of the New Nation
Let us now review the march of events in the1790s that ultimately produced the environment that helped shape the direction taken by the political events of the end of the decade.
1. Shays’s Rebellion (1787)
Shays’s Rebellion was the first of these events. During the later days under the Articles of Confederation, rural discontent with deflated prices for agricultural products, high taxes paid mainly by the poor under the regressive tax system
81 Federal Gazette and Baltimore Advertiser, Jan.1798.
82 Letter, Abigail Adams to Mary Cranch (May10,1798),New Letters, note10, at170,172. Abigail Adams interestingly enough was appealing to the classicjustification for criminal libel as a legal doctrine designed to prevent breaches of the peace.
83 SeePasley, note14, at190.
84 SeePasley, note14, at278.
Insurrections Threatening Stability 43 of the times, tight money, and foreclosures of farm mortgages was serious.
Farmers with debts to pay and crops they could not sell clamored unsuc- cessfully to pay their debts in kind. These dire conditions led to the first of three armed revolts over a decade that threatened the stability of the New Republic.
In1786, in Massachusetts, such discontent exploded with armed farmer mobs led by a Revolutionary hero, Captain Daniel Shays, preventing courts from functioning and thereby preventing the determination of debt collec- tion cases and the issuance of judicial foreclosure orders. A thousand armed farmers prevented the Supreme Judicial Court with Chief Justice Cushing presiding from holding court in Springfield in September1786and again in December.
The situation was so serious that the Continental Congress voted to enlist 1,300men for service in Massachusetts. However, this proved unnecessary when Governor James Bowdoin, who had suspendedhabeas corpus, raised a militia of4,400men with “private money.” The money variously estimated at £4,000to £6,000came from129Boston merchants who were entreated to provide support with the advice that it was wiser to give a little than risk losing it all.
With two thousand armed men, Shays then attempted to seize the federal arsenal at Springfield with its store of 7,000 muskets and 1,300 barrels of gunpowder. They were repulsed by the arsenal defenders with discharges of grapeshot, with four men killed and more wounded. A week later, the state militia led byGen. Benjamin Lincoln engaged the insurgents in bitter winter weather and was able to disperse them as an organized armed force. The rebellion was suppressed, and14of the ringleaders were arrested, tried, and sentenced to death.85With the elimination of the armed threat, the threat to the state faded away, and more equable tempers returned. The Legislature began to address some of the abuses that had led to the Rebellion. The14 condemned leaders were either pardoned or their sentences reduced to short prison terms.86
This outbreak had several important consequences. Samuel Eliot Morison concludes that it alarmed “all Americans leaders,” except Thomas Jefferson, and strengthened the case for a stronger federal government. In particular,
85 See generallyMarion L. Starkey,A Little Rebellion(1955) (hereinafter Starkey); David P. Szatmary, Shays’ Rebellion: The Making of an Agrarian Insurrection(1980); George R. Minot,History of the Insurrections in Massachusetts in 1786 and of the Rebellion Consequent Thereon(1971).
86 See Samuel Elliott Morison,The Oxford History of the American People302–304(1965); Allan Nevins,The American States During and After the Revolution 1775–1789,534–537(1927). Jefferson was not concerned. (“I like a little rebellion now and then.”) Letter, Thomas Jefferson to Abigail Adams (Feb.22,1787), The Adams-Jefferson Letters173(L. Cappon ed.1959).
both President Washington and Secretary of the Treasury Hamilton perceived this as a serious threat to the government. Shaken by the outbreak, they appeared to have exaggerated its significance and overreacted. The episode also incidentally showed the desirability of the use of overwhelming force to deal with such disturbances, a lesson that was learned and applied a few years later in the suppression of the Whiskey Rebellion of1794in Western Pennsylvania.
Finally in a prelude to the Sedition Act of1798, the suppression of Shays’s Rebellion was accompanied by four prosecutions for criminal libel in the Massachusetts courts of several editors and a local judge for publications supporting the Rebellion. These are reviewed in Chapter6.
