by Carol Berkin
Cooper chose to serve as his own counsel. As part of his defense, he demanded to subpoena Adams, Timothy Pickering, Pickering’s clerk, and a member of Congress. Justice Samuel Chase, presiding over the trial, was astonished at the notion of the president of the United States being cross-examined and refused to allow it. Cooper, however, was nonplussed; Was the president above the law? he asked the judge. Antagonizing the judge did not help him. Chase repeatedly challenged Cooper and in his charge to the jury declared that Cooper was attempting to poison the minds of the people. It took the jury less than an hour to return a guilty verdict. Thomas Cooper was sentenced to six months in prison and fined $600. After his release, he would be required to post a $2,000 surety bond for good behavior.
Pickering, who had sat in the courtroom throughout the trial, was surely pleased with the verdict. Cooper, an intelligent man and a gifted writer, was a particularly dangerous foe of the administration; Pickering believed his conviction and imprisonment sent a stern message to the partisan press. In reality, however, the Cooper case testified to the futility of the Sedition Act. Once in jail, Cooper passed the days writing political letters and continuing his assault on Federalist policies. When he was released in October 1800, the totally unreformed man went to New York City where he called upon the courts to prosecute Alexander Hamilton for sedition, based on the former secretary of the treasury’s lengthy, and damning, 1800 account of the failures of the Adams administration.63
A month after Thomas Cooper was sentenced to jail, James Thomson Callender was indicted by a grand jury in Virginia. The Callender indictment was perhaps the most important of all the cases tried under the Sedition Act. Unlike Matthew Lyon or Cooper, Callender stood for few political or ethical principles; he was a libelist for hire, with no loyalty to any party or to any patron. His was the voice the Federalists most desperately wanted to banish from public discourse.
Callender was born in Scotland. At the age of thirty-four he published Political Progress in Britain, which purported to be an “impartial history of abuses” in the British government. This led to an indictment for sedition and prompted him to flee to America. Settling in Philadelphia, he worked as a recorder of the debates in the House of Representatives. In 1797, he exposed the affair between Alexander Hamilton and Maria Reynolds to the press. While the Sedition Act was being debated, a cautious Callender decided to protect himself from expulsion by becoming a US citizen. But when Benjamin Bache was indicted, Callender decided it was best to leave Philadelphia. A Federalist newspaper in the nation’s capital sarcastically announced his departure, saying, “Envoy Callender left this city on a tour to the westward—destination unknown.” But Callender had not gone west; he had gone south to Virginia.
Callender was initially welcomed and assisted by Virginia Republicans, including George Mason and Thomas Jefferson. In 1800 he published a pamphlet titled The Prospect Before Us, a ringing endorsement of Jefferson’s bid for the presidency, which Callender cavalierly forwarded to John Adams. In it, Callender described the Adams administration as “one continued tempest of malignant passions,” claiming that Adams “never opened his lips, or lifted his pen without threatening and scolding.” The choice in the upcoming presidential election, he declared, was between “Adams and beggary, and Jefferson, peace and competency.” By May 1800 he was under indictment by the US circuit court.
While Callender’s excellent lawyers fought a losing battle with Justice Samuel Chase, John Marshall sat in the courtroom, listening with satisfaction. In his instructions to the jury, Chase rejected the defense’s argument that the jury could consider the constitutionality of a law. It came as no surprise that Callender was convicted or that Chase sentenced him to a relatively long incarceration—nine months—and to a $200 fine. Yet, like Cooper, Callender used his time in jail to continue his attack on the government. While serving his term, he completed a second volume of The Prospect, in which he called Justice Chase “the most detestable and detested rascal in the state of Maryland.” Callender emerged from prison on March 3, 1801, the same day that the Sedition Act expired.
Callender’s story did not end well. As a free man, he soon applied to President Jefferson for appointment as postmaster of Richmond. Jefferson, who now considered Callender too radical and too divisive, refused. In response, Callender abandoned all loyalty to the Republican Party and its president, and in 1802 he published a report that Jefferson kept a slave mistress and had children by her. By 1803, Callender was a broken man, consumed with bitterness and troubled by alcoholism. On July 17, 1803, a witness reported seeing him in a drunken stupor; by the end of the day Jefferson’s ally-turned-nemesis had drowned in the James River.64
Epilogue
IN RETROSPECT, THE Federalists could claim little success in their determined effort to silence the opposition press and punish all those whose lies and exaggerations diminished the administration in the eyes of the public. In total, only twenty-one arrests were made, and only eighteen of these led to indictments. Three of those indictments, including Bache’s, were under existing common law rather than the Sedition Act. Only eleven of the seventeen men and one woman indicted actually went to trial, and most of the editors, released on bail, continued to publish their newspapers in the interim. Those sent to prison spent their time writing damning accounts of the conduct of their trials and continuing their fierce criticisms of the administration’s war-preparedness policies. They had been incarcerated but not silenced.
