THE PARTISAN PRESS

Before Internet and satellites and cable TV, before radios and telegrams and the Pony Express, how did people get news? How did citizens learn what the newly emerging Federalist and Jeffersonian political parties stood for? Newsapers were vital sources of information and opinion in this time of upheaval, but they were notoriously partisan. Party leaders helped to establish newspapers and funnelled printing business to their publishers. In return, editors and publishers used their newspapers to advocate the "party line."

Newspapers often did publish documents in their entirety or letters from public figures. So they did provide some reliable information. However, they also printed large amounts of what today would be called "disinformation," baseless charges against opponents, such as the claim of one pro-Jefferson paper that his archrival, President John Adams, intended to marry his son John Quincy to a British princess as the first step toward establishing a dynasty on monarchical principles. The Aurora, a Jeffersonian paper published in Philadelphia, referred to Adams as "old, querulous, Bald, blind, crippled, Toothless Adams." Pro-Federalist newspapers returned the compliment. They alleged, for example, that Jefferson was an atheist and that he supported the Reign of Terror in France.

Political parties were not supposed to exist in the new republic. The Constitution provided, for example, that the person receiving a majority of the votes in the Electoral College would become president; the person receiving the next largest number would become vice president. This meant, in 1796, that Adams won the presidency and his rival Jefferson the vice-presidency. It meant, in 1800, that, in an effort to make sure nothing of the sort happened again, all of Jefferson's electors pledged to vote for him and for Aaron Burr. This created a tie which, under the Constitution, only the Federalist-controlled House of Representatives, whose members had been elected in 1798, not in 1800 when the Jeffersonians carried the elections, would choose the next president. Parties lacked legitimacy, in other words, but they nonetheless formed. Americans had to learn to adapt their political practices to this unintended and undesired reality. One key element in this process was to learn to distinguish between political opposition and sedition. This came to the fore in 1798 when the Federalist-controlled Congress passed, and President Adams signed, the Sedition Act. [To read the full text of the measure, click on the image.] How did Americans come to learn to appreciate the difference between opposing administration policies and criticizing administration officials, on the one hand, and treason on the other?

Introduction: Twenty-five Republican editors and printers were prosecuted under the Sedition Act (1798); ten were convicted. The relevant section of the law read:

if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing 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, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of 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, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

Political opponents routinely try to bring one another into "disrepute." Virtually any criticism, no matter how mild or carefully phrased, will tend to threaten the reputation of the person being criticized. So the law threatened to silence criticism of the administration, no matter how well founded or temperately expressed. American politics, moreover, was not noted for its moderation or gentlemanly character. The accusation that President Adams intended to establish a political dynasty on monarchical principles, for example, violated several provisions of the law. It was false, It defamed him. It tended to "excite" against him "the hatred of the good people of the United States." Charges made by federalist newspapers against Jefferson were equally "malicious" and "scandalous."

Chronology:

1795 -- John Jay concludes a treaty with Great Britain which abrogates several provisions of the 1778 Treaty with France; in retaliation French naval vessels seize a number of U.S. merchant ships

1796 -- President George Washington sends Charles Cotesworth Pinckney to negotiate with France but the French government refuses to acknowledge his credientals

1796 -- John Adams elected second president; rival Thomas Jefferson elected vice president

1797 -- Adams sends John Marshall and Elbridge Gerry to join Pinckney in France. French Foreign Minister Talleyrand still refuses to receive it. He demands, through intermediaries known as "X," "Y," and "Z," a $250,000 bribe.

1797 -- Word of the "XYZ Affair" leads to much anti-French sentiment in the U.S.

1797-1800 -- Undeclared naval war (the "Quasi-War") between France and the United States

1798 -- Passage of the Alien and Sedition Laws

1799 -- Jefferson and James Madison write the Kentucky and Virginia Resolutions which claim that individual states can nullify federal laws if they violate the Constitution

1800 -- Jefferson defeats Adams for the presidency

1801 -- Alien and Sedition Laws lapse

Undeclared war against France; President Adams' call for a major increase in military spending, vigorously opposed by the Jeffersonians; the "XYZ Affair" which heightened fears of French influence in the United States -- these created the context in which the Federalists pushed through the Alien and Sedition Acts. One of the first charged under the Sedition Act was Luther Baldwin of Newark, New Jersey. His "crime" speaks volumes about the overheated atmosphere of the day.

In July 1798, President Adams and his wife Abigail travelled through Newark on their way home to Massachusetts. The president's supporters cheered as the city gave him a twenty-one gun salute. In a tavern owned by John Burnet, himself an Adams man, one of the customers allegedly said "There goes the President and they are firing at his arse." Baldwin then allegedly said he "did not care if they fired thro' his arse." Burnet had Baldwin arrested. He was convicted of speaking "seditious words tending to defame the President and Government of the United States" and fined $150, a very large sum in 1798, and sent to jail until he paid the fine.

