1. Introduction of the Bill
As relations with France steadily deteriorated during the fall of1797and the winter of1797–1798, the Federalists became convinced that war with France was at hand.34The Federalist Congress hastened to prepare for the country’s defense, enacting a series of measures in the spring and early summer of1798. One statute authorized an increase in the token Army of3,500by an addi- tional12,000officers and men. President Adams promptly appointed former President Washington as its Commander and Alexander Hamilton, ever hun- gering for a dramatic military career, as Washington’s Inspector General and second in command. Other statutes authorized the creation of a new Navy and strengthened the new fleet with the authorization of armed American pri- vateers to harass and seize French shipping, a war loan, and new taxes to pay for the expense of the martial expenditures. In its remarkably comprehensive program, the Congress also terminated the treaties with France providing for amity, commerce, and alliance and banned commerce with France and its colonies.35
The Alien and Sedition Acts were the last among the essential “defensive”
measures in the Federalist preparations for war. The Alien Act authorizing the President to identify aliens dangerous to the state and to mark them for deportation was adopted on July 6,1798. Finally, with the adoption of the Sedition Act on July14,1798, the Federalist-dominated Congress com- pleted this whirlwind period of emergency legislation preparing for war with France.36
All that remained was the adoption of the much expected formal declara- tion of war with France. Thus, Abigail Adams in her intimate correspondence with her sister Mary Cranch wrote on June 25, 1798: “I expect Congress will decare [sic] war before they rise.”37 It was a very near thing. Jefferson reported that “he had heard” that at a caucus of House Federalists, the more
34 Although it is now apparent that this was a fantasy, some modern historians continue to defend the reality of the Federalists’ concern.SeeSamuel Eliot Morison,Oxford History of the American People349(1965) (“Fears of a French invasion were not unreasonable”).
35 1Stat.578(1798) (termination of French treaty).
36 1Stat.577(1798) (Alien Act);1Stat.596(1798) (Sedition Act).
37 Letter, Abigail Adams to Mary Cranch (June25,1798),New Letters of Abigail Adams196(Stewart Mitchell ed.1947) (hereinafterNew Letters). Although it is fascinating to speculate whether the letters of Abigal Adams “reflect the private thoughts and feelings of John Adams,” as suggested by Mitchell, or instead they represent her own independent thinking that had “great weight” with Adams in formulating his own views,” as suggested by Adams’s grandson, Charles Francis Adams, they are cited as providing a vivid insight into the unvarnished thinking of at least one prominent
The Enactment of the Sedition Act 83 extreme Federalists had come within five votes of carrying the day in the caucus to press for an immediate declaration of war by the Congress.38It was against this background that the Congress enacted the Sedition Act on July 14,1798. Even before this event, as we have seen, the impatient administra- tion had commenced a series of criminal libel prosecutions under federal common law.
Jefferson had seen it all coming. Two months before the introduction of the proposed Sedition Act in the Congress, he wrote to Madison: “There is now only wanting . . . a sedition bill, which we shall certainly see proposed.” Nor did he have any illusions as to the partisan use of the measure once enacted, observing: “The object of that is the suppression of the Whig presses.”39
In the end, however, Congress declined to adopt any declaration of war despite the pressure from the more aggressive Federalists.40The door was still open for President Adams to pursue further diplomatic efforts in a last-minute attempt to avoid war. As Abigail Adams wrote to her sister Mary on July9, 1798: “The Congress are going on very well at the eleventh hour. Though timid they will do all but one thing before they rise [referring to a declaration of war].” In her July17,1798, letter to her sister, she became philosophic: “As Congress would not proceed to a declaration of war, they must be answerable for the consequences.”41
Adams’s diplomatic efforts finally were successful and war was averted.
Adams’s success in accomplishing this objective and snatching peace from the jaws of war is without doubt the outstanding achievement of his presidency.42 Adams so regarded it, describing the success of his last-ditch peace mission
Federalist of the times.Compare New Letters, at xxv,withCharles Francis Adams,Familiar Letters of John Adams and His Wife Abigail Adams During the Revolutionxxvii–xxviii (1875).
38 See1Jefferson,Writings(Ford), note13, at282;6Writings of James Madison325,328(Gaillard Hunt ed.1901); Miller, note4, at155.
