Federalist Senator Humphrey Marshall of Kentucky penned “The Aliens: A Patriotic Poem” in May 1798 when the Senate was debating the Alien Friends bill. Marshall paid for its publication and circulated a few copies among government officials and friends in and around Philadelphia. In seventy-four stanzas, Marshall detailed the ways he thought immigrants exacerbated America’s national security crisis. While acknowledging that some aliens were peaceful, industrious, and capable of becoming good citizens, he raised alarms about those aliens who wanted to sow discord, disagreement, and disunion. He feared that these immigrants and their radical ideas would infect Americans’ minds and imperil the Republic. His poem was just one effort to defend the Alien bill, the Naturalization Act, the Sedition Act, and other policies that most Federalists believed were necessary to protect the Republic from threats—internal and external. These Federalists’ reactions or overreactions became the first test of the Constitution’s provisions regarding freedom of speech, but as other articles in this special issue demonstrate, it would not be the last.
Although the 1795 Jay Treaty with England and treaties with Spain and Native Americans gave the United States respite from national security concerns, it precipitated a new crisis with France, America’s one-time ally. France believed the Jay Treaty violated the Franco-American treaties of 1778 and in retaliation intensified their attacks on American shipping and refused to receive America’s new minister. This conflict became known as the Quasi-War—a series of naval conflicts that threatened to escalate into full-scale war. John Adams, upon his inauguration in March 1797, immediately had to address this new crisis.
For many Americans, this crisis was not simply a foreign policy emergency but a domestic one and another in a series of crises that occurred throughout the decade. Federalists believed the growing European radicalism and chaos as evidenced by the French Revolution, the ongoing war on the continent, and the black-led Revolution in Haiti imperiled American stability and security. Throughout the 1790s, many French, Irish, Scottish, and other refugees arrived in the US trying to escape political persecution, war, and turmoil. Many, who had been politically active at home, were alarmed that they did not find a refuge but similar threats to liberty.Footnote 2 These aliens were the ones that were of most concern to Marshall. He may not have been as sure about the arrival of white planters and their enslaved property fleeing the Haitian Revolution. Neither Federalists nor Republicans knew whether to embrace or fear these white refugees. For many Americans, they were fellow slaveholders, and yet many of them were active royalists and aristocrats—not republicans. They also brought with them enslaved people who had witnessed a slave uprising and whose presence might threaten peace among Americans’ enslaved population.Footnote 3 Marshall and others feared that these refugees and immigrants’ ideas would act as a contagion infecting Americans—ultimately leading the Republic’s demise.
Federalists had proof of French mischief in the actions of its last two ministers. In 1793, Edmund Genet threatened to appeal directly to the American people rather than honor President George Washington’s policy of neutrality. During the Election of 1796, Pierre Adet publicly encouraged Americans to vote for Thomas Jefferson and to support the French Revolution in a series of letters printed in Philadelphia’s Aurora newspaper.Footnote 4 Other Frenchmen, like Constantin François Chasseboeuf Volney, who espoused radical political views, roamed the country spreading ideas and rubbing elbows with prominent Republicans such as Jefferson.Footnote 5 Irish immigrants who had been members of the revolutionary United Irishmen at home established a chapter in America intent on continuing to support their cause. In the western states and territories, Federalists could also point to various schemes by the French and Spanish—Republicans would have added the British to this list—to separate the territories from the US.Footnote 6 Federalists, occasionally joined by Republicans, saw evidence everywhere of foreign plots—sometimes with the cooperation of willing or unwitting American citizens.Footnote 7
Thus, Federalists sought ways to isolate the US ideologically and politically from Europe by passing the Alien and Sedition Acts of 1798 and other measures to protect the young Republic from foreign nations and their agents’ efforts to separate Americans from their government.Footnote 8 They used the Quasi-War to justify these measures. Republicans countered by calling Federalists’ fears imaginary and overblown. The real threat, Republicans warned, was Federalists’ attacks on Americans’ liberty through their abuse of the general government’s power. Federalists sincerely believed the circumstances warranted every action they took and sought to reframe Americans’ relationship with their government and the parameters of political discourse by raising repeatedly the specter of foreign influence as a threat to the security of the Republic.
