The Sedition Act of 1798

The Sedition Act of 1798

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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 EFFECTS."
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
government?

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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 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 "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 citizens.

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 threaten privacy 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 proceedings 6. Foreign dissidents
would be barred from the United States 7. Federal courts would virtually
lose the power to correct 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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