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Alien & Sedition Acts^1
In 1798 the United States again stood on the brink of war with a major European power, only this time instead of Great Britain being the hostile nation it was France. America’s former Revolutionary War ally, angered by Jay’s Treaty between Great Britain and the United States, was engaged in naval hostilities against American ships. In preparation for an anticipated war against France, Congress, then controlled by members of the Federalist Party, passed a series of four laws collectively called the Alien and Sedition Acts. The fourth of these laws, the Sedition Act, prohibited “any false, scandalous and malicious” writings and utterances against the government and its officials. It called for fines and jail penalties for anyone speaking, writing, or publishing “with intent to defame … or bring into contempt or disrepute” the president or other members of government. The fears of some that the law would be used to stifle legitimate political criticism of the Federalist Party appeared to be realized after several prominent Democratic-Republican newspaper editors and leaders were jailed. Many argued that the Sedition Act violated the First Amendment, which stated that “Congress shall make no law … abridging the freedom of speech, or of the press.” Those who defended the Sedition Act argued that the Bill of Rights prevented Congress only from make laws that created a “prior restraint” on newspaper publications. Congress, they argued, could still punish publishers for newspaper articles they found seditious or otherwise
dangerous to the publicafter publication. Others disagreed, and
the Sedition Act is credited by some historians as stimulating new theories and defenses of the freedom of the press. One important pamphlet published at this time was by George Hay, a member of the Virginia House of Delegates and a future federal judge. In 1799 under the pseudonym of “Hortensius” he wrote a pamphlet
titledAn Essay on the Liberty of the Press. In it, he argues that
(^1) From Leone, Bruno, William Dudley, and John C. Chalberg, eds.Opposing Viewpoint in American History: Volume I: From Colonial Times to Reconstruction. Greenhaven Press, Inc.: San Diego, CA, 1996.
the Sedition Act violates the Bill of Rights by limiting freedoms os speech and of the press, which he argues should be defined broadly. The Federalist politicians who made and enforced the 1798 Sedition Act interpreted “malicious writing” to include criticism of the Federalist Party and its programs, including their support of war against France. Under the law several prominent newspaper editors who had questioned policies and motives of Federalists were jailed, as was Congressman Matthew Lyon, who spent four months in prison for publishing a sharp attack on President John Adams. The law was denounced by many who argued that it violated the Bill of Rights prohibition against laws “abridging freedom of speech or of the press.” In 1799 the House of Representatives, then still under Federalist control, debated the constitutionality of the Sedition Act. Members did not agree, resulting in two reports; the second viewpoint is taken from the Majority Report of the Congress. The report defends the Sedition Acts, arguing that while Congress has no power to engage in prior restraint of newspapers and speeches, it is entitled to pass laws punishing false and seditious writing. The primary author of the majority report was Chauncey Goodrich of Connecticut. The largely negative public reaction to the Sedition Act was in part responsible for the victory of Thomas Jefferson over John Adams in the 1800 presidential election. Jefferson pardoned the people convicted under the act, and allowed it to expire in 1801. The question of its constitutionality never reached the Supreme Court.
The Sedition Act Violates the Bill of Rights (17 99 )
George Hay (1765-1830)^2
It is the object of the succeeding letters, to demonstrate that so
much of the Sedition Bill, as relates to printed libels, is expressly
forbidden by the constitution of the United States.
(^2) FromAn Essay on the Liberty of the Press by George Hay (Philadelphia, 1799).
This question, in strictness, ought not to be discussed; because, if Congress have not power, either expressly given or by
necessary implication, to pass the law under consideration, it is
totally immaterial whether they are forbidden to pass it or not. But as the “freedom of the press,” has never yet been accurately defined, and as there is no subject in which the welfare of society is more essentially concerned, my original undertaking shall be fully performed. The words of the constitution, which contain the express prohibition here relied on, are, “Congress shall make no law abridging the freedom of speech or of the press.”… The words, “freedom of the press,”' like most other words, have a meaning, a clear, precise, and definite meaning, which the times require, should be unequivocally ascertained. That this has not been done before, is a wonderful and melancholy evidence of the imbecility of the human mind, and of the slow progress which it makes, in acquiring knowledge even on subjects the most useful and interesting. It will, I presume, be admitted, that the words in question have a meaning, and that the framers of the amendment containing these words, meant something when they declared, that the freedom of the press mould not be abridged. To ascertain what the “freedom of the press'“ is, we have only to ascertain what freedom itself is. For, surely, it will be conceded, that freedom applied to one subject, means the fame, as freedom applied to another subject.
