The Sedition Act of 1798


For the first few years of Constitutional government, under
the leadership of 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-- " 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." 

 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 "Complaints 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 majority..." 

 Public perception of factions were related to British
excesses and thought to be "the mortal diseases under which
popular governments have everywhere perished." James
Madison wrote in Federalist Papers #10, "By 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." He
went on to explain that faction is part of human nature;
"that the CAUSES of faction cannot be removed, and that
relief is only to be sought in the means of controlling its

 The significant point Madison was to make in this essay
was that the Union was a safeguard against factions in that
even if "the 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." 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 Burkes' famous aphorism: "When bad men
combine, the good must associate; else they will fall, one
by one, an unpitied sacrifice in a contemptible struggle?"
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

 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 Hamilton's
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 "pro-British merchants in the commercial cities,"
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
America's political system. The English "Order of Council"
and the French "Milan Decree" wreaked havoc with America's
shipping and led to Jay's Treaty of 1794. Jay's 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 "the 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." 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, "It will afford a glorious opportunity to
destroy faction. Improve it." Hamilton equated the public's
perception of the Republican's opposition to the
Federalist's agenda like that of the Tories in the

 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 "cut
the throats of honest citizens." 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, "If 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." 

 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 Baches' writing influenced even intelligent people,
"What can you expect from the gaping and promiscuous crowd
who delight to swallow calumny..?" The Federalist needed
the Sedition bill to shut down the Republican presses and
Bache played right into their hands with his publication of
Tallyrand's 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 hadn't 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 didn't 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 "to perpetuate
their authority and preserve their present places." 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 American's 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 Act's 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

 In June of 1940, America's fear of German aggression led
to the enactment of the Smith Act. Much like the Alien and
Sedition Act it required all aliens to be registered and
fingerprinted. It also made it a crime to advocate or teach
the violent overthrow of the United States, or to even
belong to a group that participated in these actions. The
United States Supreme Court upheld the constitutionality of
the law in the case of eleven communist (Dennis v United
States.) This decision was later modified in 1957 (Yates v
United States.) The Court limited conviction to direct
action being taken against government, ruling that teaching
communism or the violent overthrow of government did not in
itself constitute grounds for conviction. 

 Another instance of governmental infringement of the
liberties of American citizens is the well known Senate
Sub-committee on un-American Activities headed by Joseph
McCarthy. Thousands of people lost their livelihood and
personal reputations were shattered by innuendo, finger
pointing, and outright lies. As in earlier instances of
uncontrolled excesses by people in government, guilt was
assumed and protestations of innocence were evidence that
"something" was being hidden. In 1993, rumblings were heard
from the Democratic controlled Congress that there needed
to be fairness in broadcasting. If one viewpoint was
shared, they felt the opposing viewpoint must be given fair
time to respond. This was facetiously called the "Rush Act"
in response to the phenomenal success of conservative radio
talk show host, Rush Limbaugh. 

 As in the 1790's when Republicans formed newspapers to
counteract the Federalist control of the press; many
conservatives felt that the few conservative broadcasters
and programs had a long way to go before they balanced the
liberal press. Fortunately, as in the 1800 election,
Republicans gained control of Congress in 1992 and the
"Rush Act" died a natural death. Recently many Americans
have become concerned with domestic terrorism. Waco, the
Oklahoma Federal Building, and now the Freemen in Montana
have caused citizens and legislators alike to want
something done. The House of Representatives just approved
HR2768. This bill will curtail many liberties for American
citizens as well as Aliens. 

 The following are eight points made by the ACLU concerning
this bill: 
 1. Broad terrorism definition risks selective prosecution
 2. More illegal wiretaps and less judicial control will
 3. Expansion of counterintelligence and terrorism 
 investigations threatens privacy 
 4. The Executive would decide which foreign organizations
 Americans could support 
 5. Secret evidence would be used in deportation
 6. Foreign dissidents would be barred from the United
 7. Federal courts would virtually lose the power to
 unconstitutional Incarceration 
 8. Aliens are equated with terrorists 
This bill has many points in common with the Alien and
Sedition Acts of 1798, the Smith Act of 1950, the McCarren
Act of 1950, and the Executive Order of Feb.19, 1942 that
led to War Relocation Authority. Each one of these actions
were taken when fear controlled the public and an agenda
controlled the people in authority. Thankfully, the
American people have the Constitution and the Bill of
Rights to bring them back from the edge, and to force those
in positions of responsibility to accountability. 

The responsibility of government lies with the governed. If
the American people react to trying situations and events
in fear, then a general malaise and sense of helplessness
will permeate the collective American consciousness. The
abdication of personal responsibility erodes liberty,
creating an atmosphere of dependency, that leads to bigger
government and its pseudo security. Edward Livingston's
statement, "If 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,"
serves as a timely warning to Americans today.


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