As the crisis with France escalated, Federalists expressed concerns about foreigners exercising undue influence and scheming to separate Americans from their government. Washington made a passing reference to such dangers in his Farewell Address in September 1796. He warned that political partisanship “opens the door to foreign influence & corruption, which find a facilitated access to the government itself through the channels of party passions. Thus, the policy and the will of one country, are subjected to the policy and will of another.”Footnote 9 In his Inaugural Address, Adams went further by listing the ways foreign nations exercised influence: “by flattery or menaces, by fraud or violence, by terror, intrigue, or venality.” Consequently, “the Government may not be the choice of the American people, but of foreign nations.”Footnote 10 Voicing concern about foreign and particularly French influence in domestic politics as a direct threat to American independence was one thing. The question was how to protect against such incidents in the first place.
To address the immediate French crisis, Adams called a special session of Congress in May 1797. In his opening address, Adams denounced the French government as expected for its attacks on American shipping and refusal to receive Charles C. Pinckney as America’s new minister replacing the recalled James Monroe. He reserved most of his outrage for the speech the French President delivered when Monroe took his leave. The President warned Americans to “never forget that they own it [their liberty] to France.” They were at risk of succumbing to “the crafty caresses of certain perfidious persons who meditate bringing them back to their former slavery.” He closed by praising Monroe for fighting for his principles implying that the new minister was not up to the same standards.Footnote 11 Adams read the speech as evincing “a disposition to separate the people of the United States from the Government; to persuade them that they have different affections, principles, and interests, from those of their fellow-citizens … and thus produce divisions fatal to our peace.” The US had to convince France and the world that it was “not a degraded people, humiliated under a colonial spirit of fear and sense of inferiority, fitted to be the miserable instruments of foreign influence.” Although Adams pledged to pursue peace through negotiation by nominating envoys to France, he also said that the US had to be prepared to defend itself. In addition to military preparations, Adams implored Congress to not let France divide the people from their government but to repel all such efforts through “explicit and decided conduct.” A government established by voluntary consent and chosen by free elections was particularly vulnerable to foreign meddling and Adams pledged that he would never give up fighting for union and independence.Footnote 12
The special session was contentious from the start. The House of Representatives spent weeks debating a response to Adams’s address, with Federalists wanting to give Adams their full support and Republicans questioning whether Adams was indeed sincere about peace. In their answer, the House deplored efforts of foreign nations to separate Americans from their government. They expressed confidence that the people would resist all such efforts and prove these schemes to be impracticable.Footnote 13 Following Adams’s advice, Congress enacted some measures for military defense and approved a diplomatic mission to France. They began to address concerns about dangerous aliens when debating whether to impose a $20 tax on naturalization certificates. The bill’s supporters believed it would be an effective tool to end immigration. Harrison Gray Otis of Massachusetts, who would be a leading advocate of the Alien and Sedition Acts during the next session, argued the tax would protect against “hordes of wild Irishmen … [who] come here with a view to disturb our tranquility, after having succeeded to the overthrow of their own Governments.”Footnote 14 Like Marshall, Otis identified aliens as a threat and wanted to erect barriers to citizenship and ultimately immigration. Although this proposal failed, Federalists would enact stricter measures the next session.
As the House debated how to protect against foreign influence, Supreme Court Justices and district court judges prepared for the spring term of the circuit court. In their opening addresses, or charges, to the grand juries, they took notice of the business directly before the courts and current political issues as usual. Chief Justice Oliver Ellsworth warned a New York grand jury that political faction “poisons the sources of public confidence … [and] opens the door to foreign influence … [whose] avowed object is to separate the people from the government; and of course to prepare them by sedition & rebellion.”Footnote 15 Associate Justice James Iredell expressed similar sentiments to grand juries in Annapolis, Maryland, and Richmond, Virginia. He admonished voters to choose their elected officials wisely and warned that any official could be subject to “trial, punishment, and disgrace.”Footnote 16 Iredell made the case for the primacy of the union and its preservation. For if Americans splintered, they opened the door to a foreign nation “to foment and take advantage of our internal discords.” Vigilance, obedience to the law, and a vigorous defense, Iredell argued, would protect American independence. Thus, a man who threw “out calumny at random,” should “stand in the view of his fellow-citizens as a slanderer.”Footnote 17 While Ellsworth repeated warnings about foreign influence, Iredell called for those who invited such influence—either through intention or weakness—to be punished.
