by Lynne Cheney
A sedition bill that would throttle the Republican press was clearly on the way, but in the case of Benjamin Franklin Bache, the twenty-eight-year-old grandson of Benjamin Franklin and publisher of the Aurora, the administration could not bring itself to wait. On June 26, 1798, even as a sedition bill was being introduced into the Senate, Bache was arrested under common law for “libeling the president and the executive government in a manner tending to excite sedition and opposition to the laws.” It was also on that day that Vice President Jefferson requested leave from the Senate for the rest of the term and left the city. He probably did not know but likely suspected the efforts the administration was making to unearth information about him and worried that he, too, would be arrested.15
On his way to Monticello, Jefferson stopped to see Madison at Montpelier, and as candles were lit, the two men could hear the sound of evening thunder.16 The distant rumblings provided a fittingly ominous background for their discussion of how to confront the dangers to liberty that the nation faced.
Both Madison and Jefferson had been counseling a watchful waiting, Madison on the grounds that the Federalists’ oppressive acts would awaken the citizenry. Jefferson had believed that with patience “we shall see the reign of witches pass over.” But now something had to be done. There were many reasons to have formed a union of states under the Constitution, but none higher than the liberty to think and speak freely, which was now in jeopardy. As the two men explored remedies, they realized that there was no recourse to be had in Congress, where the legislation they so abhorred was in favor. Nor did they see the courts as an option. They were also controlled by the Federalists, as had been demonstrated the previous year, when Richmond jurors had charged Virginia congressman Samuel J. Cabell for daring to criticize the Adams administration in circular letters to his constituents.17 Madison and Jefferson finally concurred in a plan to persuade state legislatures to oppose the Alien and Sedition Acts, and they agreed that they would act secretly, not writing under their own names, but working through others.
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BY MID-JULY a sedition bill was passed and signed into law by President Adams, making it illegal to write, print, utter, or publish “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 … the hatred of the good people of the United States.”18 Anyone reading the law would have been hard put to miss the fact that one prominent federal officer was not on the list of the protected: John Adams’s chief political rival, the vice president of the United States. It was a clear sign of the political intent of the bill, though Federalists, still operating out of an older way of thinking, no doubt saw the omission of the vice president as insuring against Jefferson’s traitorously attacking the government.
Violators of the Sedition Act were soon being thrown in jail. One was Vermont congressman Matthew Lyon, who had the temerity to accuse the Adams administration of overlooking the people’s welfare “in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” Editors and journalists with Republican leanings were indicted, including William Duane, who had succeeded Bache at the Aurora; Thomas Cooper of the Gazette in Northumberland, Pennsylvania; and Thomas Adams of Boston’s Independent Chronicle. David Brown, an impoverished, semiliterate man who wandered the Massachusetts countryside preaching Republican doctrine, was tried and convicted. The Federalist Fisher Ames viewed him as one of the “runners” sent “to blow the trumpet of sedition” and was particularly perturbed that he had inspired Dedham citizens to set up a liberty pole, an “insult on the law,” Ames deemed it. New Jersey’s Luther Baldwin was also caught up in the frenzy, fined, and jailed after he informed a barkeep that he did not care if cannon fire hit John Adams in the arse.19
After their meeting at Montpelier, Madison and Jefferson did not communicate by mail, largely for fear that Federalists, who controlled the post offices, would use their words against them, but they worked at their agreed-upon plan. Jefferson ghostwrote resolutions that would be introduced in the Kentucky legislature by John C. Breckinridge. “Whensoever the general government assumes undelegated powers,” Jefferson wrote, “its acts are unauthoritative, void, and of no force.” He went on to declare that “a nullification of the act is the rightful remedy” and that “every state has a natural right … to nullify of their own authority all assumptions of power by others within their limits.” When the resolutions reached Kentucky, someone’s editorial pen cut the passage about nullification, but enough was left to convey the idea that each state had a right to decide on such matters as the Alien and Sedition Acts. The Kentucky legislature, using Jefferson’s words, urged others to join in the effort to oppose such laws, lest the acts “drive these states into revolution and blood.”20
Likely because of concern about the mail, Madison did not see Jefferson’s resolutions until after they were on their way to Kentucky, but he did read them before he completed his own. They arrived at Montpelier in November 1798 with a cover letter from the vice president urging that “we should distinctly affirm all the important principles they contain, so as to hold to that ground in future.” Madison set his own course, however, anonymously drafting resolutions for Virginia that began by affirming that state’s intention “to maintain and defend the Constitution of the United States” and declaring its “warm attachment to the Union of the states.” The resolutions protested the federal government’s unjustified enlargement of its powers, particularly in the Alien and Sedition Acts. They were “infractions of the Constitution” for their assertion that the federal government could punish speech and writing, “a power which more than any other ought to produce universal alarm,” Madison wrote, “because it is leveled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.” There was no talk of nullification in Madison’s resolutions. He instead spoke of the states having a duty to “interpose” when the federal government asserted powers not granted to it, a word general enough to cover the appeal made at the end of the resolutions for other states to join with the commonwealth in declaring the Alien and Sedition Acts unconstitutional.21
