by Carol Berkin
Pennsylvania’s Albert Gallatin, one of the leading voices of the Republican Party, opened the debate with a challenge to the bill’s constitutionality. The bill, he argued, infringed the right of habeas corpus and denied immigrants due process. With what crimes were the targeted aliens to be charged? Gallatin asked. Why were they subject to the discretion of the president rather than to the judicial process? But Gallatin’s central argument focused on which government, state or federal, had authority over the admission of aliens. Every country, he conceded, had the right to permit or exclude aliens, but it was his understanding that the Tenth Amendment to the Constitution ensured that this power “does solely belong to each individual State.” Gallatin buttressed his argument for state regulation of aliens by citing the constitutional prohibition against interference with the “migration or importation of such persons as any of the States now existing shall think proper to admit” until 1808. Europeans might migrate and Africans might arrive against their will, but Gallatin held that the Constitution placed the regulation of both in the hands of the states until that year.8
Gallatin’s argument thus exposed the fundamental disagreement between the two parties over the nature of the Constitution, a disagreement that would continue into the nineteenth century with violent and bloody consequences. The Republicans insisted that the Constitution was a compact and that the states and the people had only granted specific and limited powers to the federal government created by that compact. Federalists disagreed. The Preamble to the Constitution, they argued, established the “sovereignty of the United States and its government” and committed the federal government to provide for the common defense and general welfare. This interpretation placed legislation designed to protect the country from dangerous aliens well within the scope of Congress. Even when conceding that the states controlled the admission of aliens to the country, Federalists insisted the federal government had a clear right to regulate their continued residence in the United States.9
For southern slaveholders in particular, the stakes were high in this battle over the relative authority of the federal government and the states. And Gallatin had unintentionally roused their anxiety when he read immigrants into the prohibition clause generally understood to apply only to the importation of slaves. If, as Federalists argued, Congress could legislate the deportation of dangerous immigrants, could it also deport a black labor force that many thought was equally dangerous? This possibility had led Georgia’s Abraham Baldwin to protest against any legislation based on the peoples’ “general welfare.” To grant the federal government this authority, Baldwin warned during a debate on sedition that raised the same issues, was to ensure that the state governments would “fall prostrate before it.”10
Federalists gave no evidence that they intended to remove enslaved blacks from the country. Their focus remained on the threat to American sovereignty posed by radical aliens who might have conspired with foreign governments or with domestic opponents of the administration to weaken American political institutions. Federalist congressmen rose on the floor of the House to remind their colleagues of the fate of Venice, of Switzerland, of Holland, and of all the independent states and countries that had fallen to France through such conspiracies. It was well known, Harrison Gray Otis declared, that France caused their downfall by organizing bands of aliens and native citizens to topple their governments.11
New York’s Edward Livingston, who shared leadership of the Republicans in the House with Gallatin, rejected the examples Otis presented. It was not foreigners, he said, but domestic “factions” that fatally weakened these European nations. In an attempt to stress the extremism of the legislation Federalists were proposing, Livingston stumbled into a suggestion he would soon regret: “We ought to banish not aliens,” he said, “but all those who did not approve of the Executive acts!” Pennsylvania Federalist John Kittera chose to take the suggestion seriously. It was his hope, he declared, that passage of this bill to curb aliens would be followed by passage of a strong sedition bill to curb the actions of citizens.12
On June 21, despite the continued protest by Republicans that the bill ran roughshod over states’ rights, the Federalist majority in the House passed the alien friends legislation by a vote of 46 to 40. On June 25, John Adams signed the alien friends act, officially entitled An Act Concerning Aliens, into law. By its terms, the president had the authority to order “all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States.” Punishment for remaining in the United States was far milder than the Senate had once wished: imprisonment for a term not exceeding three years plus the denial of the right of citizenship forever. The president was given discretion not only in removing a dangerous alien but also in allowing him to remain. This privilege could be rescinded if the president found it necessary. Through its third section, the act required the captains of ships arriving in a US port to provide the name, age, and place of birth of any alien on board their vessels. Significantly, jurisdiction over cases arising from the act fell to US circuit and district courts rather than to state courts. Section 5 of the act reflected the respect for the rights of property that Federalists and Republicans shared. If deported, an alien would be allowed to take with him “such part of his goods, chattels, and other property as he may find convenient” and any property left in the United States would remain under his control. Despite the threat Federalists believed aliens posed to the security of the country, they were not willing to permanently grant a president the powers provided by this law. An Act Concerning Aliens was to remain in force for only two years, a period coinciding with the end of John Adams’s term in office.13
As a counterpart to this Alien Friends Act, legislation dealing with aliens from enemy countries soon followed. There was little opposition to legislation that allowed aliens from countries at war with the United States to be “apprehended, restrained, secured and removed.” On July 3, the Senate passed this bill with minor amendments, and the House concurred with these changes.14
The president signed An Act Respecting Alien Enemies into law on July 6, 1798. In its final form, this act gave the president great latitude in deciding “the manner and degree of the restraint to which [alien enemies] shall be subject.” Those alien enemies who might become hostile but had not yet engaged in any hostile action would be entitled to retain and remove their property. This act, unlike the one dealing with alien friends, gave state courts the same authority as federal courts to hear complaints against alien enemies.15
Federalists hoped the passage of this law would protect against the rise of new plots that challenged the sovereignty of the United States. They wanted no new Genets enlisting Americans to invade Louisiana or Spanish Florida and no new Frenchmen like Andre Michaux pretending to be on scientific explorations in the West while working secretly for the French. But surely war hawks like Otis and Pickering also hoped that the act would prompt a formal declaration of war against France.