The Virginia grand jury was more than ready to comply—and in fact, had already prepared a presentment against Congressman Samuel J. Cabell of Albemarle County, which they issued the day Iredell delivered his charge. Cabell’s offence was that he had written a circular letter to his constituents in January 1797 in which he expressed “deep regret” over Adams’s election as a sign of depravity and corruption that would jeopardize peace between the US and France. Perhaps the most inflammatory line, which opened him up to charges that he was susceptible to foreign influence, mocked the very notion of war with France: “What! war with France? Impossible! … liberty and republicanism loudly forbid it—virtue wisdom, and policy deprecate it—nay, even the very heavens themselves would feel indignant at the apostacy and denounce it.”Footnote 18 The grand jury’s presentment contained no specific charges but instead offered a rebuttal and a warning to Cabell and other unnamed congressmen by accusing them of “endeavoring at a time of real public danger, to disseminate unfounded calumnies against the happy Government of the United States, and thereby to separate the people therefrom, and to encrease [sic] or produce a foreign influence ruinous to the peace, happiness and independence of these United States.”Footnote 19
The presentment precipitated a debate about elected federal representatives’ freedom of speech during a national security crisis. Cabell indignantly protested that the presentment infringed on his right to freely communicate with his constituents. He also questioned judges’ independence as they seemed to be more an agent of the executive than a check on it. Jefferson drafted a petition on behalf of Cabell’s constituents, of which he was one, asserting that free communication was “a natural right of every individual citizen.”Footnote 20 The only question was where to direct the petition. Rejecting Monroe’s advice, Jefferson chose the Virginia House of Delegates over Congress which Monroe thought best because the issue involved federal institutions. Although Jefferson agreed in principle, he thought the Virginia legislature would be friendlier and more responsive than Congress. He argued that because free correspondence was a natural right and therefore not delegated to the federal government, it remained under the states’ jurisdiction.Footnote 21 Jefferson would use these same arguments when protesting the Alien and Sedition Acts the next year.
The Cabell affair was a dress rehearsal for both the content and manner of the debate over the Alien and Sedition Acts. The House of Delegates considered Jefferson’s petition over two days in December 1797. Their first draft echoed Jefferson’s combativeness and characterized the grand jury’s actions as an attack on their fundamental rights. They asserted their right to act as direct representatives of the people. The delegates, however, did not approve this confrontational version but instead passed one that expressed their disappointment while stating that this subject was for the US Congress to consider. They instructed their senators and requested Virginia’s congressmen to pass a law defining and regulating the duties of federal grand jurors and “confining them to the presentment of such offences only as are, or shall be made penal by the laws of Congress.”Footnote 22 Here, Republicans tested the use of state legislatures as places to challenge the actions of one branch of the general government. In 1798, they used those legislatures to challenge the whole federal government. They defined the right of communication as a natural right beyond the jurisdiction of the federal government and belonging to the states. Thus, they warned that the Federalist majority would be willing to limit people’s rights and expand federal government power in the name of protecting the Republic from what Republicans believed to be manufactured hysteria about foreign influence.