39 Letter, Thomas Jefferson to James Madison (Apr.26,1798),10Jefferson, Writings(Lipscomb), note12, at32.
40 Abigail Adams tartly commented: “The people throughout the United States, with a few exceptions, would have wholeheartedly joined in the most decided declaration which Congress could have made . . . but the majority in the Congress did not possess the firmness and decision enough to boldly make it.” Letter, Abigail Adams to John Quincy Adams (July20,1798),2Page Smith,John Adams 1788–1826,979n.4(1962) (hereinafter Page Smith).
41 Letters, Abigail Adams to Mary Cranch (July9, July17,1798),New Letters, note37, at199–201, 205–207.
42 Morison reports French policy toward the United States changed after Talleyrand learned from Victor DuPont, French consul at Charleston, that the strength of French sympathizers in the United States had been overestimated. The decree ending French depredations on American commerce followed shortly thereafter. With the decree, Adams was encouraged to make still another effort for peace. The renewed negotiations led to peace two years later.SeeSamuel E.
Morison, DuPont, Talleyrand, and the French Spoliations,49Proc. Mass. Hist. Socy.63,78 (1915).
as “the most splendid diamond in my crown” in a letter written years later.43 In consequence, Adams must be ranked among the outstanding American presidents.
2. The Action of the Congress
In this turbulent period with the High Federalists moving so vigorously to prepare for the war with France that they thought almost immediately upon them, federal action on a criminal libel law had become increasingly likely.
Thus, on April26,1798, Abigail Adams, that source of such vivid insight into the thinking of some Federalists at the time, wrote to her sister Mary:
Yet dairingly [sic] do the vile incendaries [sic] keep up in Baches paper [the Philadelphia Aurora] the most wicked and base, voilent [sic] &
calumniating abuse. . . . But nothing will have an Effect until Congress pass a Sedition Bill, which I assume they will do before they rise – Not a paper from Bache press issues nor from [Thomas] Adams [Boston Independent] Chronicle, [sic] but might have beenprevented cancelled [sic] [prossecuted?] [sic] as libels upon the President and Congress.44 Several weeks later in another letter to Mrs. Cranch, she described street fighting between Federalist mobs with their black cockades and Republican mobs with their French tricolor cockades, adding that the Massachusetts courts should act to suppress the Republican press or “we shall come to a civil war.45 Similarly, anticipating the introduction of a criminal libel bill in the Congress, Thomas Jefferson saw the country facing a “reign of witches.” In his celebrated letter to John Taylor, Jefferson on June1,1798, wrote: “A little patience and we shall see the reign of witches pass over, their spells dissolved, and people recovering their true sight, restoring their government to its true principles.”46
43 Letter, John Adams to James Lloyd (Feb.6,1815),10John Adams,Works115(Charles F. Adams ed.1854) (hereinafter John Adams,Works(C. F. Adams)).
44 Letter, Abigail Adams to Mary Cranch (Apr.26,1798),New Lettersnote37, at164–165. Two months later, Bache was indicted for criminal libel under the federal criminal common law. Thereafter, Thomas Adams was indicted for criminal libel under the Sedition Act and Massachusetts common law.See supratext accompanying notes19to26(Bache) andinfranotes138,141,144(Adams).See also infraCh.6, text accompanying notes125–129.
45 Letter, Abigail Adams to Mary Cranch (May10,1798),New Letters, note37, at170. For other letters of Abigail Adams to Mary Cranch of the same tenor,see ibid. (May26,1798, June19,1798, June23,1798).
46 Letter, Thomas Jefferson to Col. John Taylor of Caroline (June1,1798),8Jefferson,Writings (Ford), note13, at265.
The Enactment of the Sedition Act 85 Several weeks later, Sen. James Lloyd of Maryland, writing to former Pres- ident Washington, posted him of the impending events, stating: “We shall very soon declare the Treaty with France void and pass a strong act to punish sedition.”47
A few days later on June 27,1798, Sen. Lloyd introduced in the Senate the expected bill providing for the criminal punishment of criminal libel.48 The bill meticulously followed the English common-law model of criminal libel as described by Blackstone. As readers have seen, this rigorous doctrine was the law in the states in consequence of their general enactment on Independence of “reception statutes” making the law of the colony (that, of course, included the English common law) as the law of the new state.49 As Blackstone’sCommentaries had made clear to American lawyers,50 the English criminal libel doctrine was draconian, providing no role for truth and a highly restricted role for the jury.51Further, the Bill ignored the1792 adoption by the Parliament of Fox’s Act with its significant liberalization of the common-law doctrine. The statute greatly increased the role of the jury by empowering it to reach a general verdict and to rule on all issues of law and fact, subject to the instructions of the judge.52Thus, as proposed, the Sedition Bill would have enacted the English common-law doctrine in a form that had already been repudiated by the English.
