Ch. 4.1. Prosecuting the Sedition Act, 1

This and the next two sub-chapters (i.e., all of the rest of ch. 4) provide a closer look at the evidence for prosecutions under the Sedition Act by drawing on the recent research of Wendell Bird, in his essay: “New Light on the Sedition Act of 1798: The Missing Half of the Prosecutions,” Law and History Review 34 (2016): 541-614.

*Note: these three sub-chapters (4.1, 4.2, and 4.3), while still required for the next quiz, are optional for the essay. The specifics discussed in them may still appear in a quiz, but you do not have to consider them for the upcoming midterm essay. Many students find these sub-chapter helpful because they go into detail about specific prosecutions for seditious speech.

A spate of recent books, and even a smash Broadway musical (Hamilton), have celebrated the Federalist Party for state-building, active government, decisive leadership, forward-looking plans, and other political virtues. However, the rehabilitation of the Federalists cannot succeed without successfully confronting the Alien and Sedition Acts, which the Hamiltonian Federalists sponsored and which the recent books tend to speak softly about (and to which the musical does not give a song).

The Sedition Act of 1798 was increasingly viewed as the Achilles’ heel of the Federalists, with its criminalization of “writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government,” and with the usual list of fourteen prosecutions under it of newspaper editors and other individuals. But what if there were more than twice as many people prosecuted; what if the Federalists had a second Achilles’ heel?

The controversy over the Sedition Act involved whether the First Amendment’s protections were narrow or broad, and brought into conflict two contradictory views of freedoms of press and speech. The narrow view, most forcefully stated by Sir William Blackstone and Lord Chief Justice Mansfield, was that “liberty of the press… consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published” (seditious libel). That view also was that liberty of speech similarly left criticism of government unprotected (seditious words). The Sedition Act was interpreted to prohibit both. That narrow view was adopted by a number of the United States Supreme Court justices as they presided over prosecutions under the Sedition Act during 1798–1800…

The opposing liberal view, articulated by James Madison and Thomas Jefferson in the Virginia and Kentucky Resolutions during the crisis of 1798, was that liberties of press and speech were mockeries if they did not protect criticism of government and protect against subsequent restraints such as seditious libel prosecutions.

The stakes in the controversy went well beyond the Sedition Act and the First Amendment and a right to criticize government. They included whether Americans had a right to publish opposition newspapers and to establish an opposition party, and the outcome of the nation’s first effort to suppress that opposition. They included the growth of the nascent political parties toward maturity, the Federalist loss of power to the Republicans in the election of 1800, and America’s first peaceful transfer of political power between parties. The stakes in the controversy also included provoking Republican thought to articulate a liberal view of First Amendment freedoms, and stimulating thought about the proper response to an administration’s violation of the Constitution.

The Recognized Prosecutions and the Suspicions of Additional Ones

In those partisan prosecutions, beginning even before the Sedition Act took effect, the leading Republican newspaper editors in America’s two largest cities, Benjamin Franklin Bache of Philadelphia’s Aurora, and John Daly Burk and James Smith of New York’s Time Piece, were arrested and charged with seditious libel under federal common law. Shortly after the Sedition Act was signed by President John Adams, the owners or editors of three more Republican newspapers were prosecuted: Congressman Matthew Lyon, owner of a Vermont newspaper, Thomas Adams, editor of Boston’s Independent Chronicle, and William Durrell, editor of the Mount Pleasant Register in New York. Also prosecuted were supporters of a liberty pole (called a “sedition pole” by most Federalists), Benjamin Fairbanks and David Brown in Dedham, Massachusetts, and tavern critics of President Adams, Luther Baldwin and Brown Clark in Newark.

Then a lull in prosecutions occurred until mid-1799, as the deadline approached for filing cases in order to reach trial before the elections of 1800, when four more prosecutions were launched of Republican newspaper editors: William Duane, Bache’s successor at the Philadelphia Aurora, Ann Greenleaf of the New York Argus, Charles Holt of the New London Bee, and Anthony Haswell of the Vermont Gazette; in addition to prosecution of a state legislator, Jedidiah Peck, for circulating petitions denouncing the Sedition Act as unconstitutional.

Finally, in the spring of 1800, Justice Samuel Chase turned his circuit ride into a search and destroy mission for sedition, leading to indictments and trials of two more editors and writers: Thomas Cooper of the Northumberland Gazette, and James T. Callender for his book The Prospect Before Us.

Those three common law seditious libel prosecutions and fourteen Sedition Act prosecutions are the canon of prosecutions discussed in… books and articles about… the Sedition Act. Recent scholars generally continue to describe only those prosecutions… However, there has always been a suspicion that there may have been at least a few additional prosecutions… Surprisingly, no one thoroughly combed through the unpublished papers of Timothy Pickering, the secretary of state during most of the years the Sedition Act was in force, who was the official in charge of its enforcement. Although a dozen of his letters about recognized cases were regularly cited, another dozen dealing with recognized cases were never cited, nor were eighteen letters dealing with the additional cases, attempted indictments, and instructions to prosecute.

Further, no one writing about the Sedition Act noted that the case reports of the Fries Rebellion trials referred to the nontreason cases as generally being brought under the Sedition Act, or that the unpublished federal court records confirmed that all of the nontreason Fries cases were brought under the act. [The Fries Rebellion, led by John Fries and others in SE Pennsylvania in 1799, tried to prevent the collection of a new, “direct” tax, including on houses, that Congress passed in 1798 to finance the Quasi-War; see also the next section below.]

Those federal court records show that four of the Fries Rebellion prosecutions were brought under Section 2 of the Sedition Act (criminalizing “writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government,” Congress, or the president), and that the remaining nontreason prosecutions were brought under Section 1 of that Act (criminalizing conspiracies and combinations “to oppose any measure or measures of the government” or, among other things, to “counsel, advise or attempt to procure any unlawful assembly, or combination”).

All but one of the newly discovered cases were in federal circuit court, where an individual Supreme Court justice presided with a district court judge. In addition, attempted indictments in at least three other cases, and instructions to prosecute in at least six other cases (involving eight individuals) under the Sedition Act, can be documented.

These additional cases show other victims during the crisis of the First Amendment in 1798–1801, and demonstrate that Sedition Act prosecutions, and accompanying chilling of First Amendment rights, occurred on more than twice the scale previously understood.