Nevertheless, Federalists’ fears of foreign influence persisted. Adams reiterated these concerns in his annual message in November 1797 when Americans were awaiting news about the French mission. Adams remained wary but hopeful for success and asked for measures “to place our country in a suitable posture of defence.”Footnote 23 The House, avoiding the lengthy debate of the previous session, adopted a response that was long on general sentiment and short on specifics. As far as the war in Europe, although they hoped that the US could remain above the conflict, they acknowledged that they felt “a sense of the dangers which menace our security and peace.”Footnote 24 Senators, in their answer, were more explicit about the threat of foreign influence. Several times they called for unity among the people. Given the present dangers, they specifically called upon all branches of government “to undeceive those nations who, regarding us as a weak and divided people, have pursued systems of aggression inconsistent with a state of peace between independent nations.”Footnote 25 They sought to prevent the weakening of the people’s confidence in their government.
After enacting measures bolstering America’s military defense and taxes to pay for it, Congress tackled the issue of how to curb and defend against foreign influence domestically. Federalists championed and ultimately enacted laws regulating immigrants and dissent. The Naturalization Act increased the residency requirement from five to fourteen years, required aliens to register with federal officials, and prohibited state courts from issuing naturalization certificates. For the first time, naturalization became an exclusively federal responsibility. The Alien Enemies Act authorized the president to deport all aliens from countries with which the US was formally at war. The peace-time counterpart to this law was the Alien Friends Act, which gave the president power to deport any suspicious alien on his own authority. The Alien Enemies law never expired; the Alien Friends Act expired on June 25, 1800. Finally, Federalists enacted the Sedition Act, which punished by fines and imprisonment speech critical of the president and the government. Additionally, the law made combining for the purpose of obstructing the enforcement of a federal law the crime of seditious riot. Unlike common law sedition cases, defendants would be able to use truth as a defense and juries could decide questions of both fact and law. Ironically, Federalists believed the law represented a liberalization of common law. This law expired on March 3, 1801—the last day of the current presidential term. It was the only one to act directly upon citizens.Footnote 26
Congressional Federalists justified these measures with repeated references to the threat of a French invasion and the pernicious risk of the French using allies—either recent immigrants or American citizens—to aid their cause. For example, after listening to Republican Robert R. Livingston of New York rail against the latest Federalist proposal, Otis declared the speech “evidence of the contagion of the French mania. When a mind like that of the gentleman is so easily infected, no better evidence need be required of the necessity of purifying the country from the sources of pollution.” In his resolutions outlining a sedition bill, South Carolina’s Robert Goodloe Harper defined sedition, in part, as an effort to excite “the hatred of the good people of the United States; or to stir up sedition … or to abet any hostile designs of any foreign nation against the United States, their people, or Government.”Footnote 27 The danger posed by aliens and their American allies was a consistent theme in Federalists’ speeches.
Republicans protested, complained, and offered amendments to the Federalists’ proposals. They downplayed the French threat—both external and internal. They embraced a broad definition of the First Amendment’s freedom of speech and press. In their circular letters during and after the session, they embraced the cause of peace arguing that Federalist measures only provoked France and warned that the US would by default go to war as England’s ally. If Republicans were the tools of the French, then, Republicans charged, Federalists were puppets of the British. Joseph McDowell of North Carolina wrote that negotiations were “a mere deception, and that the sole object has been to bring us into the war to relieve falling Britain, and to form an alliance with that nation, to assimilate this government to that, by which a monarchy will be endeavored to be established here.”Footnote 28 The Federalist Gazette of the United States reacted to McDowell’s letter with panic. Just as Republicans warned that Federalists were trying to dupe the people into believing war was necessary, Federalists believed that Republicans, like McDowell and even Jefferson, were duped by men who viewed the government “with hatred and jealousy. The moment Congress convenes, immense numbers of crude, silly and abominable libels against the administration are sent through all parts of the country to poison the minds of the people and destroy their happiness, in the same manner as the effluvia arising from a city infected with the Yellow Fever, poisons and destroys the health of those who approach it.”Footnote 29 In the end, the Republican minority could do little to stop Federalists from passing the Alien and Sedition Acts. Even before Congress adjourned, protests began in earnest.