The Federalists had decisive control of the Senate and in a matter of days were able to ram through this bill for the Sedition Act in the very rigid form presented. However, things were very different in the House. Although the Federalists appeared to have had narrow control of the House, the reality was somewhat different on occasion. Party organizations and party discipline
47 Letter, James Lloyd to George Washington (June18,1798),2George Washington Papers (Retire- ment Series)341–342(Dorothy Twohig ed.1998)341–342(1998) (hereinafter Washington,Papers (Twohig)).
48 After the adoption of the Sedition bill by the Senate, Sen. Lloyd wrote immediately to inform former President Washington, then in retirement at Mount Vernon.SeeLetter, James Lloyd to George Washington (July4,1798),ibid., at375.
49 Seetext accompanying Ch.3, notes17and18.
50 See4William Blackstone,Commentaries on the Laws of England, at150–151(1769, repr.1992) (hereinafter Blackstone).
51 As noted, the role of the jury in criminal libel cases was restricted to a special verdict relating to two issues alone: did the defendant publish the allegedly libelous statement maliciously; did the statement have the innuendos of ridicule and opprobrium required by the doctrine? Every other issue was for the judge.
Proof of malice as a matter of form was an essential element of the American law.SeeJames Sullivan,Dissertation upon the Constitutional Freedom of the Press54(1801). This was in accord with Blackstone.4Blackstone, note50, at150(“malicious defamations”). However, “malice” was a legal fiction; it was presumed from the defendant’s act in making a defamatory publication.
52 32Geo. III c.60(1792).
were still in their infancy. Although there were, of course, numerous deeply committed Federalist members, Federalist control in the end depended on the much weaker allegiance of a number of members who tended to vote with them but were not fully committed to the party.53At times, the outcome was affected by large-scale absences from the session. Thus, Jefferson had lamented that the Alien Act, which was also adopted by a narrow margin, could have been readily defeated if ten Virginian Republican congressmen had not been absent from Washington.54
When the Senate version of the Bill came before the House, it received a hostile reaction. To secure passage, the sponsors of the Bill were forced to liberalize it in two major respects. On truth, the Bill was revised to make evidence of the truth of the allegations admissible, albeit only with respect to the inference it cast on whether the defendant had acted in a malicious manner. On the role of the jury, the Bill was revised to include the reform in Fox’s Act granting the jury the power to give a general verdict55reflecting its ruling on all questions of law and fact, subject to the instructions of the judge, as in other areas of the law. Even then, the House approved the modified bill only by the narrow vote of54to51.
In the debate, the Federalists argued that the Act was within the consti- tutional powers of the Congress on a number of grounds. First, it gave the government no powers that it did not already possess under common law56; it was a codification, even a liberalization, of its preexisting common-law author- ity. Second, it was within the implied powers of the Congress supported by the “necessary and proper” clause.
53 In his detailed study of party affiliation in1798, Manning J. Dauer concludes that there were only 12“moderates” in the House not firmly committed to either party. Five elected as Republicans and seven as Federalists did not regularly vote the party line. These held the balance of power.
Manning J. Dauer,The Adams Federalists170–171, Appdx.312–317(Vote Chart No. V, Table No.
19) (1953).
See alsoWilliam N. Chambers,Political Parties in a New Nation: The American Experience, 1776–1809,136–138(1961) (party allegiances were just beginning to become firmly established).
54 SeeLetter, Thomas Jefferson to James Madison (May24,1798),3pPapers of Thomas Jefferson 363(Barbara Oberg ed.2003) (hereinafter Jefferson,Papers(Oberg)) (the absentees included such prominent members of the Virginia delegation as Representatives Giles, Cabell, and Nicholas).
55 In a special verdict, the jury determined two specific issues of fact. However, in rendering a general verdict, the jury responded only “guilty” or “not guilty” without any necessity to justify its action.
In effect, it was a great liberating process, opening the door to jury nullification with the possibility of a verdict of “not guilty” irrespective of the nature of the prosecutor’s proof. However, the reform lacked practical significance when the jury was “packed.”
56 Harrison Otis quoted Blackstone in support.SeeAnnals,5th Cong.,2d. Sess.1851a,2147ff. (1798).
The Enactment of the Sedition Act 87 The Republicans not only vigorously attacked the Act as unconstitutional, but went further and asserted that it was unnecessary as well. First, the Act was nowhere authorized by the limited powers granted to the Congress by the Constitution. It was an unwarranted expansion of national power in violation of the rights of the states reserved by the Tenth Amendment. For the South, concerned with any expansion of national power lest it serve as a justification for an attempt to restrict or abolish slavery, this was a matter of first importance.
