. Albert Gallatin voiced the Republican understanding that “the Government of the Union was not a consolidated one, possessing general power; it was only a federal one, vested with specific powers.” Only a decade before, Antifederalists had warned that the men who drafted the Constitution intended to create a consolidated government, one that would enjoy dominion over the states. Now, in 1798, Republican leaders from Gallatin to Madison to Jefferson, men protective of the sovereignty of their individual states and fearful of losing that sovereignty to a single, unrestrained government, insisted that the Constitution was only a compact among the states, not an act of consolidation.31
In the end, Livingston’s motion to reject the bill failed by a vote of 47 to 36. On July 9 the House resolved itself once again into a committee of the whole, and, after a series of amendments was proposed, the bill was ordered read for a third time on July 10. As the debate wound down, it was Harrison Gray Otis, the nephew of a Massachusetts icon who gave no quarter to the British government in the 1770s, who recognized the significance of the moment. Otis looked beyond the bitter disagreements to comment on a shared acceptance of the primacy of the Constitution. Both sides, after all, had defined their position within the framework of that document. After a long speech by his opponent John Nicholas, Otis remarked that Nicholas’s “professions of attachment to the Constitution… are certainly honorable to him; and he could not believe that an attachment so deeply engrafted, as he states his to be, would be shaken by this bill.” The battleground had definitively shifted since the clashes over ratification, moving from whether to support the Constitution to who had the power to interpret its meaning. In this instance, a vote of 44 to 41 on July 10 gave that power to the Federalists.32
Of the forty-one men who voted against what would quickly become known as the Sedition Act, only three were Federalists. Twenty-nine came from southern or southwestern states and six from Pennsylvania, a state dominated by Republicans and, of course, the home of the most violent whiskey rebels. These were regions long lost to the party of Washington and Hamilton. But the remaining six nays came from a combination of New York, Massachusetts, and Vermont Republicans, and they reflected the rising fortunes of the party in the northeast. It was this incursion into their heartland, perhaps more than any other danger, that the Federalists hoped the Sedition Act would halt.
In its final form, An Act in Addition to the Act, Entitled An Act for the Punishment of Certain Crimes Against the United States declared it a high misdemeanor to do any of the following: unlawfully combine or conspire together with the intent to oppose measures of the government of the United States; impede the operation of any law of the United States; intimidate or prevent any person holding a place or office in or under the government of the United States from performing his trust or duty; or to counsel, advise, or attempt to procure insurrection, riot, unlawful assembly, or a combination of them, whether these efforts were successful or not. If convicted, the guilty party or parties would be punished by a fine not exceeding $5,000 and by imprisonment for a term not less than six months nor more than five years. The court could also demand sureties for the offender’s good behavior. Section 2 of the act made it illegal to write, print, utter, or publish or cause to be written anything false, scandalous, and malicious against the government of the United States, the president of the United States, or either house of Congress. Anyone who knowingly and willingly assisted in these acts would also be subject to arrest and trial. No person could bring the government, president, or Congress into contempt or disrepute or excite against them the hatred of the good people of the United States. No person could excite any unlawful combinations to oppose or resist any law of the United States or any act of the president done in pursuance of such laws or of the powers vested in him by the Constitution. No one could oppose, through the written or spoken word, any such law or act, nor could anyone aid, encourage, or abet any hostile designs of any foreign nation against the United States, its people, or its government. If convicted of any such crime, a person would be punished with a fine not to exceed $2,000 and by imprisonment not to exceed two years. In section 3, the defendant was given the right to use truth as a defense. The jury trying the case had the right to determine the law and the fact, under the direction of the court. The final section declared that the act would continue in force until the third day of March 1801—the day John Adams’s first term came to an end—although any pending prosecutions and punishments would remain in force.33
The breadth and depth of the act was impressive—and, to Republicans, draconian. They pointed to the fact that, under its terms, anyone who simply read seditious newspapers or declared support for their
sentiments and opinions could be found guilty of a high misdemeanor. Federalists, however, emphasized the act’s liberality, for it guaranteed truth as a defense, a provision that the common law did not allow. The Federalists also argued that nothing in the act abridged the freedom of the press; this freedom, they insisted, applied only to the protection of writers from censorship before publication. Regardless of their evaluation of the law, both parties realized that the passage of the Sedition Act could severely limit the Republicans’ ability to expand public support through the press.