As Americans debated the Alien and Sedition Acts in public meetings, petitions, and state legislatures, Federalists identified a new danger and another method that foreign nations could use to sow division in the US—the private mission of Dr. George Logan to France. Logan, a Pennsylvania Republican, member of the state legislature, and a Quaker, believed through personal diplomacy he could restore peace between the US and France. He left Philadelphia in June 1798 with letters of introduction from Jefferson and Thomas McKean, the Republican chief justice of the Pennsylvania state court and soon-to-be governor. Upon his arrival in Europe, Logan enlisted the Marquis de Lafayette in arranging both formal and informal meetings with several French officials. He returned to the US that fall with what he believed were important concessions from France—promises to lift the embargo, free American prisoners, and negotiate a new treaty in good faith. He conveyed this information to the public and, in private meetings with Adams and Secretary of State Timothy Pickering. They received Logan politely but had already learned of French concessions through official diplomatic channels. They only betrayed their frustration with Logan at the end of their meetings. Pickering closed by telling Logan that “the government does not thank you for what you have done.” Adams succumbed to his temper when replying to the French promise to negotiate with anyone chosen by the US by retorting only if he sent James Madison, William Branch Giles of Virginia, or even Logan himself. Adams insisted that “I’ll send whom I please.” Logan was not impressed by Adams’s outburst.Footnote 30
Federalists in the House were alarmed by Logan’s mission and the potential dangers posed by private diplomacy. Such missions undermined the Executive’s authority and threatened the Republic. They did not believe someone as “obscure” as Logan could have acted on his own and not as an agent of the Republican Party. Harper warned that such missions were the first step of an alliance between domestic factions and foreign nations. He inveighed, “It is from this quarter, from the introduction of foreign influence, through the medium of domestic faction, that republican Governments are especially menaced with destruction.” Footnote 31 John Rutledge, Jr. of South Carolina explained that because France employed such tactics in Holland and elsewhere, Americans should expect it and guard against it by punishing such behavior by fines and imprisonment.Footnote 32
Republicans were dismissive of Federalists’ concerns. On one hand they praised Logan’s initiative and questioned the ability of one man to undermine a whole government. On the other, they were confident that any wayward private diplomacy could and would be punished under the Constitution and existing laws—all the while pleading for delay, as Adams had not provided the promised information. Joseph Eggleston of Virginia voted against the bill, which “contemplates the prevention of imaginary evils.” He warned, “In guarding against an ideal danger, we shall incur the real danger of too much increasing the powers of Government.”Footnote 33 Republicans also raised concerns that the bill would prohibit communications necessary for full participation in international trade, thus criminalizing private economic activity. For Republicans, this bill was more evidence of Federalists’ expansion and abuse of power. Still, Federalists insisted on passing a law, known as the Logan Act, prohibiting citizens from talking to foreign governments.Footnote 34 They attempted to restrict Americans’ speech beyond the country’s borders.
As in Cabell’s case, Federalists moved against perceived dangers before the formal adoption of the Sedition Act through common law prosecutions of seditious libel. After July 1798, they used the law itself to try to silence their critics. Legal historian Wendell Bird has found evidence of hundreds of prosecutions for sedition, demonstrating that Federalists cast a much wider net than was previously understood.Footnote 35 Federalists indicted Republican editors in hopes of shutting down their newspapers and preventing their pieces from being reprinted throughout the country. Many of the highest-profile trials happened in the fall of 1800 at the height of the presidential election campaign where Federalists had ample opportunity to associate Republicans with ideas and actions which they believed threatened the nation. Several cases made the issue of foreign influence and the accused’s loyalty to the US their focus.