2. The Whiskey Tax Rebellion (1794)
Shays’s Rebellion was followed a few years later by the Whiskey Tax Rebellion in Western Pennsylvania and Kentucky.87 Corn played an essential role in the local farm economy, but the transportation costs over the mountainous areas to get the corn to market were prohibitive. Conversion of the corn to whiskey reduced the transportation costs sixfold, and the product became highly profitable. Whiskey speedily replaced the corn from which it was made as the marketable product.88Thus, nearly every farm had its own still.
The federal whiskey tax struck directly home and led to prolonged armed resistance by farmers to the government’s efforts to collect the tax.89Federal officers were prevented from performing their duties and were subjected to assault, tar and feathering, and in at least one case torture. In Beveridge’s summary of the Pennsylvania events, “men had been killed, houses burned, mails pillaged.”90A series of stormy public meetings adopted what Wharton
87 See generallyThomas P. Slaughter,The Whiskey Rebellion: Frontier Epilogue to the American Revolution(1986) (hereinafter Slaughter); William Hoagland,The Whiskey Rebellion(2006); Mary M. K. Tachau, The Whiskey Rebellion,73J. Amer. Hist.15,28n.30(No.1,1986); (hereinafter Tachau, Whiskey Rebellion); Wharton, note51, at102–184.
88 See7Douglas S. Freeman,Life of Washington: First in Peace183–184(posthumously completed by John A. Carroll and Mary Wells Ashworth1957).
89 In his account of the “Trials of the Western Insurgents,” Francis Wharton explains: “the war of the Revolution, by cutting off the trade in foreign spirits, had turned the attention of the grain growing districts . . . to the distillation of rum and whiskey. This soon grew into a very considerable business. . . . [A]lmost the whole local population was connected with it. . . . Not only were whiskey and rum articles of commerce and of consumption, but from the natural deficiency of specie in a wild country, they were also used universally as currency. . . . [T]hey were received in payment of debts.SeeWharton, note51, at102–103.
90 Albert Beveridge,The Life of John Marshall, 1801–1827,88(1919) (hereinafter Beveridge).
Insurrections Threatening Stability 45 describes as “some very intemporate resolutions,” some of which attacked the government generally.91At first, Washington temporized. Then his patience ran out. After three proclamations calling on the insurgents to cease their depredations had been ineffective, Washington responded to the use of force with overwhelming force.92 He called for 12,000 militia from the states of New Jersey, Pennsylvania, Maryland, and Virginia and designated such rev- olutionary military heroes as Governor Henry (“Light Horse Harry”) Lee of Virginia and Daniel Morgan, as well as Alexander Hamilton93 to join him in leading this formidable force in the field. Mary Tachau deems the militia army so excessive as to render the military demonstration in Pennsylvania a charade.94
In the face of such military power, the Pennsylvania insurrection speedily came to an end. Hamilton as acting Secretary of War characteristically over- reacted, recommending the arrest of150men for having committed treason.95 However, the grand jury returned only51indictments, of which31involved treason. Of the indictments, nine were tried for treason, with John Mitchell and Philip Vigol (Weigel) convicted and condemned to death. Two others, Thomas Wilson and Robert Fulke, were indicted for criminal libel, but it does not appear that these cases ever came to trial.96 As in the treason tri- als following the suppression of Shays’s Rebellion, Mitchell and Vigol were ultimately pardoned. As for the participants, Washington issued a general amnesty.97
91 SeeWharton, note51, at104.
92 There were political differences between the Federalists and the Democratic-Republicans over the appropriate response of the federal government to the Western Pennsylvania Insurrection.
Washington and Hamilton felt that the security of the state was at stake, whereas Democratic- Republicans led by Albert Gallatin were sympathetic to the economic pressures upon the trans- Appalachian farmers and concerned with the use of military might to suppress the farmers.
