On this date in 1798, the Sedition Act went into effect. The law sparked fierce resistance and led to formal resolutions supporting nullification and interposition, penned by Thomas Jefferson and James Madison, respectively.

The Sedition Act was the last of four laws signed by President John Adams in 1798 collectively known as the Alien and Sedition Acts.

The Sedition Act was arguably the most draconian of the four laws. Enacted on July 14, it effectively outlawed criticism of government officials. Specifically, it declared any “treasonable activity” a high misdemeanor punishable by fine and imprisonment. Under the law, “treasonable activity” included “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.”

The law was problematic both constitutionally and politically.

In the first place, criminalizing criticism of federal government officials clearly violated the First Amendment. As James Madison put it in the Virginia Resolutions of 1798, the Sedition Act gave the federal government power “expressly and positively forbidden by one of the amendments” to the Constitution.

“A power, which more than any other, ought to produce universal alarm, 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.”

The passage of the Sedition Act was also a shrewd political move. The Federalist Party dominated the federal government. It controlled both houses of Congress, and President Adams himself was a member of the party. The law would make it very difficult for Democrat-Republican challengers to campaign against Federalist Party current officeholders. Any criticism could be construed as “false” or “scandalous.” It also put a damper on the partisan press of the day.

The fact that the vice president was excluded from the list of government positions that couldn’t be criticized reveals just how political the Sedition Act was. Thomas Jefferson was the vice president and he was a member of the minority Democrat-Republican Party.

Passage of the Sedition Act wasn’t just a political stunt. It was vigorously enforced by the administration – mostly against editors of Democrat-Republican newspapers. There were at least 17 verifiable indictments, 14 under the Sedition Act itself and three under common law. The chilling effect of the Sedition Act also effectively shut down many dissenting party newspapers.

Benjamin Franklin’s grandson was among those prosecuted. Federalists sent “committees of surveillance” to spy on Benjamin Franklin Bache, editor of the Philadelphia Democrat-Republican Aurora.  Bache called the Alien and Sedition Acts an “unconstitutional exercise of power.” He was ultimately charged with libeling President John Adams and sedition for his French sympathies. Bache died of yellow fever before he was brought to trial.

A sitting member of Congress even found himself caught up in the web spun by the Sedition Act. Matthew Lyon represented Vermont in Congress and also served as the editor of the Republican paper The Scourge of Aristocracy. During his re-election campaign, Lyon wrote a reply to his Federalist opponents, accusing President Adams of engaging in a “continual grasp for power” and of having “an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” He also blasted the president for using religion to drum up war against France, writing he could not support the executive, “when I shall see the sacred name of religion employed as a state engine to make mankind hate.”

Lyon was indicted on sedition charges on Oct. 5, 1798, and arrested the next day. A federal judge fined Lyon $1,000 and sentenced him to four months in prison. (4) He served time in a 16′ x 12′ cell used for felons, counterfeiters, thieves, and runaway slaves. Judge William Paterson – an avid nationalist and supporter of the Federalist Party – lamented the fact he couldn’t impose a harsher sentence.

Lyon won reelection while in jail by a landslide.

Recognizing the grave danger the Alien and Sedition Acts posed to the basic constitutional structure, Thomas Jefferson and James Madison drafted resolutions that were passed by the Kentucky and Virginia legislatures on Nov. 10 and Dec. 21, 1798, respectively. The “Principles of ’98” formalized the process of nullification as the “rightful remedy” when the federal government oversteps its authority.

While the Kentucky Resolutions and the Virginia Resolutions set out the philosophical and constitutional justifications for nullification, they did not provide any specific nullification strategies. Correspondence between Jefferson and Madison indicates they didn’t plan to stop with the resolutions. They hoped to use them as a springboard for state action against the unconstitutional Alien and Sedition Acts. In a letter dated Aug. 23, 1799, Jefferson advised Madison that they should “make a firm protestation against the principle & the precedent; and a reservation of the rights resulting to us from these palpable violations of the constitutional compact by the Federal government, and the approbation or acquiescence of the several co-states; so that we may hereafter do, what we might now rightfully do.” 

Ultimately, Jefferson’s election to the presidency in the 1800 election made the issue moot. Jefferson simply declined to reauthorize the Alien and Sedition Acts. The Sedition Act expired on March 3, 1801.

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