Congressman Matthew Lyon of Vermont was the first to be prosecuted under the Sedition Act. Lyon published a newspaper before his election and was a vocal and abrasive Republican in Federalist New England. As a congressman, he drew attention to himself by insisting that the House formally excuse him from attending the ceremonial presentation of the chamber’s answer to the President’s opening message and participating in a fight on the House floor after trading insults with a Federalist member from Connecticut, for example.Footnote 36 Among the charges against Lyon was one for publishing and reading in public a letter from an American in Paris, Joel Barlow.Footnote 37 Barlow had gone to Paris as an agent of the Scioto Land Company in 1788. After becoming an enthusiastic supporter of the French Revolution, he was granted French citizenship in 1792. Despite this, he served as an American diplomat to Algiers and negotiated treaties with Tripoli, Algiers, and Tunis in the mid-1790s. Barlow’s commitment to republicanism and the Franco-American friendship made him believe that he could play a pivotal role in reestablishing peace between the two nations, like Logan.Footnote 38
What made Barlow’s letter and Lyon’s implicit endorsement so dangerous was that both seemingly favored the French over Americans. For Federalists, the letter and Lyon’s behavior were concrete evidence of foreign influence. In the letter, which Barlow clearly intended to be widely distributed, Barlow warned of war between the US and France, blaming the American government, especially Adams. He stated that if Americans had truly understood the breakdown in trust between the two nations, then President Washington would not have recalled Monroe and replaced him with Pinckney. Furthermore, Adams would not have delivered a “bullying speech” at the opening of Congress or the Senate given its “stupid answer.” In a report to Congress on French relations, Pickering discussed Barlow’s letter, which condemned the US for “Not an act of the Government, but an act of the people.” It was Adams’s election—an act of the people—not government policy that triggered France’s order to capture American ships and imprison American sailors.Footnote 39 Moreover, Lyon, by calling attention to Barlow’s letters and contacts in France, promoted a self-appointed agent and undermined the constitutionally chosen representatives of the American people—the same as the danger posed by Logan’s private mission. One of the charges against Lyon was for “assisting, counselling, aiding, and abetting the publication of the [letter].”Footnote 40 Lyon defended himself by arguing that the Sedition law was unconstitutional, there was no malice in his publication of the letter, and finally, the contents were true.Footnote 41 The jury convicted Lyon, and he was sentenced to jail and fined. While in jail, he successfully ran for reelection and his constituents paid his fine. Upon his release, he proceeded immediately to Philadelphia where the House tried and failed to expel him.
Federalists’ most elusive target was Philadelphia’s Aurora newspaper edited by Benjamin Franklin Bache and after Bache’s death, William Duane. Under Bache’s leadership, the Aurora was fervently Republican and many newspapers throughout the country reprinted its articles and editorials. To Federalists, Bache often seemed to be doing the French government’s bidding by printing French Minister Adet’s letters during the Election of 1796 and French diplomatic correspondence on several occasions before Congress received translations from the secretary of state and energetically defending France, which for the Aurora meant being openly and vitriolically critical of government policies and individual officeholders, including Washington and Adams. Federalists referred to the Aurora as the “French paper” and accused its editors of being French agents whose purpose was to undermine support for the US government. For these publications, Bache was arrested for sedition under common law just weeks before passage of the Sedition Act.Footnote 42 When Bache died of yellow fever before his trial, his widow enlisted Duane, an Irish immigrant whom she eventually married and had worked for Bache, to take over editorial duties and continue in Bache’s footsteps.
Pickering, who oversaw enforcement of both the Alien Friends and Sedition laws, was looking for a reason to indict Duane. He found it in a July 24, 1799, article in which Duane accused the government of being under “British influence.” Duane said he had proof in the form of a letter written by Adams in which Adams complained of an appointment “of the most confidential and important trust under the government” that was dictated by British agents. He also alleged that the British secret service had distributed $800,000 in the US in 1798, implying that these funds were used to buy sway within the American government. Judges and prosecutors knew Duane possessed Adams’s letter and delayed his trial from October 1799 to April 1800. The delay meant that Duane had to be reindicted, which the government was unwilling to do, and his trial never occurred.Footnote 43 Duane effectively used truth or the threat of presenting solid written evidence of truth as a defense—the only one to do so. Federalists did not silence Duane.
