Reading the Sedition Act of 1798 | A Primary Source Close Read w/ BRI

0:03 Hello everyone. Welcome to today’s Close Reading Webinar episode. My name is Joshua Schmid. I am a member of the education team here at the Bill of Rights Institute. And today I’m excited to be joined by Tony Williams. He is our senior fellow. Thank you.

0:24 Good to be here. You have some exciting documents to talk about today, so should be great. I’m very excited. We’re going to be talking about the Sedition Act of 1798 today. So I’m going to go ahead and pull up a PowerPoint for us to review. As I’m doing that.

0:45 Tony, could you give us a bit of a historical background for the Sedition Act? So what was happening in the United States at this time? Why was it passed? Sure, Josh. I’ll give you some context here. This is in 1798 and just a few years before that in 1796.

1:06 I think it’s relevant to remember that John Adams was elected the second president after Washington, and it’s really the first contested presidential election that we had. And pretty interestingly, Thomas Jefferson is his Vice President. Now, these are two famous Founders, Adams and Jefferson.

1:29 But remember, they’re in different political parties. So we can imagine in our modern day era if there was a member of the Republicans or Democrats as the President and then the member of the opposite party as the Vice President.

1:49 That would create some fireworks, to say the least. And it did back in 1796, right around that time as well, the Jay’s treaty is passed. And that was a treaty between settling some of the disputes between the British and United States in terms

2:09 of the British seizing American vessels and some other important issues. But the French interpret that as an anti-French treaty. And so they start seizing American vessels, hundreds of vessels in the Atlantic and especially the Caribbean. And in 17, the Americans send ambassadors over

2:36 to the French to settle some of those disputed seizures. And as a result, the French Minister Talleyrand, the Foreign Minister, he demands a massive loan and some bribes

2:57 from American officials in something called the XYZ Affair. And the American officials, the ministers refused to offer that loan or those bribes. But it sets off another international and diplomatic dispute. As a result, the US. Congress and the Adams administration starts to prepare for war,

3:19 including coastal fortifications, including a Navy provisional army is raised in what was called the Quasi War with France. And this sets off just as a lot of partisan feelings and sort of warfare fervor, if you will.

3:39 And don’t forget that amidst all these partisan disputes, all of the Founders really disliked political parties. They saw them as inimical to the public welfare and the public good. They saw them as sort of bastions of faction and self interest.

4:01 And so everyone hated political parties. And yet political parties arose in the 1790s and really led to a lot of partisan antipathy and feelings and animosities specifically the Federalists are more pro British and anti French.

4:24 The Jeffersonian Republicans, or Democratic Republicans are sometimes called. They’re more anti British and pro French. So foreign policy and the debates over foreign policy really have a significant impact upon domestic politics, especially because

4:49 the French try to help sway and influence the outcome of the presidential election. There’s a great deal of party animosity going on. The Republicans were opposed to the war. They’re sort of opposed to these war measures, whereas The Federalists are

5:12 the ones driving them and very much seeking to defend the national honor. And in the middle of all this, newspapers were highly partisan affairs and really get involved in the party disputes between

5:33 the Democratic Republicans and The Federalists. There’s not really an idea of a loyal opposition at the time, and there’s not really an idea of an objective press. They’re really highly partisan charged. Sure, that phrase, loyal opposition, could you expand on that a little?

5:55 I think it’s very important term to understand here. Right yeah. The idea of a loyal party opposition would be that although you’re a member of a different party and although you have different ideas about whether a measure is good or not, a certain policy, domestic or foreign,

6:18 you’re still loyal to the country and you’re still patriotic and so forth. But that was not the idea at the time. The idea was that they were sort of akin to being traitors or that they were not supportive of the public good, of the common good, that they were seen as damaging to the public good.

6:44 And so this modern concept was really developing at the time and had not quite developed yet. And so both sides see the other side as contrary, as inevitable in some way to the public good, maybe in some ways not unlike today, but we’re talking about 1798,

7:06 and both saw the other side as illegitimate, that they were a party, that they were a faction, and somehow we, our side was just interested in the public good and not really a party. That’s how it would be at the time. Sure, yeah, that makes sense now with that background.

