Empire of Liberty: A History of the Early Republic, 1789-1815 Page 34
In the Federalists’ eyes much of the Republican press in the 1790s was indeed creating contempt for authority and undermining the due subordination of society. President Adams was especially vulnerable to criticism. Lacking Washington’s popularity and stature, Adams was ill equipped to play the role of the republican monarch, and efforts to bolster his authority with formal ceremonies and elaborate rituals only made him seem absurd and open to ridicule, which the Republican press was more than willing to supply.47
If the Republicans’ smear campaigns had been read by gentlemanly elites alone, they might have been tolerable to the Federalists. But, instead, the Republicans’ slanders against public officials were reaching down to new popular levels of readers. The Federalist attitude to published materials was similar to that of the attorney general of Great Britain. When the radical scientist Thomas Cooper, who would soon emigrate to the United States, sought to respond in print to an attack by Edmund Burke, he was warned by the British attorney general to publish his work in an expensive edition, “so as to confine it probably to that class of readers who may consider it coolly.” If it were to be “published cheaply for dissemination among the populace,” declared this law officer of the crown, “it will be my duty to prosecute.”48 In other words, more important than what one said was to whom it was said. Anything that undermined the public’s confidence in their leaders’ capacities to rule was by that fact alone seditious.
It was bad enough that the Republican newspapers’ slanderous and malicious attacks on federal officials were reaching out to a new popular readership, but, equally alarming to many Federalists, like the Reverend Samuel Miller, whose Brief Retrospect of the Eighteenth Century was an elaborate compendium of the Enlightenment, these newspapers had fallen into “the hands of persons destitute at once of the urbanity of gentlemen, the information of scholars, and the principles of virtue.”49 This helped explain why the Republicans’ writings had become so vulgar and vituperative. The politics of honor made it difficult to deal with muckraking by social inferiors. Newspaper criticism from the likes of James Madison or James Monroe could be handled by the code of honor. But criticism from the likes of Matthew Lyon or William Duane or James Callender was another matter altogether. Such Republican editors and writers were not gentlemen and in many cases were not even American citizens.
The Federalists concluded that these upstart scandalmongers were destroying the character of the country’s political leaders and undermining the entire political order. Believing, as George Cabot of Massachusetts put it, that “no free government, however perfect its form and virtuous its administration, can withstand the continued assaults of unrefuted calumny,” they sought to limit the national effectiveness of the muckrakers in the only way possible outside of the code of honor—by making seditious libel a federal crime.50
Americans believed in freedom of the press and had written that freedom into their Bill of Rights. But they believed in it as Englishmen did. Indeed, the English had celebrated freedom of the press since the seventeenth century, but they meant by it, in contrast with the French, no prior restraint or censorship of what was published. Under English law, people were nevertheless held responsible for what they published. If a person’s publications were slanderous and calumnious enough to bring public officials into disrespect, then under the common law the publisher could be prosecuted for seditious libel. The truth of what was published was no defense; indeed, it even aggravated the offense. Furthermore, under the common law judges, not juries, had the responsibility to decide whether or not a publication was seditious. Although this common law view of seditious libel had been challenged and seriously weakened by John Peter Zenger’s trial in New York in 1735, it had never been fully eradicated from American thinking or practice in the state courts.
Federalists wanted such a sedition law for the national government. The Sedition Act of July 14, 1798, which Vice-President Jefferson said was designed for the “suppression of the whig presses,” especially Bache’s Aurora, made it a crime to “write, print, utter or publish . . . any false, scandalous, and malicious writing or writings against the Government of the United States, or either House of the Congress of the United States, with intent to defame the said government, or either house of the said Congress, or the President, or to bring them . . . into contempt or disrepute, or to excite against them, or either or any of them, the hatred of the good people of the United States.” (Significantly, the office of vice-president was not protected by the act.) The punishment was a fine not exceeding two thousand dollars and imprisonment not exceeding two years.51 Compared to the harsh punishments Britain had meted out in its sedition trials of 1793–1794—individuals transported to Australia for fourteen years for expressing the slightest misgivings about the war with France—the American punishments for seditious libel were tame.
The sedition bill nevertheless left the Republicans aghast. It was one thing to repress aliens; it was quite another to repress the country’s own citizens. But radical Federalists like Robert Goodloe Harper thought that some citizens had become as dangerous as aliens. “There existed,” he said, “a domestic—what shall I call it?—a conspiracy, a faction leagued with a foreign Power to effect a revolution or a subjugation of this country, by the arms of that foreign Power.” Republican calls to the citizens to resist this legislation only confirmed the Federalist fears of “the contagion of the French mania.” The evidence was everywhere, said Harrison Gray Otis, of “the necessity of purifying the country from the sources of pollution.”52
The Federalist congressmen seemed almost demonic in the intensity of their passion. Even Hamilton became alarmed at the hasty vigor with which the Federalists in the Congress were moving. Slow down, he urged. “Let us not establish a tyranny. Energy is very different thing from violence.” By pushing things to an extreme too fast, he warned, the congressional Federalists might end up strengthening the Republicans.53
Ironically, the Sedition Act was actually a liberalization of the common law of seditious libel that continued to run in the state courts. Under the new federal statute, which resembled the liberal argument Zenger’s lawyer had used, the truth of what was said or published could be admitted as a defense, and juries could decide not only the facts of the case (did so-and-so publish this particular piece?) but the law as well; in other words, the jury could decide whether the defendant was guilty or not guilty of having written something libelous and seditious. Neither truth as a defense nor juries’ deciding the law was allowed under the American common law. Indeed, some Federalists believed that the national government did not even need a statute to punish seditious libel; they claimed that the common law of crimes ran in the federal courts and could be used to prosecute cases of seditious libel.