Even before Federalists indicted Duane for a publication, he was arrested for seditious riot after an incident involving a petition and a gun outside of St. Mary’s Church in Philadelphia on February 9, 1799.Footnote 44 After services that Sunday, Duane and three other Irish immigrants solicited signatures on a petition asking for repeal of the Alien Act. When tempers flared between those who supported the law and those opposed it, one of Duane compatriots brandished a pistol triggering their arrests. The case became known as “Duane’s case”—even then he was a target. The prosecutor not only argued that these men had started a riot, but he declared “that aliens have no right whatever to petition, or to interfere in any respect with the government of this country … if aliens do not like the laws of this country, God knows there are ways and wishes enough for them to go back again.” He thought “the greatest evils this country has ever endured have arisen from the ready admission of foreigners to a participation in the government” and blamed the advent of political parties on foreigners. He placed hope that the 14-year residency requirement of the Naturalization Act would be a sufficient period to “drench them [aliens] of those dangerous habits and propensities they too often bring with them.”Footnote 45 The prosecutor defined the case as being about foreign influence and the danger resident aliens posed to the nation. The case was not simply about a so-called riot but who rioted. Apparently, jurors did not agree with him, and after half an hour of deliberations, they acquitted Duane and his colleagues. They did not find these aliens’ influence nefarious or the incident a riot, nor were aliens excluded from enjoying rights under the Constitution.
Joseph Hopkinson, who prosecuted Duane’s case, penned a pamphlet defending the Alien and Sedition Acts in which he articulated many of the Federalists’ fears about foreign influence and echoed his arguments from court. In “What is Our Situation,” Hopkinson identified two enemies—the French and internal faction or Republicans—who were one and the same. The French took advantage of the fact that “our Government is divided from the people,” and Republicans, “who finding themselves supported, by the aggression and countenance of the French, aim at nothing short of universal uproar and plunder.” The real danger was that Republicans aided by the French “excite vile and groundless jealousies against your Government, that being no longer supported by you, it can no longer give you protection.”Footnote 46 Thus the men serving in government needed to be safeguarded against abuse from both citizens and aliens or else risk collapse of the Republic. Here was the crux of the issue for Federalists—if anyone could print or say anything without threat of punishment, then complaint could become rebellion. As Virginia Federalists wrote, “Although the calumnies of the factious and discontented may not poison the minds of the majority of the citizens, yet they will infect a very considerable number, and prompt them to deeds destructive of the public peace and dangerous to the general safety.” The US had experienced such calamities during the Whiskey Rebellion when the people of western Pennsylvania had been riled up by “certain presses” and “deluded into that unprovoked and wanton insurrection.”Footnote 47 The Massachusetts state senate in response to the Virginia Resolutions defended the Alien and Sedition Acts as not only necessary but constitutional. In fact, the US had been forced into passing the Alien Friends law by the French. They asked if the US “should have waited till the poignard had in fact been plunged” before defending themselves. As to the Sedition Act, they argued, “The genuine liberty of speech and the press, is the liberty to utter and publish the truth—but [that] constitutional right … is not to be confounded with the licentiousness in speaking and writing, that is only employed in propagating falsehood and slander.”Footnote 48 In their defenses of the laws, Federalists focused on immigrants, their willing American allies, and specious speech as the dangers against which they needed to protect Americans.
Republicans, on the other hand, argued it was not these factors but the threat Federalists posed to fundamental rights that should cause universal alarm. Using the state legislatures as a vehicle of protest, Madison and Jefferson concentrated their arguments in the Virginia Resolutions, Report of 1800 and Kentucky Resolutions, respectively, on this theme. Using the state compact theory as their starting point, they argued that states should cast judgment upon the federal government. Jefferson raised the possibility of nullification if elections could not remedy the problem. Madison was more ambiguous and urged states to “interpose” in cases of “deliberate, palpable and dangerous exercise” of powers by the general government.Footnote 49 Jefferson raised the possibility of violence if Federalists continued these policies “that these & successive acts of the same character, unless arrested at the threshold, necessarily drive these states into revolution & blood.” Furthermore, he warned against government coercion: “that man cannot be governed but by a rod of iron: that it would be a dangerous delusion.”Footnote 50 He implored people and states to act to protect their rights from threats from the general government—more vehemently but in similar fashion to his actions in the Cabell Affair.