7:30 Congress actually passed the Sedition Act of 1798. It was in response, as you mentioned, to this growing fear of war with France, growing fear by The Federalists that the Jeffersonians might not be loyal to America, they might be treasonous if the government decides to fight France.

7:58 So they passed this act, which President Adam signed, and we just have the most important section from that act here. It reads that if any person shall write, print, utter or publish scandalous or malicious writing or writings against the government of the United States or either House of Congress or

8:19 the President with intent to defame the said government, or to bring them into contempt or disrepute, or to excite against them or either of any of them the hatred of the good people of the United States for opposing or resisting any law of the United States. It goes on and on, but we essentially get the gist of it in this passage.

8:45 Now, what did this mean at the time, tony, most students and teachers, when they read this passage, it seemed like a blatant violation of the First Amendment right to free speech. We love the ability to speak out against the government.

9:07 Why was this passed at the time? How was it able to be held up in a court of law? Right. Yeah, and there’s a lot going on here. Right. Why was it passed? Well, the Federalists in Congress really pushed for this and really made it a crime to basically be critical.

9:28 The Federalists were in power and they did not want anything critical published against them. And they did control Congress, they did control the presidency with Adams and basically saying, and we can unpack this a little bit, but it’s saying any criticism published of the government in general, but specifically the Congress,

9:50 the President, and it says with an attempt to defame the said government or bring them into contempt. Well, that’s really code words for saying anything that’s just critical at all of Adams could be interpreted as malicious. And so is there for a crime, is there for unlawful.

10:16 And I think it’s important to note that the Federalists were really pushing this in Congress. Adams was generally supportive of it. He did sign the bill into law, although he was not the one pushing for it personally. And we would see this as just a blatant violation of free speech.

10:39 However, let’s understand the historical context and place ourselves at the time. We do have a First Amendment and a guaranteeing that right to free speech and the idea that Congress itself, although it did so in this case, would not violate free speech.

11:00 But the idea of a freedom of the press and freedom of speech was really not very clearly defined, yet it was very different from our modern understanding. A free press, for example, usually meant just no prior restraint, that they would not be prevented from publishing, but that they would be responsible for what was published.

11:24 And if you publish something libelous, you could be prosecuted. This Addition Act, it’s not shown here, but it did, unusually for the time, allow truth to be a defense. So if you could prove what you said was true, it could be part of your defense and get you off.

11:45 It also allowed juries, again unusually rather than judges to decide these seditious effects from some speech or some writing. So at the time, both of those were pretty liberal minded clauses. And also the laws were set to expire in March 18.

12:09 So they were specifically that was outwardly seen as a temporary emergency measure. If you’re more cynical, you might say that the Federalist put that limiting clause on so that the Republicans could not thus turn it against them.

12:31 If they won Congress. So either way, the law really made it illegal to criticize the government. Right. And we would see that as a blatant violation of free speech. And it allows if a fine of up to $2,000

12:54 and up to two years imprisonment for criticizing the government. Yeah. As you mentioned here, we have section three, which you were just talking about, that truth was a defense, which I think is again, from a modern standpoint,

13:16 we take that for granted, that you could bring facts into a court of law. But as you were saying, the common law precedents at the time didn’t allow for that. Now how does this relate to The Federalist political stance?

13:38 Why were they so concerned with this concept of ordered liberty? The idea that you need to be responsible about what you publish. Right. I do think that the stances of the respective parties is important here.

13:58 The Federalists, as you say, we’re definitely interested in ordered liberty. They’re usually from not exclusively, but usually from the Northeast and also from really a lot of the merchant classes and sort of upper classes. But even that is not always true.

14:19 They do have a broad popular support as well. But I think it’s important to note that The Federalists we have this law and it’s passed for pretty partisan reasons, but it’s executed by the Adams administration in a very partisan way.

