by Carol Berkin
While Duane waited for his trial to resume, he continued his assault on the government. In 1800, he criticized a proposed Senate bill to settle disputed presidential and vice presidential elections, claiming—this time, with considerable truth—that it was designed to give the Federalists an advantage in the upcoming election. Although the bill did not pass, the Senate decided to summon Duane to answer questions about how he acquired information on a discussion behind the closed doors of the upper chamber. When his own lawyers refused to accompany him for the interrogation, Duane decided not to appear before the senators. Vice President Thomas Jefferson, the presiding officer of the Senate, had no choice but to sign a contempt warrant against Duane. Pickering, however, delayed indicting Duane for libeling the Senate until after Congress adjourned. The opportunity was thus lost to bring him to trial, for, as president, Jefferson dismissed the suit. Duane thus escaped all prosecution. His only apparent punishment was to suffer attacks in the Federalist press like the doggerel verse that appeared in the New York Evening Post on November 16, 1801: “Lie on Duane, lie on for pay / and Cheetham, lie thou too / ore against truth you cannot say / Than truth can say ’gainst you.”41
The rash of indictments in July 1798, the month the acts were passed by Congress and signed into law by Adams, prompted popular outrage in the Republican stronghold of Virginia and in its sister state of Kentucky where whiskey rebels had once reigned. In these two states, the support for President Adams that had followed the revelations of the XYZ affairs had evaporated. By September, Virginia newspapers like the Norfolk Herald applauded the signs of resistance beginning to appear in many local counties. “The real friends to the liberties and the happiness of America,” the paper declared, would rejoice upon reading the resolutions passed by the “respectable county of Goochland.” There, some four hundred people voted to request their delegates in the state legislature demand that the Alien and Sedition Acts be repealed. On September 19, the Virginia Gazette and General Advertiser carried the resolutions passed in Powhatan County that labeled the Alien and Sedition Acts “tyrannical and unconstitutional” and affirmed the right of the people to demand their representatives take action to “suspend, alter, or abrogate those laws”—and to punish “their unfaithful and corrupt servants.” By October, the freeholders of Prince William County had petitioned Adams for redress of grievances resulting from the Alien and Sedition Acts. Adams never saw this petition because Pickering intercepted it and returned it to its authors.42
Public meetings soon followed in Virginia’s Prince Edward, Orange, Augusta, Amelia, Louisa, and Caroline Counties. Almost all were organized and orchestrated by local elites, who not only set the agenda for discussion but also often wrote the petitions and resolutions the meetings produced. Attendance numbers were frequently exaggerated; in Dinwiddie, for example, a Petersburg lawyer drafted the resolutions the “meeting” of only a few people produced. Yet what the protests lacked in spontaneity, they made up for in fervor. Public feeling ran so high in parts of the Old Dominion that not even the state’s most famous resident, George Washington, could escape the public’s wrath. In Virginia, “A Speedy Death to General Washington” became a popular toast.43
In Kentucky, local leaders also carefully nurtured popular outrage, cleverly scheduling rallies to coincide with court days and militia muster days, thus ensuring large crowds. Wealthy landowner and lawyer George Nicholas established the tone for these well-attended Kentucky protest meetings when, on August 1, he published his response to the Alien and Sedition Acts in the Kentucky Gazette. “I do verily believe,” he wrote, “that the majority of the legislature of the US, who voted for the [Acts] have violated that clause of the Constitution of the United States, which declares that ‘Congress shall make no law respecting an establishment of religion, or prohibit the free exercise thereof, or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble and to petition the government for a redress of grievances.’”44
It was, however, Nicholas’s protégé, thirty-eight-year-old John Breckinridge, who organized the major Kentucky protests, in Bourbon, Fayette, Franklin, Mason, and Woodford Counties. The petitions produced at these demonstrations, many drafted by Breckinridge himself, were filled with radical sentiments, mixing declarations of states’ rights with assertions of the rights of individuals to disobey any law they considered unconstitutional. Clark County’s resolutions were representative. They went beyond an opposition to the Alien and Sedition Acts to address foreign relations and the Adams administration’s war-preparedness programs. Although they condemned the Sedition Act as “the most abominable that was ever attempted to be imposed upon a nation of free men,” they also denounced any war with France as ruinous to the nation, rejected the idea of an alliance with Great Britain, and voiced serious concern that the powers given to the president to raise armies and borrow money were dangerous to the people’s liberty. The Alien and Sedition Acts had brought to the surface a general popular discontent with Adams and the Federalist agenda.45
On August 13, Kentucky’s protest moved to Lexington. An ailing George Nicholas lectured on the dangers of the Sedition and the Alien Acts for four hours to a crowd numbering between 4,000 and 5,000. In his stirring peroration Nicholas declared that “as long as my country continues free, I care not who watches me; I wish all my thoughts, words, and deeds, so far as they concern the public, to be known. He who has not political objects, but the happiness and liberty of his country need not fear having them exposed to the eyes of the world.” After Nicholas finished, twenty-one-year-old Henry Clay, a recent transplant to Kentucky from Virginia, stood in a wagon and addressed the throng for another hour. When a Federalist in the crowd attempted to defend the legitimacy of the Alien and Sedition Acts, he was shouted down. The arguments made by Nicholas and Clay echoed those made in Congress by Edward Livingston: the federal government had gone beyond its enumerated powers, and, as a result, the states and individual citizens had a right to resist these laws. Before disbanding, the crowd passed ten resolutions that declared the acts “unconstitutional, impolitic, unjust and a disgrace to the American name.” They also ominously urged their fellow Kentuckians to arm themselves—not in defiance but in defense of the Republic.46
Kentucky’s spirited defense of the Constitution and its citizens’ determination to resist any abuse of its guarantees was a measure of the steady growth of popular nationalism during the era. In 1793 and 1794, Kentucky residents who opposed the excise tax preferred to simply ignore the Constitution and any authority its federal government had to intervene in their lives. Now, in 1798, they spoke of the Constitution as the bulwark of their liberties and declared their willingness to defend it against abuse by the men in office. Nicholas captured this shift in attitude when he wrote that “no constitution affords any real security to liberty, unless it is considered sacred and preserved inviolate.”47
4
“I do not care if they fire thro’ his arse!”
—Luther Baldwin, July 1798
DESPITE THE EMERGENCE of protest against the Alien and Sedition Acts, Timothy Pickering had no intention of abandoning the power the acts gave him to protect the federal government. Far more than Adams or Hamilton, Pickering was an ideologue, and he believed it his mission to save the Federalist hegemony, the Republic, and the Constitution itself. He had no qualms about applying the Sedition Act whenever and wherever possible, no matter the price the administration paid in public indignation.
August and September seemed to bring a hiatus. Both months passed without arrests or indictments. But in October, Thomas Adams and Abijah Adams, brothers living in Cambridge, Massachusetts, found themselves charged with sedition. Thomas was the editor of the Boston Independent Chronicle, a newspaper that had earned Abigail Adams’s deepest contempt for its relentless criticism of her husband. Massachusetts Federalists, who described Thomas Adams as “a flaming minister of anarchy” had burned copies of the Chronicle at their Fourth of
July picnic that year. A campaign to ostracize Adams led to his expulsion from the New Relief Fire Society of Cambridge on the grounds that he disgraced the American character. Despite all the efforts of his political enemies, Adams showed no signs that he would temper his criticism of the president and his policies.
On October 23, 1798, Thomas Adams was arraigned before the federal circuit court in Boston, where he pleaded not guilty of “sundry libelous and seditious publications.” Like all the other men brought before the courts for libel and sedition, he was released on bail. He was not to go to trial until June 1799. New charges awaited, however. In February 1799, both Thomas and his brother Abijah, the bookkeeper for the newspaper, were indicted under Massachusetts common law. Abijah was tried on March 1, 1799, but by then Thomas was too ill to appear in court. Abijah was found guilty, sentenced to thirty days in county jail, and required to post a $500 surety bond against any further offenses. Thomas, too sick to continue publishing the Chronicle, sold it. On May 13, he died. Republican newspapers hailed Thomas Adams as a hero, even as Federalists declared that justice had been served with his demise. Harrison Gray Otis offered a dark epitaph: Thomas Adams was “finally arrested… by that grim messenger whose mandate strikes terror in the heart of the false and malicious libeler.”48
Not everyone indicted in the immediate aftermath of the passage of the Sedition Act was a newspaper editor. As the pilot of a garbage scow named Luther Baldwin learned in the summer and fall of 1798, even a spontaneous comment uttered by a man with no influence in his community could result in an indictment under the Sedition Act. Baldwin was drinking without much restraint on a warm July day when President John Adams passed through his hometown of Newark, New Jersey, on the way to his family home in Quincy, Massachusetts. Newark heralded the president’s arrival with a full parade and a cannon salute. But Baldwin did not share this local enthusiasm. When one of his drinking companions commented, “There goes the president and they are firing at his a—,” Baldwin expressed his sour opinion of both the cannon salute and the president. “I do not care,” he boasted, “if they fire thro’ his arse!” The local Republican newspaper, the Centinel of Freedom, printed this exchange between the two less-than-sober commentators, and Baldwin wound up indicted that September. The charge was speaking “seditious words tending to defame the President and the Government of the United States.” Two of the men drinking with him were also indicted. On October 3, 1798, all three pleaded guilty, although Baldwin and one of his friends soon changed their pleas. The three men were fined, and the two who had pleaded not guilty were committed to jail until their fines and court fees were paid.49
The most dramatic case in October began only three days after Luther Baldwin and his hapless drinking buddies found themselves convicted of seditious comments. On October 5, a highly controversial member of the House of Representatives, Matthew Lyon, was arrested in Fairhaven, Vermont. Lyon, a former printer, had emigrated from Ireland to Connecticut as an indentured servant. He made his way to Vermont before the Revolution and was among Ethan Allen’s Green Mountain Boys who captured Fort Ticonderoga. His military career ended badly; he was discharged when the troops under his command mutinied. After the Revolution, Lyon became a successful mill owner and paper manufacturer, and, by the 1790s, he had entered politics. In 1797, after three failed campaigns, he was finally elected to the House of Representatives.
It was immediately clear to many in Congress that Lyon was a combative personality. He saw himself as the voice of the common man, and he did not mince words in his criticism of the Federalists. He openly accused Alexander Hamilton of “screwing the hard-earnings out of the poor people” so that the federal government could “vie with European Courts in frivolous gaudy appearances.” His hostility to his opponents’ alleged elitism was not tempered by the tendency of Federalist congressmen to make fun of his Irish accent. In January 1798, Lyon shocked his fellow representatives by spitting in the face of Connecticut’s Roger Griswold on the floor of the House. Griswold was certainly guilty of provocation, for in an angry exchange he accused Lyon of being a scoundrel. The patrician Griswold repeated an old but false charge that Lyon had been cashiered from the military for cowardice and given a wooden sword to symbolize his shame. After the incident in the House, it was not long before some wit dubbed the novice congressman “The Spitting Lyon.” Although Lyon apologized to his fellow representatives for his behavior, he did not directly apologize to Griswold. This may explain why, on February 15, the aggrieved Griswold attacked Lyon with his wooden cane, beating him on his head and shoulders in full view of the House members. Lyon managed to defend himself with a pair of tongs taken from a fireplace. Congressmen finally pulled Griswold away by his legs. The House debated the appropriate action to be taken in the Lyon-Griswold episodes for almost a month; in the end it voted against the censure of either man. Nevertheless, the confrontations between Lyon and Griswold seemed to many to be a physical embodiment of the intense party hostility in American politics.50
Although the Lyon-Griswold altercation was sensational, it was not the basis for Lyon’s arrest. On June 20, Lyon had published an open letter in Spooner’s Vermont Journal, written in response to a scathing attack made on him. In the letter, Lyon accused John Adams of engaging in a “continual grasp for power” and described the president as a man with an “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” He went on to denounce what he considered a trumped-up threat of French invasion and unnecessary and costly war preparations. This letter was the basis for the first count of the indictment against him. Lyon also published, and read aloud at rallies, a letter written by Joel Barlow to Barlow’s brother-in-law in which the poet harshly condemned the war preparations. The printing and reading of the Barlow letter and the criticism of the president were the bases of the second and third counts of the indictment.