The real targets of the law, however, were not tipplers who made crude jokes at the president's expense but pro-Jefferson newspaper publishers and editors. In June, before the Sedition Act was passed, Supreme Court Justice Richard Peters issued a warrant for the arrest of Benjamin Bache, publisher of the Philadelphia Aurora on the charge of "libeling the President and the Executive Government in a manner tending to excite sedition and opposition to the laws." In early July, John Daly Burk, editor of the New York Time Piece, was arrested for "seditious and libelous" statements against Adams. Before he could stand trial Bache died of yellow fever in September. Burk agreed to be deported. By the time Adams' term was up, and the law expired, ten people were convicted for sedition. They included William Duane, who succeeded Benjamin Bache as editor of the Aurora and James Callender who edited Virginia's Richmond Examiner.

Thomas Jefferson, assisted by his close associate and friend James Madison, struck back via the Kentucky and Virginia Resolutions. The Alien and Sedition laws violated the Constitution, both believed. But the practice of judicial review, i.e., the challenging of the constitutionality of a measure in the courts with the Supreme Court having the final say, had yet to emerge. Nor did such a solution appeal to Jefferson or Madison. The justices were all Federalists, and the chief justice, Samuel Chase, claimed "There is nothing we should more dread than the licentiousness of the press." He presided over several trials under the law, sitting as a circuit judge, and handed down stiff sentences. Jefferson and Madison, the "father of the Constitution," turned instead to the doctrine of nullification, based upon a particular reading of the Tenth Amendment. Here is how Jefferson put it in the third of the Kentucky Resolutions:

. . . it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people;" and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states, or to the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment, by the United States, of the freedom of religious principles and exercises, and retained to themselves the right of protecting the same, as this, stated by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference; and that, in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that "Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press," thereby guarding, in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violates either throws down the sanctuary which covers the others, -- and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of the Congress of the United States, passed on the 14th of July, 1798, entitled "An Act in Addition to the Act entitled 'An Act for the Punishment of certain Crimes against the United States,'" which does abridge the freedom of the press, is not law, but is altogether void, and of no force.


Gilbert Stuart's portrait of James Madison

Madison's argument was considerably more detailed but came to a similar conclusion:

Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press. It has accordingly been decided, by the practice of the states, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigor of those yielding the proper fruits. And can the wisdom of this policy be doubted by any one who reflects that to the press alone; checkered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression; who reflects that to the same beneficent source the United States owe much of the lights which conducted them to the rank of a free and independent nation and which have improved their political system into a shape so auspicious to their happiness? Had Sedition Acts, forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing, at this day, under the infirmities of a sickly Confederation? Might they not, possibly, be miserable colonies, groaning under a foreign yoke?

Virginia's third resolve which Madison wrote, like Kentucky's, asserted that the Tenth Amendment gave states the power to nullify unconstitutional acts of Congress:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact--as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.

Madison subsequently wrote, in defense of the resolutions, a Report on the Virginia Resolutions. It contained this argument for state sovereignty:

It appears . . . to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority, of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.

Stop and Consider:

The ninth and last Kentucky Resolution called upon the governor to appeal to the other states to take up the question of the Alien and Sedition laws and the powers of the states. In it Jefferson made a powerful appeal for the notion of limited government and the dangers to it posed by the Alien and Sedition measures:

