While the attention of the public was so largely directed, in the years 1797 and 1798, to war-like measures, purely political affairs of much importance were happening. The predominance of the Federalists in Congress and in the country suggested to the leaders of the party that they might do what they pleased. It was a temptation of power to which the wisest of them yielded.
Their idea that government should be in the hands of the capable classes might now for the first time in the history of the new government be put into operation. To those who held this theory, it seemed, also, that never before had there been such a need for the operation of the theory. Never before had officials been so profanely denounced. To make matters worse, much of the abuse was uttered by foreigners, and since the war with France was imminent it was concluded that these aliens were but agents of that nation. Most of the nations of the world had laws against seditious libels, and England in 1793 had made severe restrictions in that respect.
It was arguments like these which induced the Federalists to conclude that the government ought to restrict the political activity of aliens and to punish the ranters who made false charges and who intended to degrade in public opinion the highest officers in the land. In this, they did not go beyond the government then existing in France, so much the object of veneration to their opponents. For even Pinckney found that an alien could not dwell in France without license, and one can easily imagine what would have happened to a man in France who undertook to organize a party opposed to the existing authority at any time from 1792 to 1814. Of course, these things do not extenuate the repressive measures of the party in power, measures out of place in any government which had well-organized parties and universal suffrage. They merely account for a course of action which on any other grounds seems sheer madness.
The first notable political incident of the period mentioned was turned to the advantage of the Federalists. William Blount, a Republican senator from Tennessee, was taken in 1797 in a conspiracy to organize in connection with British assistance a filibustering expedition against Florida. The British minister declared that his government had taken no part in the plot, but it was clear that Blount was guilty of scheming against the neutral rights of Spain. In the short extra session of 1797, he was expelled from the Senate, impeached, and the trial was set for the next session. Before that time he was elected to the Tennessee assembly, where he was made president of the Senate. As an official in the legislature of a sovereign state, he denied the jurisdiction of the United States over him, refused to attend the summons to trial, and the case was dropped. He lived in undiminished popularity in his own state till 1810. Blount could not be defended even by his own partisans, and the incident gave some basis for the Federalists to say that the Republicans were tainted with treason.
Less justifiable was the treatment of Matthew Lyon by the Federalists. This member of the House of Representatives from Vermont was an Irishman, a Republican of fierce temper, unconventional in appearances, but fearless and persistent in expressing his views. He attracted attention when he asked to be excused from the slavish custom of going in procession with the whole House to present the reply to the president's annual speech. He was made the butt of much contempt from the opposition. One of their gibes was to revive a story that he had been cashiered in the old army and compelled to carry a wooden sword. January 30, 1798, Griswold, of Connecticut, repeated this charge to Lyon's face under certain irritating circumstances while the House was assembled informally. The Vermonter, instantly in a passion, spat in the face of his opponent, who tried to strike him but was prevented by his opponents. The Federalists now proposed to expel Lyon; but the Republicans, while not condoning his offense, thought the penalty too severe. They were willing to vote for a reprimand, although they insisted that the affair was not properly within their jurisdiction, because it was committed while the House was not in session. The Federalists declared for expulsion but on the final vote failed to get the necessary two-thirds majority.
Griswold then undertook to right what he conceived his own wrongs. February 15 he attacked Lyon with a heavy stick as the speaker was about to call to order. The latter seized a pair of tongs to defend himself; the two grappled and fell scrambling to the floor. Quiet was restored only when the speaker called the House to order. There was much excitement, and the Republicans moved that both combatants be expelled; but the Federalists rallied to the support of Griswold, who was a man of influence among them. They urged that as the affair occurred before the House was in session no notice could be taken of it; and here both sides were content to let it rest. This incident well illustrates the air of contempt with which the Federalists were accustomed at this time to treat their Democratic opponents.
To people who had been accustomed to the formal dignity of colonial and Revolutionary government, the crude campaigning of the day was very distasteful. It was an offense that a number of the most active pamphleteers were men who had recently come to America, some of them being Frenchmen, such as Collot and Volney, while some others were Englishmen who had been forced to leave England on account of their republicanism. Of the latter were Dr. Priestley, Thomas Cooper, William Cobbett, and the elder Gales. That such men, aliens as they were, should be converted in the twinkling of an eye into champions of American liberty seemed a little too much for those who remembered the sacrifices of the Revolution.
A still more glaring offense was the great extravagance of partisan denunciation. About six weeks before the passage of the sedition act. Chief Justice McKean, of Pennsylvania, an ardent Republican, described this abuse in his charge in the case against Cobbett as follows: "Everyone who has in him the sentiments of either a Christian or gentleman, cannot but be highly offended at the envenomed scurrility that has raged in pamphlets and newspapers, printed in Philadelphia for several years past, insomuch that labeling has become a kind of national crime, and distinguishes us not only from all the states around us but from the whole civilized world. Our satire has been nothing but ribaldry and Billingsgate: the contest has been, who could call names in the greatest variety of phrases, who could mangle the greatest number of characters; or who could excel in the magnitude and virulence of their lies. Hence the honor of families has been stained; the highest posts rendered cheap and vile in the sight of the people, and the greatest services and virtue blasted."
It was the Federalists who undertook to right matters by law, and in doing so they carried injustice far beyond the limits reached by the scribblers. They decided to deal with the political aliens and to stop the publication of seditious libels. Three principal measures grew out of this determination.
First, they took up the question of naturalization. A law of 1795 had given this privilege to aliens resident in the country for five years. Some of the Federalists would have withdrawn the process altogether, but the Constitution used such words in giving Congress the power that it was doubtful if such a position could be maintained. The best they could do, therefore, was to fix the requirement in the long term. It was enacted on June 18, 1798, that fourteen years of residence and a declaration of intention five years before the application should be necessary to naturalization; but the law was not to apply to those who had already arrived in the country. This drastic law was repealed in 1802 when the old law of 1795 was essentially re-enacted.
The law was passed while the country was in a ferment of excitement over the publication of the X, Y, Z papers. Just as it was finally approved, Marshall arrived from France with his hands filled with the fuel for a great popular conflagration and declaring that France would soon announce war. The Federalists felt strong enough for anything, and they proceeded to devise a means of dealing with the objectionable aliens already in the country. Two laws were passed, one applying to aliens in times of peace, and one to enemy aliens in times of war. By the former, the president was given the power to order out of the country any alien whom he thought dangerous to the public peace or whom he had reasonable grounds to suspect of plotting against the government. If an alien did not obey the law he might be imprisoned for three years, and if he returned after leaving he was to be imprisoned at the will of the president. The enemy alien act gave the president the power in a state of war to arrest, imprison, and banish all enemy aliens whom he might think dangerous. The worst feature of these laws was the extent of the power that they left to the president. "The poor aliens," as the Republicans called them, were placed at his mercy; but since they could have no standing in the courts, it was necessary to create some authority for the enforcement of the law, and Congress considered that the president, through his marshalls, could best execute it. Like the sedition law, it was a temporary measure, passed in view of the expected war, and in its own terms was limited to two years duration. Many Frenchmen left the country in anticipation of the law; and we may believe that it was chiefly planned in terror em, for in not a single case was it applied.
The sedition act, which was carried through Congress a little behind the alien acts, was intended to deal with citizens or aliens who too severely criticized the government. Like the alien acts, it originated in the Senate, where Federalism was most rampant. In its original form, it was made illegal to justify the present attitude of France or to imply that the administration acted contrary to the Constitution or to the liberties and happiness of the people. Twelve out of a possible thirty-two senators voted for this feature of the bill. In its final shape, it was made a high misdemeanor "unlawfully to combine and conspire" in order to oppose the legal measures of the government, or in order to prevent a federal officer from executing his office, or with such purpose "to commit, advise, or attempt to procure any insurrection, riot, or unlawful assembly, or combination." The penalty was to be a fine not exceeding five thousand dollars and imprisonment not exceeding five years. To publish false or malicious writing against the government of the United States, the president, or Congress, with the purpose of stirring up hatred or resistance against them, or to incite any foreign nation to war against the United States, was made a misdemeanor punishable by a fine of not more than two thousand dollars and imprisonment not longer than two years. The accused was allowed the benefit of trial, and the majority consented with reluctance to allow him to prove the truth of the words charged as seditious. The latter concession, however, was largely nullified by the fact that he could not prove his charges without going into an elaborate investigation of the conduct of the officials, and also by the fact that he could not summon the high officers of the government for witnesses or demand public documents.
Of all the Federalist leaders, only Marshall opposed these bills openly. His legal mind could not approve of this violation of natural rights, an attitude for which he was soundly denounced by the New England Federalists. Cabot thought he had much to learn about practical government, and Goodhue said that he had degraded himself. Marshall had already begun to separate from this extreme wing of his party.
The Republicans held that the sedition law was unconstitutional because the federal courts had jurisdiction over those crimes only which were mentioned in the Constitution; they declared that these courts had by the Constitution no common-law jurisdiction, and they thought that this attempt to assume one was a dangerous advance in consolidating the federal government. The point was not settled at the time, but in 1882, after much uncertainty had existed for some time, the supreme court held that the federal courts have no common law jurisdiction in criminal cases.
Another law of this session that aroused the opposition of the Republicans was the act to prevent fraud on the Bank of the United States. It was aimed at the counterfeiting of the bills of the bank. To the Republicans it seemed to be an extension of the powers of the federal government; and it suggested the principle that the federal courts should replace the states in the care of the interest of the bank, which was a federal institution.
Nothing better illustrates the extent to which the sedition law imperiled personal liberty than the attempts to put it into operation. A typical case is that of Dr. Thomas Cooper. He was not as extreme a partisan as Callender; and Justice Chase, who presided at his trial, was not then in his most savage frame of mind. The incident, therefore, will enable one to form a fair judgment of the practical side of the law.
Cooper was a prominent Republican of Pennsylvania, who in 1797 had applied through his friend Dr. Priestley for a federal office; but Adams had not noticed the request. In 1799 he was openly in opposition to the administration, and one of his opponents brought up his former willingness to accept office under the administration. He justified himself by saying that in 1797 Adams was "hardly in the infancy of political mistake: even those who doubted his capacity thought well of his intentions;. . . nor had he yet interfered, as president of the United States, to influence the decision of a court of justice." The last fling had a reference to the Robbins case.
There is hardly an election in the country today in which more violent charges are not made daily and without comment; but in 1799 they were considered highly dangerous, and Cooper was arrested, indicted for sedition, and tried in Chase's famous spring circuit of 1800. Cooper offered to summon Adams and certain congressmen in order to prove the correctness of his assertion, but this was denied as unseemly. Perhaps it had dawned on the Federalists by this time that any attempts to discuss the truthfulness of one of the seditious utterances at which they were aiming must degenerate into a political wrangle that would prove nothing, convince nobody, and degrade the courts of justice.
Chase interpreted the law in such a way that the jury must convict; and when a verdict to that effect had been given, he asked if the Republicans would pay the fine he would impose. In that case, he would make it heavy, otherwise, he would regard the circumstances of the prisoner. At this the circuit judge who sat with him interposed, saying, "I think we have nothing to do with parties"; and Chase relented. Cooper was sentenced to pay a fine of four hundred dollars and to be imprisoned for six months. Adams caused it to be known that he would pardon the prisoner, but Cooper charged the president with improper conduct in giving to the public the letter in which his original application for office had been contained, and he refused to accept clemency unless it should be accompanied with an acknowledgment of the president's error. This Adams would not agree to, and no pardon was issued.
Judge Chase's charge to the jury stated with clearness the view of those who believed in the sedition law. "All governments which I have ever heard or read of," he said, "punish libels against themselves. If a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature, he effectually saps the foundation of the government."
The enforcement of the sedition law quickly became a partisan affair, for under it the juries were to be selected by the same method as the juries in the state in which the case was called. Hence, wherever the local juries were selected by the sheriffs, the federal juries were summoned by the marshals. This threw the jury into the hands of the Federalists, and it was charged with much apparent truth that nobody but Federalists were selected. Where political lines were sharply drawn, it must have been difficult to get impartial jurymen.
Ten persons, all Republican editors, and printers, were tried and convicted under the sedition act. Many others were indicted but not tried. The great political effect of those cases which were tried soon opened the eyes of the government, and the execution of the law was abandoned. Matthew Lyon, Duane, and Callender all were made to feel its rigors. But they became popular martyrs by reason of it, and in 1840 Congress refunded the fines which had been collected from the first of these, together with that collected from Cooper.
The Alien and Sedition laws grew out of a momentary hysteria, not incomparable to that which produced the Salem persecutions for witchcraft. They were passed by men of strictly honest convictions, in the belief that they would redress an evident evil; but they rested on an outworn ideal. Their failure left a deep impression on the public consciousness. Never since that day has our government attempted to regulate what citizens should think or say about public officials.