Despite any sense of satisfaction passage of these two alien acts gave the Federalists, the powers they granted to the president remained dormant under John Adams. As president, Adams deported no one. At most, these laws applied psychological pressure on immigrants who had not begun the naturalization process. The Alien Enemies Act no doubt played a role in the decision of many members of the French Caribbean community who had taken refuge in the United States to leave America voluntarily. The Alien Friends Act expired in 1801 without any actual application; the Alien Enemies Act, whose impact was first felt in the twentieth century, remains in force today.16
2
“Deliver us from… the public floods of falsehood and hatred.”
—John Allen, July 1798
THE FEDERALISTS SAW the naturalization law and the two alien acts as part of the broader war preparedness efforts to protect
the nation from external and internal threats. During the debates on these acts, John Kittera’s concern about the dangers of verbal and written attacks on public figures hummed just below the surface, occasionally making its way into suggested amendments. Finally, on Saturday, June 23, James Lloyd, a Federalist Senator from Maryland, announced his intention to bring a bill to “define more particularly the crime of treason, and to define and punish the crime of sedition.” The target of this bill was immediately obvious to all: the Republican press.17
Much of the Federalists’ enthusiasm for curbing the opposition press came, of course, from a desire to end the relentless ad hominem attacks and the often wild accusations that had been aimed at them throughout the decade by newspapers like the Aurora and the Time-Piece. John Adams, who had felt the sting of newspaper criticism even as vice president, might be excused for wishing that Republican papers could be silenced. Over the course of his years in federal office, he endured descriptions of himself as a “mock Monarch,” a “blind, bald, toothless, querulous” old man, “a repulsive pedant,” and a “gross hypocrite.” Often enough, the attacks contained violent imagery. A contributor to the Richmond Examiner had suggested that President Adams should be hurled “headlong, with as little ceremony as we would run an invading enemy through with a bayonet.”18
The president’s wife, Abigail, hated the Republican press even more than her husband did. In June 1797, after reading a particularly hostile piece in the Boston Independent Chronicle, she vented her anger to her sister. The editor of the Chronicle, she declared, “has more of the true spirit of Satan, for he not only collects the Billingsgate of all the Jacobin papers but he add[s] to it the Lies, falsehoods, calumny and bitterness of his own.”19
Federalists conceded that their supporters were sometimes equally unrestrained. The prime example was English-born William Cobbett, a seemingly affable, portly autodidact who nevertheless was responsible for an unending string of personal insults and attacks in his popular Porcupine’s Gazette. Cobbett’s criticism of the British government had forced him to seek refuge from English authorities in France, although he had no sympathy for the French Revolution. By 1792, he had made his way to America. He declared an immediate distaste for his new country, finding its climate detestable and its people “a cheating, sly roguish gang.” Yet, for the next eight years, he used his newspaper to skewer radical refugee intellectuals like Joseph Priestley, native-born Republicans, and the immigrants who flocked to the Republican banner. In one outburst he described these primarily Irish immigrants as “frog-eating, man-eating, blood-drinking cannibals.”20
Cobbett’s writing was so engaging and his venom so entertaining that many Philadelphia residents who disagreed with him nevertheless eagerly read each edition of Porcupine’s Gazette. Yet Cobbett was an iconoclast at heart and did not confine his attacks to Republicans; he insulted anyone he considered pompous or puritanical. Some of his targets fought back. Thomas McKean, who rose to be chief justice of Pennsylvania, sued Cobbett for criminal libel in the summer of 1796 and had the satisfaction of serving as both judge and witness at his trial. Philadelphia’s leading physician, Dr. Benjamin Rush, also sued Cobbett for his criticisms of the use of bloodletting to battle yellow fever and won a judgment of $5,000 in damages. And Noah Webster tried to have Cobbett arrested for sedition. By 1800, Cobbett had made so many prominent enemies in America that he thought it best to return to England.21
To Federalists, the flood of what Connecticut’s John Allen called Republicans’ “falsehood and hatred of everything sacred, human and divine” was far more dangerous than the ethnic insults of an irrepressible cynic whom Federalists generally disavowed. It was patently obvious to men like Allen that Republicans were waging a war in the press against the domestic and foreign policies of the administration, accusing Federalists of plots to establish an American monarchy, bringing charges of bribery and embezzlement against members of the cabinet, and insisting that Adams and Pickering were guilty of a concerted effort to provoke a war with France. Without the concept of a loyal opposition to frame these disagreements over domestic and foreign policies, Federalists could perhaps be excused for seeing Republicans as agents of social anarchy and political upheaval.22
Recent history served as the context for their alarm. There had, after all, been powerful opposition to the ratification of the Constitution in the 1780s. When that battle was lost, opponents of the new government hoped to strip its powers of taxation and regulation of commerce by calling a second constitutional convention. And during Washington’s first administration, extragovernmental organizations like the Democratic Societies had been staunch supporters of Genet, and, in the Federalist view, they encouraged western insurgents to reject the whiskey tax and deny the authority of the president and the Congress. As Federalists saw it, concerted efforts to weaken, or even destroy, the Constitution and the government it created had been a constant in American political life.