93 Hamilton’s military role had its less attractive sides. He was vain and ambitious. Thus, glorying in his designation as deputy commander to Washington, Hamilton seized the opportunity to accompany the militia quelling the episode, seizing every opportunity to ride by Washington’s side.SeeTachau, Whiskey Rebellion, note87, at25.
94 Although Tachau concedes that the protest was “increasingly marked by violence,” she deprecates the seriousness of the affair, asserting that when Washington left the “triumphal procession . . . after a total absence of any opposition . . . he . . . knew that there was no insurrection to justify the expense of the militia army.”See ibid., at23.
95 Tachau,ibid., at27n.28citingLetter, Alexander Hamilton to George Washington (Nov.17,1794), 17Papers of Alexander Hamilton380–381(Harold Syrett ed.1961–1987) (hereinafter Hamilton, Papers(Syrett)).
96 See Dwight Henderson,Congress, Courts, and Criminals: The Development of Federal Criminal Law, 1801–1829,14(1985) (hereinafter Henderson).
97 SeeWharton, note51, at175–183; United States v. Vigol,2U.S. (2Dall.)346,28F. Cas.376 (C.C.D. Pa1805) (No.16,621); United States v. Mitchell2U.S. (2Dall.)348(C.C.D. Pa.1795).
See alsoTachau, Whiskey Rebellion, note87, at28n.30; Henderson, note96, at14.
Thomas Slaughter reports that the legal response to the insurrection did not end with the treason trials. He observes: “There were individuals who advocated civil war and a separation of West from East. . . . Robert Lusk (or Luske) was later prosecuted for sending an incendiary letter of support to the Western Pennsylvania rebels. ‘As you have begun the good work, . . . we wish to have a hand in the fire.’” There is no confirmation of this report, and the outcome of the prosecution is not known.98
Indicating the growing gulf between Jefferson and the Federalists even at this early stage, Jefferson writing to Madison about the Whiskey Rebellion dismissed the armed violence as only “riotous” at the worst.99He went even further. In a letter, he actually gave his blessings to the outbreak with his well-known hair-raising comment: “The Tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”100
President Washington saw things very differently. After the Whiskey Rebel- lion had been crushed, he wrote “the insurrection was the firstripe fruitof the Democratic Societies” and further that “the Democratic Society of this place [Western Pennsylvania] was instituted by Mr. Genet for the express purpose of dissension.”101The societies were seen as “the fomenters” of the disturbances, which were likened to the violence pursued by the French Jacobins. Indeed, Beveridge relates that when the troops quelling the insurrection reached Harrisburg, they found the French flag flying over the courthouse.102
Along with Washington, Alexander Hamilton had strongly reacted to this second populist uprising involving armed resistance to law. He had not only urged President Washington to use military power to put down the resistance, he also sought to impose criminal punishment upon the ringleaders from the start. Singling out a broadside adopted at an August 1792anti-tax meeting that “we think it our duty to persist in our remonstrances to Congress, and in every other legal measure that may obstruct the operation of the Law until we
98 SeeSlaughter, note87, at207.
99 Letter, Thomas Jefferson to James Madison (Dec.28,1794),8Jefferson, Works157(Paul L. Ford ed.1895) (hereinafter Jefferson,Works(Ford)).
100 Letter, Thomas Jefferson to William S. Smith (Nov.13,1787),12Papers of Thomas Jefferson356 (Julian P. Boyd ed.1955).
101 Letter, George Washington to Burges Ball (Sept.25,1794), Washington,Writings(Libr. Am.), note6, at834; George Washington, Address to the Congress, Nov.19,1794,id., at887–893. Jefferson disapproved of Washington’s assertion.SeeLetter, Thomas Jefferson to James Madison (Dec.28,1794),6Jefferson, Works (Ford), note99, at516–517.
Malone asserts that this episode started the breach between Washington and Jefferson, who had concluded that the President had become a “party” man.See3Dumas Malone,Jefferson and His Timexvii (1962).
102 See2Beveridge, note90, at88n.3,citingAlexander Graydon,Memoirs of His Own Time374 (John S. Littell ed.1846, repr.1969). Other historians do not report such an episode.