3
“Much good may… result from the investigation of Political heresies.”
—George Washington, June 1798
ON JULY 14, 1798, the House received the news that the president of the United States had approved and signed the Sedition Act. Reaction by leaders of both parties was predictably partisan. Vice President Jefferson, who early on had predicted the government would take steps to suppress the Republican press, declared the law “so palpably in the teeth of the constitution as to shew they mean to pay no respect to it.” But Washington, who had been a target of Bache and company, had already given his imprimatur for a crackdown on the Republican press. Writing to Judge Alexander Addison of western Pennsylvania on June 3, the former president had observed that “much good may, & I am persuaded will result, from the investigation of Political heresies, when the propagation of them is intended, evidently, to mislead the multitude.”34
The “investigation of Political heresies” that Washington considered wise had actually begun even before the debates over the sedition bill ended. John Adams and his secretary of state Timothy Pickering had been so eager to rid themselves of the constant, often vicious attacks by Bache that they had not waited for the Sedition Act to make its way to the president’s desk. Two weeks before the president signed the act into law, the Adams administration arrested Benjamin Bache in a common law, rather than a statutory, prosecution for seditious libel. The grand jury indictment accused the man Adams considered his bête noire of “libeling the President and the Executive Government, in a manner trending to excite sedition, and opposition to the laws, by sundry publications and republications.” The possibility of the more serious charge of treason also arose, based on his publication of a letter from a French official before the administration had an opportunity to make it public. The assumption was that Bache possessed the correspondence because he was a French spy, but the government could not muster evidence to make the treason charge stick. Instead, Bache was charged with seditious libel and released on bail until the October term of the federal circuit court. Hearing of his arrest, the Republican Boston Gazette sounded a death knoll for liberty. “The period is now at hand when it will be a question difficult to determine whether there is more safety and liberty to be enjoyed at Constantinople or Philadelphia.”35
Throughout the summer, Bache nevertheless continued to attack the president and the administration in the pages of the Aurora. Yet when the court sat once more in Philadelphia, the Bache trial was not on its docket. Nothing had ever deterred Bache from frequently baseless and usually hyperbolic partisan journalism. He had kept his paper going despite the death threats he and his wife Peggy had received, despite mob vandalism of his home, and despite physical assaults by the son of a rival newspaper editor and the son of a local shipbuilder. But he could not ward off or stand resolute in the face of the yellow fever that had become a familiar summer scourge of Philadelphia. Benjamin Franklin Bache died on September 10, 1798, silenced not by a jury but by a painful fatal disease. The Aurora, however, lived on, operated by Bache’s widow and by his assistant, the Irish radical William Duane.36
Pickering initiated two other common law cases against newspaper editors early in July. On July 6, John Daly Burk, editor of the influential New York Time-Piece, was arrested and charged with seditious libel. Burk, who had been born in Ireland in 1775, fled to America in 1796 as a wanted man as a result of a futile attempt to rescue a political prisoner from execution. He had managed to elude the pursuing authorities by disguising himself in the clothes of a woman he met in a bookstore. In appreciation for her help, he took her last name as his middle name. Only two years after arriving in the United States, Burk became the editor of the Time-Piece, a paper critical of Adams and his foreign policies. Three weeks into his editorship, Burk accused the president of deliberately falsifying a letter to Congress from Elbridge Gerry to promote a war with France.