Despite these liberal elements, however, the bill passed the House by only forty-four to forty-one. It was due to expire on March 3, 1801, the day before the end of the Adams administration. However disastrously this act turned out for the Federalists’ reputation, at the time it seemed to many of them to be necessary for the protection of the country.
EVEN BEFORE THE ALIEN FRIENDS ACT was passed, anxious Frenchmen, including the noted French philosophe Constantine François Chasseboeuf, comte de Volney, prepared to leave the country for France. Following the act’s passage, more than a dozen shiploads sailed for France or Saint-Domingue. Many who did not flee the country were kept under surveillance by the ultra-suspicious secretary of state, Timothy Pickering. When Médéric Louis Elie Moreau de St. Méry, a refugee from the Reign of Terror, who in 1794 had established a bookstore in Philadelphia, asked why he was on the president’s list for deportation, he was told of President Adams’s blunt reply: “Nothing in particular, but he’s too French.”54 In the end, because so many foreigners left before the act was enforced and because of the president’s strict interpretation of the statute, the Federalist government never actually deported a single alien under the auspices of the Alien Act.
It was another story w
ith the Sedition Act. The government arrested twenty-five persons and brought seventeen indictments of seditious libel against Republican journalists and editors (fourteen under the Sedition Act itself), of which ten resulted in conviction and punishment. So fearful were the Federalists of pro-French fifth column activities by the Republican editors that they could not even wait for the statute to be passed. Three weeks before President Adams signed the Sedition Act into law, the government arrested Benjamin Franklin Bache, charging him with seditious libel under the common law. In vain did Bache’s attorneys argue before District Judge Richard Peters that the common law of crimes did not run in the federal courts. Judge Peters thought otherwise and set bail at two thousand dollars, but Bache died of yellow fever in September 1798 before he could be tried.
The Federalists, again under the zealous leadership of Secretary of State Pickering, went after the other leading Republican newspaper editors. Three of those convicted were refugees from British repression in the 1790s—Thomas Cooper, the English lawyer and scientist who turned to journalism in the late 1790s; James Callender, the Scottish radical who had stirred up the Reynolds affair against Hamilton; and William Duane, the American-born but Irish-bred publisher who took over the Aurora upon Bache’s sudden death in 1798. Cooper’s trial took place in Philadelphia before Supreme Court Justice Samuel Chase. In his charge to the jury, Chase set forth the Federalists’ rationale for the Sedition Act. “If a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature,” Chase declared, “he effectively saps the foundation of the government.” Cooper was found guilty, fined four hundred dollars, and sentenced to six months in the local prison.55
Chase was even more vindictive in the trial of Callender, badgering the defense attorneys and forbidding them from calling witnesses. Again the jury found Callender guilty, and Chase fined him two hundred dollars and sentenced him to nine months in jail. The severest sentence under the Sedition Act was imposed on David Brown, a semi-literate commoner and itinerant political agitator who had traveled to over eighty Massachusetts towns writing and lecturing against the Federalists. Brown directed his message at middling and lower sorts of “Farmers, Mechanicks, and Labourers” and emphasized the “struggle between the laboring part of the community and those lazy rascals” who did not have to work for a living.
In the fall of 1798 Brown rambled into Dedham, Massachusetts, the hometown of the arch-Federalist Fisher Ames, who described Brown as “a vagabond ragged fellow,” a “wandering apostle of sedition,” who gave speeches “telling everybody the sins and enormities of the Government.” Brown’s speeches apparently incited the Republicans in the town into erecting a liberty pole that contained an inscription denouncing the Federalists and their actions. The Federalists were outraged, calling the liberty pole “a rallying point of insurrection and civil war,” and they had Brown and Benjamin Fairbanks, a very substantial citizen of the town, arrested and tried for sedition with Associate Justice Samuel Chase again presiding. Both indicted men pled guilty. Chase, who was becoming even more notorious for his Federalist partisanship, let Fairbanks off with a five-dollar fine and six hours of imprisonment, but because Brown had “attempted to incite the uninformed part of the community,” Chase sentenced him to eighteen months’ imprisonment and a fine of $480—an extraordinary punishment that was a measure of the Federalists’ fears, in Ames’s words, of “the tendencies of democracy to anarchy.”56
The Federalist administration also indicted Matthew Lyon and Jedediah Peck. Lyon was actually the first person put on trial for violating the Sedition Act. But his conviction and the punishment (four months in jail and a thousand-dollar fine) backfired and turned Lyon into a Republican martyr. From his jail cell not only did Lyon continue to write on behalf of the Republican cause, but he also ran a successful campaign for reelection to Congress, the first prisoner in American history to do so.