When Jefferson saw Madison’s draft of the Virginia Resolutions, he thought it insufficiently strong and managed to get inserted into it an invitation for other states to join in declaring the Alien and Sedition Acts “null, void, and of no force, or effect.” Someone, perhaps Madison, saw to it that these words were stricken, but the careful distinctions that Madison drew and Jefferson did not were quickly lost sight of. After Virginia, like Kentucky, had passed the resolutions, seven states responded, all of them negatively, their objections when they were given seeming to respond to Jefferson’s assertion that a state could nullify a federal law, rather than to Madison’s more subtle point about the right to “interpose.” But gaining approval of the resolutions was not the sole purpose for sending them around. They were also a way of enlightening public opinion by setting forth arguments that might not otherwise be heard. There were people all across the country who felt uneasy about the Alien and Sedition Acts but had not formulated their objections. Madison and Jefferson provided arguments, less efficiently than modern politicians might when they make the case for their viewpoints through mass media, but about as efficiently as the eighteenth century would allow. Every state in the Union received the resolves, and two years before the next presidential election, citizens inclined to the Republican way of thinking gained a great cause to rally around. The idea of Jefferson’s running against Adams in 1800 had probably been on both Jefferson’s and Madison’s minds since he had come so close to winning in 1796. The Federalist attempt to suppress free expression not
only threatened fundamental rights; it gave Jefferson a key part of his platform.22
In early December, Madison read in the Fredericksburg paper that Napoleon Bonaparte had suffered a stunning naval defeat in Aboukir Bay, near Alexandria, Egypt, an event that sharply decreased the likelihood of France going to war with the United States. He also heard from Jefferson that the French might be actively seeking reconciliation. In addition, Jefferson reported, the Republican cause—helped in no small part by the direct taxes that military preparations required—was gaining in states from Massachusetts to South Carolina. The defense buildup was nonetheless continuing, with plans being made for a new armed force of thirty thousand men and a volunteer force besides.23
Military expansion had now gone so far that John Adams himself was unhappy with it. Congress was gathering a force to counter a French invasion, which Adams had never thought likely. Even before news came of the destruction of the French fleet in Egypt, the president had protested to his secretary of war, James McHenry, that there was “no more prospect of seeing a French army here than there is in heaven.” Adams was also bitter about Hamilton, who he increasingly realized was manipulating the military buildup from New York. Adams had come into the presidency with little fondness for Hamilton, who had supported Thomas Pinckney in the 1796 presidential election, and when the question of who would be in charge of the new army had come up, Adams had been determined to deny Hamilton a major role. But Hamilton had elbowed his way in by helping George Washington see how, despite his age and declining energies, he could manage to be formally in command. He promised the sixty-six-year-old former president that he would support him as his number two, relieving him from burdens Washington felt he could not take on. Thus, when Adams nominated Washington to command the new army, the deed was done. Washington insisted on Hamilton as his second-in-command, and Adams was forced to swallow hard and take him.24
As Hamilton began to assemble the new army, Virginians became concerned that it was to be aimed not at France but at them—and they had reason to worry. Hamilton, labeling the Virginia and Kentucky Resolutions “a regular conspiracy to overturn the government,” urged the new Speaker of the House, Theodore Sedgwick, to strengthen the Alien and Sedition Acts and speed up troop recruitment. “When a clever force has been collected, let them be drawn towards Virginia,” he wrote, “then let measures be taken to act upon the laws and put Virginia to the test of resistance.”25 Hamilton was not the only Federalist to think that Republicans were conspirators and must be brought to heel, but he was the only one putting together a military force to do it.
Meanwhile, John Adams was hearing that Talleyrand was ready to negotiate seriously and yearning for it to be true. The adulation he had known in the early days of the XYZ Affair had turned to complaint. Both he and Congress were receiving petitions protesting taxes, objecting to the army, and condemning the Alien and Sedition Acts. In addition, Adams had come to suspect that Hamilton intended a military coup. He told a confidant that the New Yorker and his party “were endeavoring to get an army on foot to give Hamilton the command of it … and thus to proclaim a regal government and place Hamilton at the head of it.” Peace with France, Adams’s goal in the beginning, would remove all rationale for the new army and put an end to Hamilton’s military ambitions—which were at least a match for what his worst enemies imagined. He had begun to talk about seizing Florida and Louisiana from the Spanish and even liberating South America. In later years, Adams would recall his reaction to Hamilton’s grandiose plans: “This man is stark mad or I am.”26
Adams knew that by renewing negotiations with the French, he would infuriate high Federalists, but he would also distance himself from the advocates of armies, taxes, and oppressive laws, and unless he did that, there was no way he could prevail in the upcoming election. He sent a message to the Senate on February 18, 1799, nominating William Vans Murray, then at The Hague, to be minister to France. Jefferson, who read the president’s message aloud in the Senate chamber, reported that the Federalists had evidently not been consulted before the announcement, “as appeared by their dismay.” They were “graveled and divided,” he told Madison. The Federalists in the cabinet, as Timothy Pickering described it, “were all thunderstruck.” A Senate committee met with the president, but the only concession he would make was to appoint two additional envoys to join Murray. The Senate confirmed his nominees, but Hamilton’s influence was still strong, particularly in Adams’s cabinet, and it would be eight months before the envoys set sail.27
