The Sedition Act of 1798

George Washington, there was a unity, commonly called Federalism that even James

Madison (the future architect of the Republican Party) acknowledged in describing the

Republican form of government– y And according to the degree of pleasure and pride we

feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the

character of Federalists.y Although legislators had serious differences of opinions,

political unity was considered absolutely essential for the stability of the nation.

Political parties or factions were considered evil as yComplaints are everywhere

heard from our most considerate and virtuous citizens, equally the friends of public and

private faith, and of public and personal liberty, that our governments are too unstable,

that the public good is disregarded in the conflicts of rival parties, and that measures are

too often decided, not according to the rules of justice and the rights of the minor party,

but by the superior force of an interested and overbearing majorityyy Public perception

of factions were related to British excesses and thought to be ythe mortal diseases under

which popular governments have everywhere perished.y

James Madison wrote in Federalist Papers #10, yBy a faction, I understand a

number of citizens, whether amounting to a majority or a minority of the whole, who are

united and actuated by some common impulse of passion, or of interest, adversed to the

rights of other citizens, or to the permanent and aggregate interests of the community.y

He went on to explain that faction is part of human nature; ythat the CAUSES of faction

cannot be removed, and that relief is only to be sought in the means of controlling its

EFFECTS.y The significant point Madison was to make in this essay was that the Union

was a safeguard against factions in that even if ythe influence of factious leaders may

kindle a flame within their particular States, [they will be] unable to spread a general

conflagration through the other States.y

What caused men like Thomas Jefferson and James Madison to defy tradition and

public perceptions against factions and build an opposition party? Did they finally agree

with Edmund Burkesy famous aphorism: yWhen bad men combine, the good must

associate; else they will fall, one by one, an unpitied sacrifice in a contemptible struggle?y

Did the answer lie in their opposition with the agenda of Alexander Hamilton and the

increases of power both to the executive branch as well as the legislative branch of

government?

Hamilton pushed for The Bank of the United States, a large standing Army raised

by the President (Congress was to raise and support armies,) a Department of Navy,

funding and excise taxes, and, in foreign policy, a neutrality that was sympathetic to

British interest to the detriment of France. Many legislators, especially those in the south,

were alarmed to the point that a separation of the Union was suggested as the only way to

deal with Hamiltonys successes. Many were afraid that the army would be used against

them as it had during the Whiskey Rebellion. Southerners saw the taxes to support a new

treasury loan favoring ypro-British merchants in the commercial cities,y and unfairly paid

by landowners in the South. These issues as well as neutrality issues between France,

England, and the United States were the catalyst for the forming of the Republican Party.

The French and English conflict caused many problems with Americays political

system. The English yOrder of Councily and the French yMilan Decreey wreaked havoc

with Americays shipping and led to Jayys Treaty of 1794. Jayys Treaty was advantageous

to America and helped to head off a war with Britain, but it also alienated the French. The

French reacted by seizing American ships causing the threat of war to loom large in

American minds. President Adams sent three commissioners to France to work out a

solution and to modify the Franco-American alliance of 1778, but the Paris government

asked for bribes and a loan from the United States before negotiations could even begin.

The American commissioners refused to pay the bribes and they were denied an audience

with accredited authorities and even treated with contempt. Two of the commissioners

returned to the United States with Elbridge Gerry staying behind to see if he could work

something out. This became known as the XYZ affair and was the beginning of an

undeclared naval war between France and the United States.

The XYZ affair played right into the hands of the Federalist Party. They immediately

renounced all treaties of 1788 with France and began their agenda of creating a large

standing army and a Navy Department to deal with the threat of an American-French war.

Fear and patriotism were fanned and a strong anti-French sentiment swept the land. Then

a gem of a caveat was thrown into the Federalist hands when Monsieur Y boasted that

ythe Diplomatic skill of France and the means she possess in your country, are sufficient to

enable her, with the French party in America, to throw the blame which will attend the

rupture of the negotiations on the Federalist, as you term yourselves, but on the British

party, as France terms you.y This boast was to cause suspicion and wide spread

denunciation of the Republican Party and its leaders. Senator Sedgwick, majority whip in

the Senate, after hearing of the XYZ Affair, said, yIt will afford a glorious opportunity to

destroy faction. Improve it.y Hamilton equated the publicys perception of the

Republicanys opposition to the Federalistys agenda like that of the Tories in the

Revolution. All in all, this boast began the process that became the Alien and Sedition

Acts of 1798.