14:40 Right. This is just clearly a partisan. Charged law to shut down criticism by the opposition. There’s just no way around it. It’s a highly partisan law. It’s prosecuted and executed in a very

15:02 partisan way as well by the Adams administration. Yeah definitely. We can get into some of the specifics. They’re all fascinating narratives, each individual one. And unfortunately, we don’t have the time to go into too great a detail. But could you just give us some general background on these three figures?

15:26 They were the most prominent of the accused, right? Well, there’s 25 arrests made. I think we should mention that generally there’s 15 indictments and there’s ten trials and convictions under the Seduction Act.

15:49 They’re all members of the opposing party, if you will, or opposing political ideology of the Democratic Republicans. Matthew Lyon is a very interesting case because he’s actually a sitting member of Congress, right? So in 1798, he’s in Congress from Vermont.

16:12 He’s accused and convicted for printing, as well as stating in some campaign speeches criticisms of the Adams administration. So he’s just campaigning as a member of Congress and as someone who’s critical of the Adams administration.

16:34 And he’s actually convicted and thrown in jail and actually runs a reelection campaign from jail. It’s really pretty wild. And so runs this campaign from jail and he’s actually reelected.

16:57 I don’t know if there’s many precedents in the modern era, but it’s hard to imagine today that someone who’s in Congress would be convicted of criticizing the opposition and then actually running campaign and be elected off from jail. He sort of becomes a cost celebrate,

17:21 sort of a celebrity for the Democratic Republicans. He can’t pay the fine. So there’s some fear that he’ll be in jail longer than this four month term, his four month sentence. And so the Democratic Republicans actually raised money for his release fine.

17:41 I think Madison and Jefferson even pay out of their own pockets that contribute to this cause. I think they raised twice as the amount of the fine. And so he’s able to secure his release and continues to be critical of the Adams administration afterwards. But Cooper is another publisher who’s jailed.

18:05 His remarks were a little bit more temperate in terms of just saying that this additional law itself was unconstitutional. Pretty critical of the war effort. He’s jailed as well. Callendar is probably the most interesting case in many ways.

18:26 He’s really a very partisan and sort of intemperate, immoderate newspaper publisher, publishes all sorts of really nasty libelous attacks on the Adams administration. He is convicted as well.

18:47 And interestingly, he will also publish some really nasty stuff against the Democratic Republicans over the next few years. And he’s actually the one who made the initial charges that Sally Hemmings had birthed a child or children by Thomas Jefferson.

19:11 And of course, at the time, it was just seen as sort of a libel, less scandalous attack, a partisan attack. But of course, now, today we know that it’s very likely the case that she did father his children. So really some interesting things going on there

19:32 with Calendar but also with Lyon and with Cooper. They’re prosecuted by the Adams administration for really not much more than really being very critical of the administration. One Port fellow is even arrested for making just drunken remarks.

19:57 These were not printed. He just said he hopes that Adams, I think, was shot in the rear by a can just sort of drunken remarks and he was prosecuted as well. So some of these charges boarded on the absurd, but all of them in many

20:19 ways were very partisan as this law was prosecuted and it did eventually expire. Sure yes. When you were talking about Matthew Lyon, one figure who comes to mind, who will actually talk about in our next

20:41 webinar is Eugene Debs running for office from prison. And weldevs of course was not successful. It’s an interesting connection, definitely. Now you said that ultimately the act just disappeared.

21:03 It wasn’t renewed by Congress. Before that happened, though, what was the Democratic Republicans response? They obviously would not take this sitting down. What did they propose to do to fight this act? Right? Well, some said no more, though,

21:27 very importantly, that the law was just unconstitutional. Right. They’re making appeals, which I think is very important to the principle of free speech, to appeals to that First Amendment right, because it said congress shall not violate the right of free speech or free press. And Congress is doing that.