Resolved, lastly, That the governor of this commonwealth be, and is, authorized and requested to communicate the preceding resolutions to the legislatures of the several states, to assure them that this commonwealth considers union for special national purposes, and particularly for those specified in their late federal compact, to be friendly to the peace, happiness, and prosperity, of all the states; that, faithful to that compact. according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation; that it does also believe, that, to take from the states all the powers of self-government, and transfer them to a general and consolidated government, without regard to the special government, and reservations solemnly agreed to in that compact, is not for the peace, happiness, or prosperity of these states; and that, therefore, this commonwealth is determined, as it doubts not its co-states are, to submit to undelegated and consequently unlimited powers in no man, or body of men, on earth; that, if the acts before specified should stand, these conclusions would flow from them -- that the general government may place any act they think proper on the list of crimes, and punish it themselves, whether enumerated or not enumerated by the Constitution as cognizable by them; that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge, and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction; that a very numerous and valuable description of the inhabitants of these states, being, by this precedent, reduced, as outlaws, to absolute dominion of one man, and the barriers of the Constitution thus swept from us all, no rampart now remains against the passions and the power of a majority of Congress, to protect from a like exportation, or other grievous punishment, the minority of the same body, the legislatures judges, governors, and counselors of the states, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the states and people, or who, for other causes, good or bad, may be obnoxious to the view, or marked by the suspicions, of the President, or be thought dangerous to his or their elections, or other interests, public or personal; that the friendless alien has been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather has already followed; for already has a Sedition Act marked him as a prey: That these and successive acts of the same character, unless arrested on the threshold, may tend to drive these states into revolution and blood, and will furnish new calumnies against republican governments, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron; that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights; that confidence is every where the parent of despotism; free government is founded in jealousy, and not in confidence; it is jealousy, and not confidence, which prescribes limited constitutions to bind down those whom we are obliged to trust with power; that our Constitution has accordingly fixed the limits to which, and no farther, our confidence may go; and let the honest advocate of confidence read the Alien and Sedition Acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits; let him say What the government is, if it be not a tyranny, which the men of our choice have conferred on the President, and the President of our choice has assented to and accepted, over the friendly strangers, to whom the mild spirit of our country and its laws had pledged hospitality and protection; that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice.    

Other states refused to follow Kentucky's and Virginia's example, however. Instead Federalists charged Jefferson and his supporters with wishing to dissolve the Union. As Jefferson put it in a second set of Kentucky Resolutions passed in 1799:

. . . the principle and construction, contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop not short of despotism -- since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers.

Here was indeed a dilemma. As Jefferson claimed, by not protesting the Alien and Sedition Laws, states were conceding to Congress the power to set aside the first ten amendments to the Constitution. On the other side, Jefferson's and Madison's proposed solution was equally or even more mischevious. Granting individual states the power to nullify specific acts of Congress undercut the very idea of federal authority. Each side to the dispute, in sum, espoused extreme and unworkable positions. Federalist claimed that Congress could exercise powers explicitly denied it by the Bill of Rights. Jeffersonians held individual states could set aside any federal law that a majority of its state legislators found objectionable. Federalists threatened the notion of limited government; Jeffersonians threatened the viability of the union.

On March 27, 1800 the Senate cited William Duane, the editor of the Aurora for contempt. The previous month, Duane had published the text of a proposed Federalist measure that would have set up a special committee to review electoral college ballots and decide which ones should be counted. The committee would consist of six Senators, six members of the House, and the Chief Justice. Since Federalists controlled both houses and Chief Justice Chase was an outspoken opponent of Thomas Jefferson, the bill would have put that party in a position to dictate the next president. In his story, Duane mistakenly wrote that the bill had already passed the Senate. Federalists in the Senate were deeply embarassed by the premature disclosure of the plan and used Duane's error as an excuse to create a "committee on privileges." The committee determined that he had violated Senatorial privilege by publishing the bill and that he was guilty of inciting "the hatred of the good people of the United States" against members of the legislative branch. Duane was ordered to appear in the Senate chamber to hear the charges and to speak in his own defense before the Senate decided his punishment. Duane won a two-day delay to consult his lawyer. He did not return on the 26th which led to the Senate citing him for contempt. What saved Duane from arrest and imprisonment was Jefferson's victory over Adams later that year and the Federalist loss of both the House and the Senate. Jefferson quickly pardoned those convicted under the Sedition Act.

Jefferson's victory helped bring the controversy to an uneasy end. So did Adams' success in finally negotiating peace with France. The Sedition Act automatically expired on March 3, 1801, the last day of Adams' term. The next day brought to power in Jefferson and in Madison, who became Secretary of State, men who were convinced that it was unwise for governments to seek to muzzle the press, even when newspapers published scurrilous and even libelous stories. On the other hand, they also had weakened substantially the very government they now sought to administer. The doctrine of nullification would continue to haunt the nation, being taken up by slaveholding interests led by John C. Calhoun in the late 1820s. It provided much of the intellectual underpinning for the secession movement.

Summary: Americans had to learn how to live with their new republic. They had to decide how to differentiate between opposition to a political party and/or policy and opposition to the nation. They needed, but did not possess, a notion of "legitimate opposition." They also needed a way in which disputes over the constitutionality of specific laws could be settled. They needed, but again did not possess, a doctrine of "judicial review" in which the Supreme Court would have the final word. This is a solution Madison explicitly rejected. Nonetheless, the new Chief Justice, John Marshall, himself a Federalist and an Adams appointee, would establish this doctrine over his long tenure in office. The notion of legitimate opposition, as Richard Hofstadter has shown, took just as long. It required Americans to accept the legitimacy of political parties, something that would not occur until the presidency of Andrew Jackson.

Reflect and Respond: