The Act was the product of the High Federalists ready and eager for war with France. It was only one of the numerous measures enacted by the Congress in
75 SeeLetter, Thomas Jefferson to James Madison (May3,1798),10Jefferson,Writings(Lipscomb), note12, at35.See also4Edward Channing,History of the United States: Federalists and Republicans 1789–1815,223(1917repr.1977) (“many French refugees fled” the country).
76 SeeJ. M. Smith, note19, at160.
77 Ron Chernow,Alexander Hamilton571(2004).
78 Boston Patriot, May29,1809.See Letter John Adams to Thomas Jefferson (lacking date) in Correspondence Originally Published in the BostonPatriot,9John Adams,Works(C. F. Adams), note43, at289,291.
79 SeeHenry Adams,Life of Gallatin203–204(1879).
The Federalists Divided over the Act 93 anticipation of the conflict. However, it seems clear that not only Adams, but other Federalist leaders including Alexander Hamilton and John Marshall deemed it at best inexpedient. Former President Washington gave the Act his private approval, but always unobtrusively. In brief, the course being taken by the war-hawk High Federalists lacked the solid support of a number of the most respected members of the party.
1. George Washington
Washington was in retirement at the time and characteristically refrained from participation in the public debate. However, he was outspoken in his defense of the Alien Act in his correspondence, speaking out vigorously supporting its use, particularly when directed against the more extreme Republican editors who were aliens. For example, writing to Alexander Spotswood, Jr., Washing- ton vigorously defended the need for the statute with a bitter comment about the press attacks in Republican papers edited by immigrants. Washington exploded: is it
not time & expedient to resort to protecting Laws against aliens . . . in many instances are sent among us (as there is the best circumstantial evidence) for theexpress purposeof poisoning the minds of our people;
and to sow dissension among them; in order to alienatetheiraffections from the Government of their choice, thereby endeavoring to dissolve the Union . . .80
As for the Sedition Act, the historians acknowledge that Washington sup- ported its enactment.81At the same time, it is striking to note how circum- spect he was in his correspondence pertaining to the Act. For example, he forwarded to Bushrod Washington and John Marshall copies of the grand jury charge of Presiding Judge Alexander Addison of the Pennsylvania Court of
80 Letter, George Washington to Alexander Spottswood, Jr. (Nov.22,1798),3Washington,Papers (Twohig), note47, at216. Twohig duly notes that the letter from Spottswood has been denounced as a forgery,id. at217n.1.
81 See, e.g, Joseph J. Ellis,His Excellency, George Washington249(2004) (“He cheered the ill-starred Federalist campaign from the sidelines”).See, e.g.,3George Washington,Papers: Retirement Series216–217,287(W. W. Abbot & Edward G. Lengel eds.1998–1999).
Washington’s typical response was to emphasize the evils that the Alien and Sedition Laws were intended to deal with without expressly endorsing the legislation. His letter to Federalist William Vans Murray provides an excellent example. Letter, George Washington to William Vans Murray (Dec.26,1798),3Washington,Papers(Twohig), note47, at297. (“The Alien & Sedition Laws, are now the desiderata [in] the Oppos[it]ion. But anything else would have done, and something there will always be, for them to torture, and to disturb the public mind with their unfounded and ill-favored forebodings.”)
Common Plea, a devoted Federalist and one of the nation’s most dedicated advocates of the vigorous use of criminal libel against political opponents.
In so doing, he seems to have tried meticulously to refrain from making any direct comment about the Act.82In this respect, as we will see, John Marshall was equally equivocal in his reply, referring to Addison’s charge as “certainly well-written.”83
2. Alexander Hamilton
Alexander Hamilton firmly supported the punitive purposes of the Sedition Act, as well as the Alien Act.84 When the Alien Act was being considered, he was concerned by the possible public reaction to some of the extreme provisions of the original proposals and counseled moderation. Writing to Timothy Pickering, Hamilton advised, “Let us not be cruel or violent.”85Later in the month after the Bills had been introduced, he wrote to Oliver Wolcott (later his successor as Secretary of the Treasury). He criticized provisions that seemed “highly exceptional and such as more than anything else may endanger civil war. . . . [L]et us not establish tyranny. Energy is a very different thing from violence.” He added, “If we push things to an extreme, we shall then give to factionbodyand solidity.”86In fact, the proponents of the Alien Bill had already recommitted it to committee. A revised bill emerged from the committee, deleting the treason and death penalty provisions. Similarly, the Sedition Bill approved by the Senate had followed the rigid common- law doctrine under which evidence of truth was not admissible and the role of the jury was minimal. As discussed above, the Sedition Act as finally enacted provided for the admissibility of evidence of truth and gave the jury a dramatically strengthened role. Hamilton’s influence likely contributed to the outcome.