Insurrections Threatening Stability 47 are able to obtained its total repeal,” Hamilton consulted Attorney General Edmond Randolph. Stating that he had “no doubt” that a “high misdemeanor had been committed,” he stressed that the farm leaders had committed an
“indictable offense” in the form of a criminal libel against the government.103 Although Randolph rejected the recommendation so strongly presented by his fellow Cabinet member, he expressed no concern over the existence of federal criminal common-law jurisdiction. Instead, his disinclination to proceed apparently arose from possible constitutional issues involving the constitutional guarantees of freedom of speech and press. Without alluding to the constitutional guaranties, Randolph elliptically distinguished between speech and action where there was no indication of a present threat.104
Western Pennsylvania farmers continued to be deeply concerned over access to markets for their crops. This opposition to Federalist policies that they perceived as hostile or uninterested in their impact on their economic problems attracted Jeffersonian support. For example, Albert J. Gallatin (a leading Pennsylvania Republican, later a distinguished Secretary of the Trea- sury under Jefferson, and briefly Secretary of State under Madison), partic- ipated in some of the mass meetings. Although, according to Wharton, he commendably was seeking to introduce a moderating influence on some of the resolutions being considered, the fact is that he was, nevertheless, present and participating in the mutinous assemblies.105
The ferment in Pennsylvania and Kentucky over the whiskey tax and the difficulties of the Western farmers in moving their corn to market continued.
Thus, the Democratic-Republican Society of Washington County, Pennsyl- vania, adopted a “petition” attacking the federal government for not taking bold enough action to break Spain’s control over the Mississippi River.106 Again, Hamilton urged the government to prosecute members of the society for the “seditious petition.” President Washington solicited advice from the other Cabinet members and suggested instead that he might either “contemp- tuously” ignore the petition or return it. Against Hamilton’s call for criminal prosecution for criminal libel, Postmaster General Knox rejected the recom- mendation. Relying on expediency as well as on principle, Attorney Gen- eral William Bradford (former Justice of the Pennsylvania Supreme Court)
103 SeeLetter, Alexander Hamilton to George Washington (Sept.1,1792),12Hamilton,Papers (Syrett), note95, at311–312.
104 SeeLetter, Edmond Randolph to Alexander Hamilton (Sept.8,1792),ibid., at336–337.
105 SeeWharton, note51, at121–122,136–137.
106 This was a sore point in the West because navigation of the Mississippi was necessary to enable Western crops, largely shut off from Eastern markets because of the barrier of the Alleghanies, to find a European market.
and Secretary of State Randolph did the same. Neither, however, challenged Hamilton’s view that the federal courts were available as an alternative avenue of response.107
As seen by the Federalists, the support of the Democratic-Republican societies for these developments in Western Pennsylvania108 provided clear proof of the “conspiracy” of the Jeffersonians to destabilize the government in the interests of the French.109Even John Marshall, most balanced of the prominent Federalists, shared this belief that the Whiskey Rebellion was aggravated, if not instigated, by bitter attacks in the partisan press against the Washington administration.110
From these beginnings, these Federalists linked the “conspiracy” to other serious developments. These included what were perceived as newspaper
“lies,” vicious attacks on the federal government, the growth of “seditious”
political organizations, agitation of immigrant groups, particularly French and Irish Catholics, and the spread of incendiary ideas from revolutionary France now under Jacobin, and later Directorate, domination, and finally to the opposition to the Sedition Act itself. Finally, as we have seen, Virginia hotheads idly talked of secession and forcible resistance in the event of war with France.111
Pennsylvania was not the only arena of conflict. Notwithstanding the over- whelming show of force in Pennsylvania, the refusal of Kentuckians to pay the whiskey tax and harassment of federal officials continued but was benignly
107 SeeRosenberg, note11, at72–74nn.50,51.
108 There were about40of these societies that emerged between1793and1800, sometimes attributed to Citizen Genet and analogized to the Jacobin clubs of revolutionary France. According to Malone, they became “centers of criticism of government policies.” The most important was the Pennsylvania Society, whose constitution was drafted by none other than Alexander J. Dallas.