In the Report of 1800, which was Virginia’s response to states like Massachusetts who criticized Virginia’s 1798 Resolutions, Madison argued for a broad understanding of rights whose price was the possibility of unrest and seditious speech. He found fault in Federalists’ justification of the Alien and Sedition Acts based on the pledge in the Constitution’s preamble to suppress insurrections. He argued that the power to suppress did not imply the power to prevent all insurrections “by punishing whatever may lead or tend to them” because then the government could justify almost any action including “a regulation of the press, and a punishment of libels” as well as deportation of aliens.Footnote 51 Madison concluded that suppressing all insurrections would mean unlimited power in the hands of the federal government to do everything necessary and proper to achieve this objective likely at the expense of individual rights. For Madison, this objective was not worth the potential costs to personal liberty.
Once President Adams decided to pursue new negotiations with France, Federalists lost their most compelling issue—the possible escalation of the Quasi-War. Although Federalists failed to shutter Republican newspapers including the Aurora and no aliens were deported under the Alien Act, they did succeed in redefining the parameters of debate. Editors and others exercised self-censorship. Congressman John Fowler of Kentucky complained to his constituents that “the Presses have been restrained in a considerable degree, and the conduct of the public servants, has been screened from that public investigation.” Fowler warned that free elections had been jeopardized—just as Madison forewarned in his Report of 1800. The law had been unevenly applied to protect “venal [Federalist] presses … in abusing and vilifying in the most gross and illiberal manner the Vice President and minorities in both houses of Congress.”Footnote 52 In fact, the vice president himself encouraged fellow Republicans to exercise self-censorship. He advised, “firmness on our part, but a passive firmness is the true course. any thing rash or threatening might check the favorable dispositions of these middle states & rally them again round the measures which are ruining us.”Footnote 53
In light of Fries Rebellion in Northampton County Pennsylvania, Jefferson’s warnings seemed particularly relevant. He believed that Republicans’ fortunes were improving, but he knew such change could be fleeting, especially given Federalists’ characterization of the rebellion as a manifestation of everything of which they warned. These Pennsylvanians, many of whom were descendants of German immigrants, protested the new federal taxes, which funded the military, and Federalist policies more broadly. Federalist newspapers and politicians quickly identified the rebellion’s leader John Fries as German and thus framed the rebellion as an example of foreign interference even though Fries and most of the protesters were native-born Americans who had fought in the Revolution.Footnote 54 Adams held onto this construction well into his retirement when he explained his reasoning for pardoning Fries and others who had been convicted of treason. He asked, “What Example would have been exhibited to the Nation by the Execution of three or four obscure miserable Germans, as ignorant of our Language, as they were of our Laws and the nature and definition of Treason?” The protesters were not free agents but were “Pitifull [sic] Puppets, danced upon the Wires of Jugglers.”Footnote 55 Federalists characterized Fries Rebellion as an example of foreign influence and thus not legitimate protest that justified their use of the army to suppress it. Republicans thought Federalists overreacted to a “disturbance” that was essentially over before it began. The Aurora chastised Adams for not acting as Washington did during the Whiskey Rebellion by consulting with the governor and sending commissioners to defuse the situation before sending troops. Duane lamented that only despotic governments used force as their first resort. Republics did not act by the “logic of bayonets.”Footnote 56 Here indeed was another instance where Federalists’ overaction resulted in the abuse of power and violation the people’s rights.
By the time Jefferson took the presidential oath of office on March 4, 1801, both the Alien Friends and Sedition Acts had expired and an attempt to extend the latter had failed. The new Republican majority revised the Naturalization Act by reducing the residency requirement from fourteen to five years, granting state courts the authority to issue naturalization certificates, and ending the registration requirement.Footnote 57 The expiration of the Alien Friends and Sedition laws did not end the debate about acceptable limits on speech or how to prevent undue foreign influence on the people. Republicans, who had adopted a broader definition of the First Amendment and secured seemingly permanent majorities in Congress and control of the Executive, would have their understanding of the First Amendment tested again and again.