Second, as the Supreme Court held15years later, the national government had no common-law powers; there was no federal common law of crimes.
Finally, Republicans attacked the Bill as a blatant violation of the constitu- tional guaranty of freedom of speech and press. Representative Gallatin of Pennsylvania argued eloquently that the Blackstonian concept of freedom of the press, however suitable in a monarchy, was incompatible with the demo- cratic ideals of the New Republic. Representative Nichols of Virginia added that the press had a different role with the entirely different political structure of the Republic and that “a different degree of freedom” was essential.57Later, James Madison emphasized this principle in the Majority Report pertaining to the Virginia Resolution denouncing the Act. The Resolution stressed the vital importance of “the right of freely examining public characters and mea- sures and of free communication . . . thereon.” Such public criticism was “the only effective guardian of every other right.”58
By contrast, in his draft of the accompanying Kentucky Resolution, while Jefferson agreed that the Act violated the guaranty of freedom of speech in the federal Constitution, he carefully noted that the states reserved the “right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom.”59
Finally, the Republicans also opposed the Bill as a matter of expediency.
Republican leaders in the debate such as Representative Nathaniel Macon of North Carolina, (who soon would be Speaker of the House after the Republican triumph in the1800 elections) pointed to the existence in the various states of criminal libel doctrines fashioned in the rigid Blackstonian model copied in the original bill. They argued that if the federal government encountered criminal libels that required prosecution, it was not defenseless;
57 Annals,5th Cong.,2d Sess.2145–2157(1798).
58 Majority Report, Virginia Resolution on the Alien and Sedition Acts, James Madison,Writings, 588–591,608–616(Libr. Am.1999) (hereinafter Madison,Writings(Libr. Am.).
59 Jefferson, Draft of the Kentucky Resolution, in Jefferson, Writings (Libr. Am.), note 26, at 449–451.
the laws of the states already provided a remedy, and a federal statute was unnecessary.60 Albert Gallatin and Edward Livingson similarly argued that federal law was not only unauthorized by the Constitution, but unnecessary because persons could be prosecuted in the state courts.61However, as noted, in making this argument, the Republican speakers in the congressional debate made no effort to explain why the very state doctrines of criminal libel that they were holding out as a demonstration that a federal statute was unnecessary were not also unconstitutional under the guaranties of freedom of speech and press contained in the Constitutions of almost all of the13states if the federal criminal libel statute was unconstitutional under the comparable guaranty in the federal Constitution.
Acting behind the scenes as usual, Thomas Jefferson drafted a sweep- ing response to the Acts for consideration by the Virginia and North Car- olina Legislatures. His draft denounced the statutes as unconstitutional by exceeding the powers of the Congress and in violation of the First Amend- ment. He enlisted the aid of James Madison, who rewrote the Virginia draft, eliminating its more extreme aspects, and obtained its enactment by the Virginia Legislature. The Virginia legislature charged that the Acts were
“palpable and alarming infractions of the constitution” and asked the legis- latures of the other states to join with it in condemning the Acts as uncon- stitutional. However, it avoided use of such terms as “null and void” or
“nullification.”62
Jefferson also shared his draft with W. C. Nichols for introduction in the North Carolina Legislature. Apparently feeling that chances of adoption in Kentucky were better, Nichols passed along the draft to another person in Jefferson’s confidence, John Breckinridge of Kentucky. Breckinridge suc- ceeded in having the Kentucky Legislature adopt a more extreme statement than that approved in Virginia. The Kentucky Resolution drafted by Jefferson condemned the Acts as “void and of no force” and as “palpably against the Constitution.”63
These actions badly misread the temper of the country. Virginia and Kentucky were rebuffed by all the other states. Not one supported the Resolutions. On the contrary, virtually all the legislatures of the New Eng- land and Mid-Atlantic states adopted resolutions denouncing the Virginia
60 Annals,5th Cong.,2nd Sess.2104–2106,2151(1798). Gallatin advanced the same argument.
61 SeeWalter Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal,1970 Sup. Ct. Rev.109,121–125(1970).
62 SeeMadison,Writings(Libr. Am.), note58, at588–593,608–662.
63 SeeJefferson,Writings, note26, at449–456.