The vast majority of Republican newspaper editors escaped prosecution under the Sedition Act, although some of the most influential partisan writers and editors were among those successfully targeted by the Adams administration. The strategy devised by Pickering and his supporters, if a strategy could be said to exist, was to force the closure of the influential newspapers whose editorials and essays were frequently reprinted—and thus disseminated—by small, local newspapers across the country. If the Aurora and the Time-Piece could be forced to close up shop, it was thought, the arguments made by Benjamin Bache and John Daly Burk would no longer find their way into the small communities outside Philadelphia and New York. Occasionally, the administration did prove willing to prosecute editors of smaller presses, using them as object lessons of the dangers of attacking the federal government and its officers. It was also sometimes willing to make examples of ordinary citizens who insulted the character of the president or members of his administration. But the main targets were men like Bache, Duane, and Callender. Perhaps the most telling point about these prosecutions is that all but one of the men targeted operated in the Northeast. This is evidence that the Federalists had conceded the South to the opposition but hoped to prevent its spread in New England and the middle states. Despite these efforts, Pickering and company failed to prevent the growth of the Republican Party. It is likely that this failure of the Sedition Act, rather than the response to its passage, played some role in the triumph of the opposition in 1800.
The failure of the Sedition Act to suppress free speech was an ironic tribute to the Federalists’ respect for due process and the restraints this respect imposed on them. Although a judge like Samuel Chase might take actions that hampered the defense strategy of the accused, there was no attempt to replace the legal process that allowed the defendant the right to know the charges against him, to win release on bail, to have legal counsel, and to be judged by a jury of his peers. There would be no executions, no wholesale destruction of presses, no censorship of publication—the abuses John Marshall had observed in Paris in 1798 would not be replicated in the United States under the Federalists.
The Republicans fared no better with their precipitous move to define the nature of the Constitution and delineate the powers of its government. The response to the Virginia and Kentucky Resolutions by the remaining state governments was overwhelmingly negative. Although opposition was not unanimous in most states, the fact that the Federalists were able, in every instance, to ensure that their legislatures rejected Jeffer
son and Madison’s challenge is evidence that the Federalists remained the dominant force in American politics until the end of the decade. Neither the Alien and Sedition Acts nor the Virginia and Kentucky Resolutions were decisive in determining the Republican victory in the election of 1800; this transfer of power owed more to the two parties’ differing approaches to American voters: throughout the 1790s, Federalists had sought only affirmation from these voters; Republicans offered them a role as active participants in the nation’s politics.
Perhaps the success or the failure of these two efforts is not the most significant measure of their importance. Instead, that importance lies in the acceptance by both parties of the legitimacy of the Constitution and the federal government it created. Only a decade earlier, the Antifederalist-Federalist battle had been over whether the Constitution ought to be accepted as the establishment of a lasting political relationship among the states. Even after the Constitution was ratified, acceptance of its legitimacy was not complete. It was possible in 1794 for western Pennsylvanians to reject the right of the federal government to tax them and for the people of Kentucky to simply ignore that taxation without bothering to defend their right to do so. But in 1798, the leaders of the opposition party and the legislatures of two states considered it necessary to do more than reject or ignore particular legislation. Instead they felt compelled to offer an interpretation of the Constitution itself. Their protest against the Alien and Sedition Acts operated within the context of a loyalty to the Constitution and to the government it created. The resolutions passed by the legislatures of Kentucky and Virginia were not a challenge to the Constitution but a challenge to a particular interpretation of that document; they were not challenging the federal government but a particular set of alleged abuses of its powers. At issue was how to interpret the relationship the Constitution created between a federal government and the states, not whether it had the right to establish one. Thus, “nullification” and “interposition” were offered as a remedy, not a renunciation. The men who wrote these resolutions and the men who approved them saw themselves as loyal citizens of the Union. The tragedy of the Republicans was that they did not realize the destructive potential these remedies had if they became uncoupled from a loyalty to this union of the states.
The tragedy of the Federalists, meanwhile, was that they did not recognize their mission had been accomplished: the government they had designed in 1787 was no longer an experiment but an institution. Federalists misread the challenges to their leadership late in the decade as yet more in the long line of challenges to the legitimacy of the government and to its survival. They read the repressive legislation they passed as an essential defense of the Constitution, not of the men who held the reins of government or their policies. Republicans saw the Alien and Sedition Acts as their opponents’ desperate effort to remain in power. Like Samuel Adams, who believed the American Revolution was necessary to save the principles of the British Constitution from a corrupt king and Parliament, Thomas Jefferson would see himself, and his party, as crusaders to restore the principles they believed were embodied by the Constitution.