See3Malone,Jefferson, note101, at132. They later formed a major constituent of what became the Democratic-Republican political movement.
109 SeeRosenberg, note11, at74.
110 R. Faulkner,The Jurisprudence of John Marshall88(1968).
111 There is no question that such incendiary statements were made. In Mar.1799, following the adoption of the Virginia Resolution, John Nicholas, brother of the prominent Republican and intimate of Jefferson Wilson Cary Nicholas, renounced his Republican affiliations. He expressed concern that the Resolution attacked the foundations of the new Republic and if applied would destroy it. He looked upon the store of arms in Richmond authorized by the Virginia Legislature as the first step.SeePhilip G. Davidson, Virginia and the Alien and Sedition Laws36Am. Hist.
Rev.336–338(1931); Adrienne Koch & Harry Ammon, The Virginia and Kentucky Resolutions:
An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,5William & Mary Quarterly (3d ser.) No.2,145,163(Apr.1948) (hereinafter Koch & Ammon).
Whether the deep concern over the statements was well founded is another matter. Davidson shows that although the facts as to arming were accurate, they were entirely unrelated to the Sedition Act.SeeDavidson, at336–342. Largely relying on Davidson, Koch and Ammon also conclude that Nicholas’s conjectures were “completely unfounded.” However, they concede that Nicholas’s action demonstrated the wide currency during1799of incendiary secessionist remarks by Virginians.SeeKoch & Ammon,id., at163.
Insurrections Threatening Stability 49 ignored by officials in Washington. Mary Tachau estimates that the oppo- sition to the whiskey tax was as strong in Kentucky as in Pennsylvania. She concludes that evidence of significant continuing disobedience in Kentucky was “covered up” and “has remained hidden.” Despite the Federalist pretense that all was well, “the population [was] in fact engaged in massive civil dis- obedience and occasional violence,” including attacks on U.S. marshals, and that Hamilton and Jefferson both were aware of this. Further, she asserts that Washington and Marshall pretended that Pennsylvania was an isolated exam- ple but knew better. The popular reaction in Kentucky was nearly unanimous and included the “most respected leaders.” All were angered by imposition of the federal tax on “their most exportable product.” To Kentuckians, the federal government was “remote and seemed unresponsive.”
Tachau adds that although it was known not to be the “true situation,”
the Washington administration used the “pretense” that after Washington’s proclamations, resistance to the whiskey tax continued only in Pennsylvania.
The Washington administration did not want to respond to the challenge in Kentucky and pretended that all was well. Attorney General Randolph was able to persuade Washington, who had used armed force in Pennsylvania, to follow a different strategy in the case of Kentucky. At his urging, Washington sent as special emissary to seek redress of settlers’ complaints on navigation of the Mississippi for their products. Tachau concludes by asserting that Washington, disappointed by the continued opposition in Kentucky, “retired to Mount Vernon, exhausted and embittered, leaving the unresolved mistrust of Kentucky in the hands of his successor.” She adds that the whiskey tax and the Sedition Act were the most controversial issues of the period.112
3. The Fries Insurrection (1799)
In the third of the three insurrections that shook the Washington and Adams administrations, still another armed insurrection broke out in Pennsylvania in1799. To finance the new Army and Navy voted by the Federalist Congress as it prepared for the anticipated war with France, the Federalists had enacted a direct tax on land and buildings. The tax was highly unpopular, and federal marshals attempting to examine properties in Pennsylvania for purposes of the tax were attacked by an armed mob led by John Fries. Although no lives were lost, the federal officers were assaulted and driven out of the area. With several hundred armed men, Fries then successfully freed prisoners in federal
112 See Mary K. B. Tachau,Federal Courts in the New Republic: Kentucky 1789–1816,66–71,92 (1978).