Lyon’s October trial in the US Circuit District Court of Vermont was closely followed by supporters and detractors alike. The Federalist congressman John Allen was one of the many prominent men who crowded the courtroom. In his opening remarks, Justice William Patterson told the grand jury that seditious libel was a crime against the people who elected government officials. The jury agreed that domestic licentiousness was a greater threat than invasion by a foreign country. Later, Republican supporters of Lyon would argue that indictment for his letter, published before the Sedition Act was passed, was a blatant example of ex post facto prosecution. Lyon, who defended himself at his trial, argued that the Sedition Act was unconstitutional and that there was no evidence he intended to undermine the federal government; he claimed his criticism was nothing more than “a legitimate opposition.” The judge instructed the jury to ignore the issue of the act’s constitutionality; the only question before it was whether Lyon published the letter and whether his intent was sedition. Patterson went on to remind the jurors that “unlawful combinations, conspiracies, riots and insurrections strike at the being of our political establishment” and that “written or printed detraction, calumny, and lies are odious and destructive vices in private, and still more so in public life.” These crimes, he added, threaten a government that is the “creation and work of the people, emanating from their authority and declarative of their will.” After that charge, the jury took only an hour to return a guilty verdict.51
Matthew Lyon was fined $1,000 and sentenced to four months in jail. The Aurora declared that the Vermont congressman “had the honour of being the first victim of a law framed directly in the teeth of the Constitution of this federal republic.” Prison did little to soften Lyon’s views. While locked up, he wrote an account of his trial and also conducted his reelection campaign. To the consternation of the Vermont Federalists, he won a second term by an overwhelming majority. And upon his release from prison, he was treated to a parade. Supporters called him “a martyr to the cause of liberty and the Rights of Man.” Clearly, the Sedition Act was failing to control opposition to the Adams adminis
tration.52
The justice system was not finished with Lyon, however. At the October 1799 term, Lyon was once again arrested, this time for criticizing his fine, the jury selection process, and the marshal’s alleged abuse of him while he was in prison. But Lyon could not be arrested, for he was nowhere to be found in Vermont. He was safely in Congress in Philadelphia. When Congress adjourned in March 1801, Lyon wisely did not return to Vermont. Instead, he moved to Kentucky and won election to Congress from his new home in 1802. Despite all the efforts of the Federalist officeholders and judges and despite several seditious libel cases against others in Vermont, nothing could silence the critics of the administration and the Alien and Sedition Acts. Even worse, from the Federalist point of view, nothing and no one seemed able to prevent the growth of the Republican Party in its own New England backyard.53
5
“The nullification of all unauthorized acts… is the rightful remedy.”
Kentucky Resolutions, 1799
AS 1798 DREW to an end, the administration had little to show for itself in the battle against Republican sedition and libel. Three working men from Newark, New Jersey, had been convicted for drunken comments; William Duane was out on bail and busy publishing new attacks on Adams and his policies; and three other newspaper editors, along with a bookkeeper, still awaited trial. The administration’s victory in the Matthew Lyon case appeared to be pyrrhic, because Lyon had used his time in jail to paint himself as a hero and the judge and jury as villains.