Like George Washington, most Federalists believed the press had become a dangerous political weapon, wielded by “internal disturbers” whose goal was to “destroy all confidence in those who are entrusted with the Administration.” As war with France loomed, Virginia Federalist Charles Lee voiced his party’s conviction that the peril America faced was domestic as much as—or more than—it was foreign. Our frame of government, Lee wrote, depends upon “the affections and respect of the people; take that away and the government is at an end.” In short, words mattered. And because of this, Federalists were convinced that many of the words appearing in the partisan press should be considered seditious.23
The Federalist move to rescue the Republic began in earnest on Tuesday, June 26, when James Lloyd made good on his promise and proposed a sedition bill. The vote to bring in the bill passed by a comfortable 14 to 8 vote along party lines. The next day, a committee made up exclusively of Federalists was appointed to report the bill. By July 4, the third reading had taken place. No disagreement seemed to arise over the first section of the bill, which labeled as high misdemeanors the unlawful combination or conspiracy to oppose any measure of the federal government, the impeding of the operation of any federal law, the intimidating or preventing an officer of the government from executing his duties, or the advising of insurrection, riot, or unlawful assembly. Nor did any Republican senator appear to protest section 3 of the bill, which allowed a person accused of writing or publishing libel to use truth as a defense. But Republicans did protest section 2, which would subject to prosecution the writing, printing, uttering, or publishing of anything “false, scandalous and malicious” against the government, either house of Congress, or the president. Anyone found guilty of bringing the government or its leaders into contempt or disrepute, exciting the hatred of the people against those leaders, stirring up sedition within the United States, resisting a federal law or a constitutional act of the president, or abetting hostile designs of a foreign nation could be tried and, if convicted, fined up to $2,000 and imprisoned for up to two years. The Republican attempt to expunge this entire section—and thus protect the press—failed by a vote of 18 to 6. A second 18 to 6 vote led to the passage of the bill. Thus, on the date Americans would come to celebrate as Independence Day, the upper house of Congress approved An Act in Addition to the Act, Entitled An Act for the Punishment of Certain Crimes Against the United States.24
On July 5, the House of Representatives read the Senate bill for the first time. Harrison Gray Otis of Massachusetts moved that it should be read a second time, while the Republican spokesman, Edward Livingston, moved to reject the bill immediately. In the long and heated discussion that ensued, Federalists and Republicans staked out their positions on the need for and the constitutionality of a sedition bill. Federalists argued that the partisan press as well as certain Republican members of Congress were creating a crisis of confidence in the government by spreading lies about the administration’s policies and slandering the character of the president and other key members of the federal g
overnment. They defended the constitutionality of the bill on two grounds, arguing, first, that the federal government—and, for that matter, any government—had the right to defend itself against sedition and libel; and, second, that the Constitution allowed legislation that was necessary and proper to assure the government’s ability to serve the people. Republicans built their opposition around three central points. First, no such crisis of confidence existed. Second, the sedition bill went beyond the legislative powers enumerated in the Constitution. And, third, it was in defiance of the First Amendment right to a free press.25
John Allen opened the debate with a vigorous defense of the bill. No one, he said, could deny that it was needed, for there was a “warrantable and dangerous combination to overturn and ruin the government” through the publication of “shameless falsehoods against the Representatives of the people.” Allen had brought with him examples of falsehood found in the Aurora and the New York Time-Piece, and he read these to the chamber. Allen then warned that the “dangerous combination” had spread to the House itself. He accused Edward Livingston, who had hoped to squelch the bill, of giving speeches declaring that insurrection was a duty in the face of an unconstitutional law. Allen quoted Livingston’s statement that “whenever our laws manifestly infringe the Constitution under which they are made, the people ought not to hesitate which they should obey.” Allen also cited a Virginia representative who had sent a letter to his constituents accusing the federal government of a tendency toward abuses similar to those of England. Here was proof, Allen asserted, that the press and the Republican politicians meant to endanger the Republic and transform the people into a mob. To encourage resistance to the law was to “produce divisions, tumults, violence, insurrection and blood,” all of which are the end result of the instigators’ “recurrence to first revolutionary principles.” From such principles, Allen hoped that “God [may] preserve us.”26