CONCLUSION
IN THE SAME inaugural address to the First Federal Congress that introduced this book, George Washington showed himself keenly aware of the weighty responsibilities he and the Congress faced together. It was, he said, his duty to preside over the “preservation of the sacred fire of liberty,” a fire that he, like all Federalists, believed depended on the survival of the Constitution and the federal government it created. He knew as well as they did that many Americans had opposed this new federal government and that their voices had still not been silenced. He could only pray that the members of this government would have “the enlarged views, the temperate consultations, and the wise measures” needed for it to succeed. Over the course of the next eight years, Washington would have reason to wonder whether that success was a chimera, existing only in his imagination and impossible in the realities of the decade ahead.
Not all the measures taken by Washington, Adams, and the Federalists were wise, and not all of their consultations were temperate. And although men like Alexander Hamilton had what Washington would surely consider enlarged views, the Pickerings and Wolcotts of his party did not. Nevertheless, success did not prove an impossible dream, and both the Constitution and the federal government survived the crises of the 1790s—and the new crises that would follow for two centuries.
The belief of men like Washington and Hamilton that the Constitution and its government was the best, if not the only, means to save the Republic lay at the core of their nationalism. They were certain that the states, acting as separate sovereign governments, could not effectively negotiate with foreign nations, protect and extend the country’s borders, or unleash the economic potential of a young and ambitious population blessed with the natural resources available to them. This is what drove them to replace the loose “league of friendship” created by the Articles of Confederation with an “energetic government” whose authority came not from the states but from the American people. They never doubted that the Republic needed such a government, and they saw themselves as its guardians and its champions. Leading Federalists like Hamilton were simultaneously anxious about the American people’s full acceptance of this new government and full of optimism about what it could achieve with their support. America, Hamilton told a British ambassador, was “a young and a growing Empire, with much Enterprize and vigour.” To the Federalists’ relief and pride, the bond between the people and the government, the citizens and their constitution, grew stronger with each new crisis they faced.1
The four crises covered in this book challenged different aspects of federal authority and legitimacy. The Whiskey Rebellion, for example, denied the federal government’s authority to tax its citizens. Its participants laid claim to the legacy of the American Revolution, with its justification of armed rebellion against oppression. They co-opted the symbols of that revolution, but the analogy they drew was false: the government they opposed gave them a vote and a voice in the legislature that passed the excise tax. In many ways, of course, the response of the Kentucky distillers was an even greater blow to the sovereignty of the federal government; they did not bother to rebel, they simply ignored the law. Washington’s handling of the crisis carried a critical message: the federal government was neither arbitrary nor tyrannical. The men placed in charge of it respected the law and the rights of the people, but they would fulfill their obligations to protect government agents and enforce the legislation passed by the people’s representatives. The public accepted this message in large part because of the widespread admiration and love Americans felt for Washington himself. Their trust in him had not yet transferred to a trust in the office he held; that shift came in the next crisis, the Genet affair.
In the Genet affair, the exclusive authority of the federal government to set foreign policy was challenged. When France attempted to turn the United States into a satellite and a pawn in its war with Britain, Edmond Charles Genet and his government exposed the weakness of the United States on the world stage. Yet, despite his country’s military and naval weakness, Washington steadfastly asserted his policy of neutrality. In the end, Washington managed to frustrate Genet sufficiently that the impulsive and impolitic French minister embarrassed himself by threatening to make his appeal for assistance directly to the people. This flagrant rejection of protocol justified the American government’s request that Genet be recalled.
The Federalist resistance to what amounted to a recolonization of its country produced important gains for the government’s reputation at home. First, it reinforced the idea that it was the role of the federal government to represent American interests to the wider world. The kind of meddling in diplomacy by individual state governments like Kentucky and South Carolina would no longer be tolerated. Second, Genet’s threat to appeal directly to the people prompted an expression of support not simply for Washington but for the authority of th
e executive branch itself. The Constitution had placed foreign diplomacy and policy in the hands of the executive of the federal government. After the Genet affair, it was widely accepted that this, in fact, was where it belonged.
In the third crisis, the XYZ affair, one of the essential elements of nationalism emerged: the recognition of a shared American identity. In the face of the French government’s insult to American honor, citizens who had long thought of themselves primarily as citizens of their states now identified themselves as Americans. They met the French claim that they were a divided people with the assertion that, in fact, we are all Americans. The patriotic toast, “Millions for defense, but not one cent for tribute,” was thus more than a response to an insult; it was a pledge that no disagreement should ever run so deep as to permanently divide Americans from one another and no criticism they might have of their government should ever destroy their loyalty to it.
The Federalists were themselves the instigators of the fourth and final crisis examined in this book. Caught up in a combination of war fever and political self-interest, the Federalists moved to weaken their political opponents and solidify a guardianship of the Constitution and its government that they feared was slipping away. Their passage of the Alien and Sedition Acts prompted a challenge to federal authority mounted by the legislatures of Virginia and Kentucky. This crisis was clearly a party struggle between Federalists and Republicans, but there is no compelling evidence that the acts or the resolutions played a definitive role in the election of 1800 that ended Federalist hegemony.