82 E.g., Letter, George Washington to John Marshall (Dec.30,1798),3Washington,Papers(Twohig), note47, at297; Letter, George Washington to Bushrod Washington (Dec.31,1798),id. at302;14 George Washington,Writings134–136(W. Ford ed.1893).
83 Letter, John Marshall to George Washington (Jan.8,1799), Washington,Papers(Twohig), note 47, at308.
84 James Morton Smith provides a comprehensive view of Hamilton and the Alien and Sedition Laws.SeeJames Morton Smith, Alexander Hamilton, The Alien Law and Criminal Libels,16 Rev. of Pol.305–33(July1954) (hereinafter J. M. Smith, Hamilton).
85 Letter, Alexander Hamilton to Timothy Pickering (June7,1798),22Pickering Papers, Mass. Hist.
Soc’y.;8Hamilton’s Works 490(Henry Cabot Lodge ed.1971) (hereinafterHamilton’s Works (Lodge)).
86 Letter, Alexander Hamilton to Oliver Wolcott (June29,1798),21Papers of Alexander Hamilton522 (Harold Syrett ed.1961–1987) (hereinafter Hamilton,Papers(Syrett)).SeeJ. M. Smith,Hamilton, note84, at307–308.
The Federalists Divided over the Act 95 Once the Alien and Sedition Acts had been adopted, Hamilton repeat- edly called for the most energetic enforcement. Outraged by Callender’s revelations about his illicit affair with Mrs. Reynolds,87Hamilton wrote to Sen. Jonathan Dayton of New Jersey demanding the prosecution of the “for- eign born journalists [who were showing] open contempt and defiance of the laws . . . [and who were being permitted to] continue their destructive labours.
Why are they not put away?” He was troubled by the limited scope of the Sedition Act that penalized only libels against the President or either House of the Congress. Writing again to Dayton, he urged the adoption of further legislation criminalizing as seditious all publications libelous at common law
“if levelled against any officer whatever of the United States.”88So much for moderation.
3. Chief Justice Oliver Ellsworth
Oliver Ellsworth, then Chief Justice, was another outspoken supporter of the Sedition Act. After its enactment, Secretary of State Pickering consulted him, seeking an advisory opinion on the constitutionality of the Act. Illustrating the very different views of the times as to appropriate judicial conduct, Ellsworth responded. He upheld the constitutionality of the Act, observing that the Act was only codifying what was already federal common law, and that the Act in fact was distinctly more liberal.89
4. John Marshall
Of all the prominent Federalists, John Marshall, then a lawyer in Richmond, was the one most troubled by the Sedition Act. Although he made no public comments during the debate in the Congress and the enactment of the Act, he privately expressed his concern to Secretary of State Pickering. Writing in August1798shortly after the passage of the law, he reported that in Richmond,
87 Gordon Wood suggests that it was probably John Beckley, whom Jefferson used as a valuable source of potential gossip, who had leaked the Reynolds material to Callender.See Gordon Wood,Empire of Liberty: A History of the Early Republic, 1789–1815,237(2009).
88 Letter, Alexander Hamilton to Jonathan Dayton (undated1799),8Hamilton’s Works(Lodge) note 85, at517–522.SeeJ. M. Smith,Hamilton, note84, at310.
89 SeeLetter, Oliver Ellsworth to Timothy Pickering (Dec.12,1978),2Henry Flanders, The Law and Times of the Chief Justices of the Supreme Court of the United States193–194(1881repr.
1971).See alsoWilliam R. Casto, Oliver Ellsworth: “I have sought the felicity and glory of your Administration,” inSeriatim: The Supreme Court Before John Marshall292,309(Scott D. Gerber ed.1998); William R. Casto,Oliver Ellsworth and the Creation of the Federal Republic116(1997).
“those two laws, especially the sedition bill, are viewed by a great many well meaning men, as unwarranted by the Constitution. . . . There are also many who are guided by very different motives [than the partisan Republicans] and who are seriously uneasy on the subject.”90
A few weeks later, at the repeated urging of former President Washington, Marshall reluctantly became a Federalist candidate for Congress.91He then had to take a public stand. Using the occasion of an inquiry purportedly from a voter, an inquiry that some historians, including Beveridge, have suggested was prearranged,92 he disassociated himself from the Act, without challenging its constitutionality. Nor did he take a public stand on the Virginia and Kentucky resolutions that had vigorously attacked the law.