• • •
IN VIRGINIA, Republicans were worried about their prospects in upcoming legislative contests. John Taylor of Caroline, who had been Madison’s schoolmate at Donald Robertson’s, wrote to tell him that Washington had prevailed on Patrick Henry to run for the Virginia Assembly. Washington had persuaded Henry “to step forward and save his country,” a request that Taylor found more than passing strange since Henry would be saving it from opponents of a too powerful government—of which he, Henry, had once been one. Personal animosity toward Jefferson and Madison was driving Henry, Taylor thought, bringing him back into public office just as a presidential election neared. “I believe you are co-extensively involved in the danger with Mr. Jefferson,” Taylor wrote, “but if it be otherwise and you can discern a conspiracy against your friend, will you not step forward and save him?” Six members of the Virginia congressional delegation also wrote to say that Madison was desperately needed to oppose “the executive party” and advance Republican principles. Madison agreed to have his name be advanced. On a partly cloudy day in late April 1799, just as the corn-planting season was coming to an end, voters gathered at the courthouse in Orange and elected him to the House of Delegates.28
Patrick Henry died before the Virginia General Assembly convened, but making sure that Henry did not sabotage Jefferson’s presidential prospects was not the only task Madison had set for himself. One of the first orders of business was to get James Monroe elected Virginia’s governor, thus ensuring that pro-Jefferson forces had their hands firmly on the tiller of the commonwealth. Madison nominated him on December 5, 1799, speaking “highly of his private character as pure and of his public character as unimpeachable.”29 Monroe was elected handily.
News of Monroe’s ascension troubled one prominent Virginian. George Washington remained angry about a lengthy vindication that Monroe had written of his service in France. Since Washington had removed him from the post in Paris, Monroe’s defense, not surprisingly, was less than kind to the Washington administration. At Mount Vernon, the former president, suffering from a sore throat, listened on a wintry evening as Tobias Lear, his former aide, read reports from the Virginia Assembly. His irritation mounted, and then, “on hearing Mr. Madison’s observations respecting Mr. Monroe,” Lear reported, the former president was “much affected and spoke with some degree of asperity.” Lear tried to calm him, and Washington went to bed, but overnight the sore throat worsened. In the early hours of the next day, December 14, 1799, after hours of struggling for breath, Washington died.30
During the period of national mourning that followed, Jefferson made no public comment. Madison delivered a brief eulogy on the floor of the House of Delegates: “Death has robbed our country of its most distinguished ornament and the world of one of its greatest benefactors. George Washington, the hero of liberty, the father of his country, and the friend of man is no more. The General Assembly of his native state were ever the first to render him, living, the honors due to his virtues. They will not be the second to pay to his memory the tribute of their tears.” It was left to Harry Lee, Madison’s friend from Princeton, to deliver the most memorable eulogy. Washington, he said, was “first in war, first in peace, and first in the hearts of his countrymen.”31
After Madison had reflected many years on the nation’s first president, he would list among his attributes “remarkable prudence,” “love of justice,” “fortitude,” and “the advantage of a stature and figure, which however
insignificant when separated from greatness of character, do not fail when combined with it to aid the attraction.” Many things set Washington apart from the rest of mankind, but most worthy of note, in Madison’s estimation, was that he had in full measure a trait that Madison had long admired, “a modest dignity,” he termed it, which in Washington’s case “at once commanded the highest respect and inspired the purest attachment.”32
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ANOTHER TASK MADISON HAD SET for himself upon deciding to enter the House of Delegates was to answer critics of the Virginia Resolutions, and he worked on a response in the rooms he rented at Watson’s, a tavern and oyster house on Shockoe Hill. Watson’s was in a prime location, near the elegant capitol that Jefferson had designed, but Madison realized immediately that little else good could be said for it. Experienced now in the ways of marriage, he wrote to warn his wife. The rooms were “in a style much inferior to what I had hoped,” he advised. “You must consequently lower your expectations on this subject as much as possible before you join me.” About the time he wrote the letter, he came down with a severe case of dysentery, leading the modern reader to suspect that Watson’s was unhygienic as well as unstylish. Madison did not make that connection, however, nor would it have occurred to his peers. Well into the nineteenth century, dysentery was thought to be caused by “exhalations from the soil.”33
Madison was in bed for one week, then “in a state of debility” for two more, but he worked through the illness to produce what would become known as the Report of 1800, a document of nearly twenty thousand words defending the 1798 resolutions of the Virginia General Assembly. Other states had refused to go along with them on the grounds that it was the responsibility of the Supreme Court to declare a law unconstitutional, not of the states. Madison argued that since it was possible to conceive of the judiciary concurring with other branches in usurping power, final authority had to rest with the “parties to the constitutional compact,” or the states. He was careful to emphasize that this authority should seldom be called upon but that in “great and extraordinary cases” the states (which most broadly defined meant “the people composing those political societies in their highest sovereign capacity”) were justified “in interposing even so far as to arrest the progress of the evil.”34