The government had more trouble with Peck. Judge Cooper in Otsego County had Peck arrested for circulating petitions against the Alien and Sedition Acts and had him taken in irons to New York City for trial. But when the government realized that prosecuting this Revolutionary War veteran only increased Republican strength in his New York county, it dropped the case.
The short-term success of the Federalist Sedition Act in shutting down several Republican newspapers scarcely justified the long-term consequences of the government’s actions. Republican editors were not cowed; indeed, the number of new Republican newspapers increased dramatically between 1798 and 1800. Just as printers increasingly came to see themselves as political professionals, making a living out of politics, so did many Federalists reluctantly come to realize that seditious libel made a very poor political weapon for putting down faction in the kind of democratic society America, at least in its Northern parts, was rapidly becoming.57
STILL, EXPELLING ALIENS and stopping the flow of scurrilous writings were only parts of a larger Federalist program for saving the Republic from the scourge of Jacobinism. There remained what many Federalists thought was the likelihood of a French army invading the United States. Under this threat of invasion Congress began beefing up the country’s military forces. It levied new taxes on land, houses, and slaves. In addition to its naval buildup, it authorized a dramatic enlargement of the military establishment. At last, many Federalists believed they would have the standing army that they had long yearned for. Without an army, they believed, the United States could scarcely qualify as a modern nation: it would lack the most important attribute of a modern state—the ability to wage war. Some Federalists even thought that this army might be profitably used in other ways than simply against the French.
After the suppression of the Whiskey Rebellion, the country in 1796 had settled on a peacetime army of about three thousand men. Although this regular army was simply a constabulary force strung out in forts along the frontier, even it aroused anxieties among many Americans fearful of any semblance of a “standing army.” Most Republicans thought the state militias were more than able to handle any military crises. War produced armies, debts, taxes, patronage, and a bloated executive power, and these, said James Madison, “are the known instruments for bringing the many under the domination of the few.”58 The best way to avoid war was not to build up the country’s military forces; that only made war inevitable. Instead, the nation ought to negotiate, avoid provocations, and look for peaceful alternatives to fighting.
Suddenly under threat of a French invasion, the Federalists were in a position to counter what they regarded as this milksop Republican approach to foreign policy and achieve the kind of military establishment that would make the United States the equal of the European states. Most Federalists assumed that possessing a strong military force not only was an essential feature of a real nation-state but was as well the best means of preventing war. “Can a Country,” asked Theodore Sedgwick in 1797, “expect to repel invasion and interruption by declaring they not only never will fight; but never will prepare either by Land or water, an effectual defence?”59
In the frenzied atmosphere of 1798, the Congress enlarged the regular army by twelve regiments and six troops of dragoons, creating what was called a “New Army” of twelve thousand men to be organized at once. At the same time, Congress created a “Provisional Army” of ten thousand men, which the president could activate in case of actual war or invasion or even the “imminent danger” of invasion. The rumor that France was going to use blacks from Saint-Domingue to invade and foment slave rebellions in the South even led to Federalist gains in the Southern states in the 1798 elections.
Although this military force was smaller than Hamilton wanted, it was much larger than President Adams thought necessary. Like many of his English ancestors, the historically minded Adams disliked armies, which could manage coups and create despotisms, but liked navies, which were usually away at sea. Thus he favored the new Navy Department that was created at the same time the army was augment
ed. Besides, unlike most of his Federalist colleagues, the president doubted that France could ever invade the United States. He realized that the United States might be drawn into a full-scale war, but he himself would never push for it. Consequently, he never recommended that Congress enlarge the army; Hamilton, he believed, was responsible for that. Indeed, the way Adams tended to recall the events of 1798, and sometimes even the way he acted at the time, was almost as if he were not the chief executive at all.
Adams in 1798 had the sense that there was “too much intrigue in this business” of the army and its leadership, and with good reason.60 In many respects this grandiose military force was peculiarly Hamilton’s. Certainly no one wanted the United States to become a European-like state more passionately than did Hamilton, and he had shown a willingness to employ the army for internal purposes. In 1783 he had even urged Washington to use the army to pressure Congress into strengthening public finances, which had led General Washington to warn his high-strung aide that the army was “a dangerous instrument to play with.”61
Although Hamilton had been out of office and practicing law in New York since 1795, he had remained immensely influential with Adams’s cabinet and other Federalists. He saw in this crisis with France an opportunity both to redeem his reputation and, more important, to realize some of his vision of what the nation ought to become. In the spring of 1798 he dashed off a seven-part series of newspaper essays calling for the creation of a huge army to resist the imperialistic plans of the French and accusing the weak-kneed Republicans of appeasement. When some Federalists tried to lure him back into government with offers of a Senate seat from New York or the position of secretary of war, he resisted. He had his sights on a bigger role for himself: the effective commander-in-chief of the new army.