In his carefully modulated reply in the Alexandria Times and Virginia Advertiser, Marshall said
I am not an advocate for the alien and sedition bills; had I been in Congress, when they passed, I should, unless my judgment could have been changed, certainly have opposed them. Yet I do not think them fraught with all those mischiefs which many gentlemen ascribe to them.
I should have opposed them because I think them useless; and because they are calculated to create unnecessary discontents and jealousies at a time when our very existence, as a nation, may depend on our union. . . . [The law by its terms was about to expire and] I shall indu- bitably oppose their revival.93
Marshall’s refusal to endorse the Act enraged the High Federalists. Fisher Ames denounced him, saying “excuses may palliate; future zeal in the cause may partially atone; but his character is done for.”94Other High Federalists
90 SeeLetter, John Marshall to Timothy Pickering (Aug.11,1798),3The Papers of John Marshall 484–486(William C. Stinchcombe ed.1979).See supratext accompanying note104for John Quincy Adams’s mistaken understanding of Marshall’s position.
91 Washington invited Marshall to Mt. Vernon and over a several-day period in Sept.1798unsuc- cessfully tried to persuade Marshall to run. Marshall was hardpressed financially and had just returned from his diplomatic responsibilities attempting to negotiate with the French. He wanted to resume his lucrative law practice. At the last moment, appealing to Marshall’s patriotism and sense of duty, Washington finally was able to persuade him to do so, notwithstanding the financial sacrifice.See2Albert J. Beveridge,Life of John Marshall374–378(1916) (hereinafter Beveridge);
R. Kent Newmyer,John Marshall and the Heroic Age of the Supreme Court119–120(2001).
92 See2Beveridge, note91, at387n.1. (“The questions . . . were undoubtedly written with Marshall’s knowledge. Indeed, a careful study . . . leads one to suspect that he wrote or suggested them himself”).
93 2ibid., at Appdx. III,574–77(1916) (containing full text of the Freeholder’s questions and Marshall’s replies).
94 Letter, Fisher Ames to Christopher Gore (Dec.18,1798).See2ibid., at391.
The Federalists Divided over the Act 97 counseled, however, against public denunciation. George Cabot wrote to Rufus King:
I am ready to join you as well as [Fisher] Ames in reprobating the publication of Marshall’s sentiment on the Sedition and Alien Acts, but I still adhereto my first opinion that Marshall should not be attacked in the newspapers, nor too severely condemned elsewhere. . . . [I]t is certain that Marshall at Phila. [i.e., the Congress] would become a most powerful auxiliary to the cause of order and good Govt., andtherefore we ought not diminish his fame, which wou’d [sic] ultimately be a loss to ourselves.95
Abigail Adams, that outspoken sympathizer of the High Federalists at least on the urgent need for the Sedition Act, shared this resentment. Writing to President Adams in January1799, she confided:
I have met with Some of the Numbers addrest [sic] to Genll Marshall in the Chronical [sic] [the Boston Independent Chronicle, that arch Republican paper]. They appear to me to be the common place stuff of the party, the same low invective and abuse of the Government for which the Faction are distinguished. They will not injure Marshall so much as he injured himself.96
In the Congress, Marshall was the only Federalist to vote for the repeal of the Sedition Act when the Republicans proposed its termination in1801. Similarly, he was the only Federalist to vote against Sen. Bayard’s unsuccessful amendment late in the Adams administration providing that “the offences therein [Sedition Act] specified [to] remain punishable at common law” with the qualification that evidence of truth was admissible in justification.97
Nor did Marshall ever take any public stand on the constitutionality of the Act. Although such distinguished historians as Beveridge, Freeman, and James Morton Smith have identified Marshall as the author of the Minority Report in the Virginia Legislature that ably defended the constitutionality of the Act,98 this is only speculation. More recent studies have indicated
95 Letter, George Cabot to Rufus King (Apr.2?,1799).See2ibid., at393.
96 Letter, Abigail Adams to John Adams (Jan.12,1799),My Dearest Friend, note28, at459,460.
97 Annals,6th Cong.,1st Sess.419,423(1800).
98 See2Beveridge, note91, at401–406;7Freeman,Washington, note1, at539; J. M. Smith, note 19, at151; Ketcham, note67, at397; Robert K. Faulkner,The Jurisprudence of John Marshall88 (1968). Beveridge, for example, states flatly: “Marshall wrote the reply.”See2Beveridge, note91, at402.