The Republicans debated against the bills for about a month, but the Federalist had the

votes. A background of fear helped keep the public silent and perhaps somewhat

approving to the loss of some personal freedoms, as nobody wanted to be accused as a

Jacobean. In May of 1778, President Adams declared a day of prayer and fasting. Many

thought that the Jacobeans were going to use that day to rise up in insurrection and ycut

the throats of honest citizens.y They even thought they were going to attack President

Adams and citizens of Philadelphia came out by the hundreds to protect him. Federalist

saw this as a demonstration of support for the government. Those who spoke against the

Sedition bill were accused of being in league with the Jacobeans. Edward Livingston, in

opposing the bill said, yIf we are ready to violate the Constitution, will the people submit

to our unauthorized acts? Sir, they ought not to submit; they would deserve the chains

that our measures are forging for them, if they did not resist.y The Federalist accused

Livingston of sedition because of his implied threat of popular rebellion; a practice seen in

future debates when unlawful power was to be enforced.

Republican newspapers were railing against the Federalist and especially against the

Sedition bill. The Aoura was the leading Republican publication and Benjamin Bache was

its editor. Baches ability to get the story out caused much consternation among

Federalist. Harrison Gray Otis said that Bachesy writing influenced even intelligent

people, yWhat can you expect from the gaping and promiscuous crowd who delight to

swallow calumny..?y The Federalist needed the Sedition bill to shut down the Republican

presses and Bache played right into their hands with his publication of Tallyrandys

conciliatory letter to the American envoys before the President had even seen it.

Republicans insisted that this was a journalistic scoop that would lead to peace because

France was willing to negotiate with Edmund Gerry. The Federalist wanted Bache to

explain how he had received a letter that the President hadnyt even seen yet. They began

to accuse him of being in league with France, an agent of Tallyrand and an enemy of the

people of the United States. The administration was so incensed with Bache that they

didnyt wait for passage of the Sedition bill, but had him arrested for treason on June 27,

1778.

From the very beginning Republican leaders recognized that the Sedition bill was

primarily directed toward the destruction of any opposition to the Federalist Party and its

agenda. Albert Gallatin said the Sedition Act was a weapon yto perpetuate their authority

and preserve their present places.y Proof that this bill was politically motivated became

obvious when the House voted to extend the act from the original one year proposed to

the expiration of John Adams term, March 3, 1801.

The States response to the passing of the Sedition Act was mixed. Kentucky and

Virginia each responded with acts basically nullifying the Congressional act, but other

states accepted the Congress taking authority from what had been a state function. The

public response initially appeared mixed. British common law seemed to have

preconditioned many to accept a limitation of their personal freedoms. The victory of the

Republicans, who ran on a platform of anti-sedition, in the election of 1800 showed that

Americans were much more interested in personal freedom than the aristocratic Federalist

thought.

What would happen if Congress submitted a Sedition Bill today as they did in 1778?

With our established two-party system (in marked contrast to their conceptions of

factions), the freedom of press as a well developed principle, and freedom of speech the

cornerstone in Americanys sense of liberty; it seems that there would be a major revolt.

Are there any instances in 20th century history that compares to the Sedition Actys flagrant

disregard of the First Amendment? No government actions seem so blatantly

unconstitutional as the Sedition Act of 1798; but, there are many actions since then that

have caused much more personal pain than the twenty-seven persons convicted under the

Sedition Act.

In times of war it is understood that many personal liberties may be curtailed,

especially for enemy aliens living in the United States. The War Relocation Authority

signed by President Roosevelt caused thousands of enemy aliens as well as Japanese-

American citizens to lose everything as they were interned in concentration camps

throughout the West. These Americans were told that if they were true patriotic citizens

they would go without complaining. If they were to complain then that was prima facie

evidence that they were not loyal citizens.

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