21:49 Other members, particularly James Madison, but then even the Vice President at the time, which is again pretty interesting to think about actually submit some resolutions to some state legislatures, specifically Madison with the Virginia

22:11 resolution and Jefferson with the Kentucky resolution. And what these are, there are resolutions that call the sedition act of the Adams Administration unconstitutional. Okay. And they provide different remedies for that.

22:34 The more moderate one, I would say by Madison said that the act was an unconstitutional violation and a proper remedy would be, as he said, to basically elect new people,

22:55 basically throw the funds out, we’ll elect new people and there’ll be a Republican remedy for this problem. He also did say that the states could interpose themselves between the people and the national government, but he didn’t really define very carefully or very exactly what he meant by that.

23:20 The much more radical resolution, I would argue, is definitely the Kentucky resolution. And in that there’s language talking about nullification, okay, that the states could declare acts of Congress null and void.

23:41 And obviously this will be used later on. It will be sort of set a precedent for later nullification debates in the 19th century. I will say that it’s pretty ironic that Jefferson is sort of his brainchild, considering he’s a strict constructionist of the Constitution.

24:03 He strictly interprets its words and want only its words to apply. And yet this is in many ways an extra constitutional doctrine, just not in there, that the states can nullify federal laws. These resolutions are actually submitted. They encourage other states to take them up and support them.

24:25 Ironically, most other states actually either reject them outright or actually comment on them and declare them to be unconstitutional themselves. The idea of this idea of nullification especially so the other states who are

24:47 either silent or just outright reject this idea, this doctrine of nullification. And so this Sedition Act in many ways really stirs up a lot of sort of constitutional debate and thinking, which I think is very healthy. I have a very healthy sign of a democracy, of a republic back in the 1790s.

25:13 All these ideas, a lot of precedents are being set and a lot of ideas are being debated around the Constitution and its meaning. And they sort of lay a lot of the groundwork for the shaping of the Constitution and the debates of the 19th century. Definitely. Yeah.

25:35 I think it’s fascinating, as you said, that Jefferson was the Vice President when he wrote this, which by modern standards could be treasonous to propose that states nullify a federal law. It could go downhill very quickly.

25:59 Yeah, I don’t know if it’s actually treason, maybe is the right word, but it certainly raises a number of issues. He’d certainly be traitorous, at least in a political sense, to the administration. Right. That you’re fighting the administration from within. It would be sort of an active political treason.

26:22 And this whole idea of a loyal opposition, things were very different. Right. There’s a very different historical context. The setting of the new nation is very important to talk about with students, I think. Sure. So now, of course, Jefferson and the Revolution of 1800, the Democratic Republicans sweep

26:45 into office and ensure that the Sedition Act will not be given new life. So what is Tony Williams’ take on how to fight this Sedition Act? Is it through constitutional measure of voting and just waiting to take office?

27:08 What is your take, your final say on the matter? Right. Well, Jefferson say was that, yeah, they didn’t renew the Sedition Act, but he himself went after federalist newspaper. So you sort of had this partisanship going both ways in the early Republic, which is maybe not terribly surprising.

27:34 I think that in the end, this entire brouhaha over the Sedition Act, I think that it was an unconstitutional act. I think it was a high latent charge partisan. It was just kind of a blatant partisan attempt to shut down the opposition and to shut down criticism

27:58 of the administration of a political party. And it’s clearly wrong, clearly unconstitutional, and not only in our modern lights, but I think at the time as well. So if it were 1998 or 2020 as opposed to 1798,

28:21 you would have had probably the Supreme Court stepping in and declaring unconstitutional because of the First Amendment. But back then you didn’t for the reasons we’ve already talked about, but clearly an unconstitutional act. Clearly an act of highly charged partisanship. Sure. Well, as we have alluded to,

28:44 we will be continuing our discussion of sedition acts. Our next episode will be on the Sedition Act of 1918, so be sure to stay tuned and we will see you then. Thanks so much, Tony, for joining me in this discussion. Sure things will become a perennial question about

29:07 free speech and warfare, so I look forward to continuing this conversation. Right. All right, thanks everyone, for joining.