that Henry Lee might well have been the author.99 On the other hand, Marshall’s subsequent strong interpretation of the “necessary and proper clause” of the Constitution as justifying an expansive recognition of “implied powers” of the Congress is consistent with the arguments of the Federalists in the congressional debate and in the Minority Report on the Virginia Res- olution upholding the constitutionality of the Sedition Act.100It is similarly consistent with Marshall’s later explanation that the Federalist argument on the issue of constitutionality of federal criminal punishment of criminal libel was that the power came not from the common law, but that “the Constitution gave it.”101
Similarly in his confidential correspondence with former President Washington, Marshall consistently avoided any endorsement of the Act with neutral comments, such as “well-argued” on such impassioned defenses of criminal libel as those contained in Presiding Judge Addison’s grand jury charge that Washington had forwarded to him. In his frankest comment, he observes, “However much I may regret the passage of one of the acts com- plained of, I am firmly persuaded that the tempest has not been raised by them. Its cause lies much deeper and is not to be easily removed.”102More- over, in writing to St. George Tucker, he permits himself to refer to “whatever doubts some of us may entertain” on the issue of constitutionality.103
A contemporary, High Federalist Theodore Sedgwick, called the Minority Report “a masterly performance for which we are indebted to . . . Marshall.” Letter, Theodore Sedgwick (Mar.20, 1799) to Rufus King,2King’s Correspondence581,cited byJ.M. Smith, note19, at151n.40.
Baker goes as far as to say the Minority Report “is believed to have been the handiwork of John Marshall,” but he carefully notes that “there is no evidence.” However, he concludes that most historians have assumed that Marshall was the author. Leonard Baker,John Marshall: A Life in Law306,308(1974) (hereinafter Baker).See e.g., Stephen M. Feldman,Free Expression and Democracy in America – A History85(2008) (“probably written by Marshall”).
99 See3Papers of John Marshall494–502note (William Stinchcombe and Charles Cullen, eds.
1979);12Marshall,Papers(Hobson), note69, at512–524.
100SeeUnited States v. Fisher,6U.S. (2Cranch)358,396(1805) (Marshall, C.J.) (“Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution”); McCulloch v. Maryland,17U.S.316, 414–417(1819) (Marshall, C.J.).
However, these decisions rest on an “implied power” to implement the execution of an express provision in the Constitution. It takes a further leap to accept that an “implied power” can be derived from the very existence of the nation and the Constitution.
101Letter, John Marshall to Anonymous (Nov.27,1800), John Marshall Papers (Libr. Cong.).See Baker, note98, at306.
102Letter, John Marshall to George Washington (Jan.8,1799) in reply to Letter, George Washington (Dec.30,1798),3Washington,Papers(Twohig), note47, at297.
103Letter, John Marshall to St. George Tucker (Nov.18,1800),6Marshall,Papers(Hobson), note 69, at14.
The First Cases Under the Act 99 One Federalist not identified with the High Federalists who strongly sup- ported the Alien and Seditious Laws was John Quincy Adams, then the 32-year-old Minister to Holland appointed by his father. Writing to Federalist William Vans Murray, the younger Adams “heartily approved of the Alien and Sedition Acts.” Apparently misinformed, the young Adams also believed that John Marshall had supported the Virginia and Kentucky Resolutions. He described himself as “thoroughly disgusted” by Marshall’s supposed action, which, of course, had never occurred.104
Preceded by the common-law prosecutions described above, the Sedition Act had become law in mid-July1798. The Congress promptly adjourned, and the politicians and politics went on vacation for the balance of the summer.
This was only a brief interruption in the course of events. In the early fall, the political scene exploded. Led by Secretary of State Pickering, the Federalist administration seized on the availability of the Act and commenced criminal proceedings against a series of Republican critics ranging from a handful of drunks in a Newark, N.J., bar to an outspoken Republican congressman and editor, as well as the editors of the leading Republican papers in the nation.
We turn now to examine the vigorous efforts of the Federalist administra- tion to utilize criminal libel prosecutions under the Sedition Act of1798for partisan purposes to harass or even suppress the Republican press on the eve of the crucial1800elections.