Pickering originally initiated an inquiry into Burk’s citizenship status, hoping that the editor might be a good subject for deportation under the Alien Friends Act. But he wound up having Burk arrested and charged with sedition under the common law. With the help of donations from prominent New York Republicans, including Aaron Burr, Burk posted the $2,000 bail and was free until his case came to court in October. In the interim, he continued to publish attacks on the administration until his newspaper went out of business in September. October came and went with no trial, and, sometime in 1799, Burk offered to end the case out of court. He vowed to leave the country if the charges were dismissed and his bail money returned. Adams agreed to these terms. Burk, however, did not honor his promise; instead, he went to Virginia where he lived under an assumed name, got a job as an academic, and waited until Jefferson was elected president to reveal his identity.37
Bache and Burk edited urban newspapers with considerable influence on popular opinion, but Pickering’s third target that July, William Durrell, published an obscure upstate New York paper called the Mount Pleasant Register. Durrell had attracted Pickering’s attention when he reprinted a paragraph from a neighboring Ulster County paper that criticized Adams. On July 17, three days after the president signed the sedition bill into law, the secretary of state had Durrell taken into custody. Durrell was not formally indicted until September, when he pleaded guilty before a US circuit court to having published “false scandalous malicious and defamatory libel of and concerning John Adams.” Because the action he was indicted for occurred before the Sedition Act passed, Durrell was charged under common law doctrine; the truth contained in the paragraph was not, therefore, a defense. Even before his indictment, Durrell had closed down his press, a decision probably prompted by the $4,000 bail he had been required to post. For two years, he lived under the threat of a trial and without employment of any kind. When at last, in 1800, he appeared before a judge, Durrell pleaded for clemency as the sole support of his family. The judge was apparently unmoved by Durrell’s circumstances and sentenced him to four months in jail and a $50 fine. He was to remain in jail until the fine was paid and he had posted $2,000 in security for good behavior. Adams, however, pardoned Durrell, and the former editor was released after serving two weeks of his sentence.38
On July 30, the government brought the first case to be tried under the Sedition Act. The man indicted was William Duane, the successor to Benjamin Bache at the Aurora. Duane was an American citizen, born in Vermont in 1760, whose widowed mother took him to Ireland when he was fourteen. He eventually returned to the United States and took a job at Bache’s newspaper. After Bache’s death, Duane carried on the partisan attacks that had made the Aurora such a thorn in the side of the administration. Duane was indicted once again in February 1799, this time for circulating a petition calling for the repeal of the Alien Friends Act. In the indictment, he was accused of “deliberately procuring an assembly of people with the determination of subverting the government of the US.” It took a Philadelphia jury only thirty minutes to acquit Duane, either a sign that an impartial body believed the government had not made its case or of the support for the Republican Party in the nation’s capital. A month later, however, a band of thirty fervent Federalists, all members of Philadelphia’s volunteer cavalry, engaged in vigilante justice worthy of frontier whiskey rebels. They dragged Duane out of his office and beat and whipped him unconscious.
Despite the legal and physical attacks, Duane remained as dedicated to his mission as his predecessor
had been. He continued to wage a print war on the Adams administration, claiming in July 1799 that the British exercised undue and improper influence in Pickering’s State Department. Before the month was out, he found himself indicted a third time. His trial began on October 15, 1799; the case was heard by George Washington’s brother, associate Supreme Court justice Bushrod Washington, and by District Judge Richard Peters. But, before the case went to the jury, the trial was suspended for several months. Although the government cited “procedural reasons” for the suspension, the actual cause appeared to be that Duane had evidence to back up his accusations: a letter from John Adams to Tench Coxe that allegedly impugned the integrity of President Washington. The letter, written in May 1792, said that “our new ambassador [Thomas Pinckney] has many powerful old friends in England.” Adams added his suspicion that the Pinckney family had played a role in limiting his own tenure as ambassador to Great Britain to create the opportunity for a Pinckney to be appointed to the post. “Knowing as I do the long intrigues, and suspecting as I do, much British influence in the appointment,” Adams told Coxe, who was then undersecretary of the treasury, it would be wise to “keep a vigilant eye upon them.” Suspicion was one thing, however, and proof was another; the letter contained no real proof.39
Washington’s response to Duane’s use of the letter captured the genuine frustration—and resentment—Federalists had for the unrestrained criticism they faced in the Republican press. In a letter to Charles Cotesworth Pinckney, Washington vented that frustration, asking, “When—where—and how such things are to terminate.” But the real question, Washington conceded in a letter to Pickering, was how to effectively respond to charges like Duane’s of bribery at the highest level of government. Should we be “quiescent under the direct charge of bribery?” To do so, Washington told Pickering, would have dangerous consequences. And yet, Washington continued, perhaps the direct frontal attack made possible by the Sedition Act was a poor strategy. “I am persuaded that if a rope, a little longer had been given [Duane], he would have hung himself in something worse.”40