Two Kinds of Freedom
Now freedom, is of two kinds, and of two kinds only: one is, that absolute freedom which belongs to man, previous to any social institution; and the other, that qualified or abridged freedom, which he is content to enjoy, for the sake of government and society. I believe there is no other sort of freedom in which man is concerned. The absolute freedom then, or what is the same thing, the freedom, belonging to man before any social compact, is the power
uncontrolled by law, of doing what he pleases, provided he does no
injury to any other individual. If this definition of freedom be
applied to the press, as surely it ought to be, the press, if I may personify it, may do whatever it pleases to do, uncontrolled by any
law, taking care however to do no injury to any individual. This
injury can only be by slander or defamation, and reparation should be made for it in a state of nature as well as in society. But freedom in society, or what is called civil liberty, is defined to be, natural liberty, so far, restrained by law as the public good requires, and no farther. This is the definition given by a writer, particularly distinguished for the accuracy of his definitions, and which, perhaps, cannot be mended. Now let freedom, under this definition, be applied to the press, and what will the freedom of the press amount to? It will amount precisely to the privilege of publishing, as far as the legislative power shall say, the public good requires: that is to say, the freedom of the press will be regulated by law. If the word freedom was used in this sense, by the framers of the amendment, they meant to say, Congress shall make no law abridging the freedom of the press, which freedom, however, is to e regulated by law. Folly itself does not speak such language. It has been admitted by the reader, who has advanced thus far, that the framers of the amendment meant something. They knew, no doubt, that the power granted to Congress, did not authorize any control over the press, but they knew that it freedom could not be too cautiously guarded from invasion. The amendment in question was therefore introduced. Now if they used the word “freedom” under the first definition, they did mean something, and something of infinite importance in all free countries, the total exemption of the press from any kind of legislative control. But if they used the word freedom under the second definition they meant nothing; for if they supposed that the freedom of the press, was absolute freedom, so far restrained by law as the public good required, and no farther, the amendment left the legislative power of the government on this subject, precisely where it was before. But it has been already admitted that the amendment had a meaning: the construction therefore which allows it no meaning is absurd and must be rejected.
opinion which is erroneous, is more difficult than the contradiction of a fact which is false. But the power of controlling opinions has never yet been claimed; yet it is manifest that the same construction, which warrants a control in matters of fact, does the fame as to matters of opinion. In addition to this, it ought to be remarked, that the difficulty of distinguishing in many cases between fact and opinion, is extremely great, and that no kind of criterion is furnished by the law under consideration. Of this more, perhaps will be said hereafter. Again, if the congressional construction be right, if the freedom of the press consists in the full enjoyment of the privilege of printing facts that are true, it will be fair to read the amendment, without the words really used, after substituting those said by Congress to have the same import. The clause will then stand thus: “Congress shall make no law abridging the right of the press, to publish facts that are true!” If this was the real meaning of Congress, and the several States, when they spoke in the state constitutions, and in the amendment of the “freedom of the press,” the very great solicitude on this subject displayed throughout the continent, was most irrational and absurd…. This venerable and enlightened assembly had too much wisdom to avow a meaning, so totally incompatible with the real object of their wishes. They knew that there never was a government in the world, however despotic, that dared to avow a design to suppress the truth : they knew that the most corrupt and profligate administrations, that ever brought wretchedness and oppression on a happy and free people, speak in their public acts the language of patriotism and virtue only, and that although their real object is to stop enquiry, and to terrify truth into silence, the
vengeance of the law appears to be directed against falsehood and
malice only: in fact, they knew, that there are many truths, important to society, which are not susceptible of that full, direct, and positive evidence, which alone can be exhibited before a court and jury: That men might be, and often would be deterred from speaking truths, which they could prove, unless they were absolutely protected from the trouble, disgrace, losses, and expense of a prosecution.
That in the violence of party spirit which government knows too well how to produce, and to inflame evidence the most conclusive, might be rejected, and that juries might be packed, “who would find Abel guilty of the murder of Cain.” That nothing tends more to irritate the minds of men, and disturb the peace of society, than prosecutions of a political nature, which like prosecutions in religion, increase the evils, they were, perhaps, intended to remove. They know that the licentiousness of the press, though an evil, was a less evil than that resulting from any law to restrain it, upon the same principle, that the molt enlightened part of the world is at length convinced, that the evils arising from the toleration of heresy and atheism, are less, infinitely less, than the evils of persecution. That the spirit of inquiry and discussion, was of the utmost importance in every free country, and could be preserved only by giving it absolute protection, even in its excesses. That truth was always equal to the task of combating falsehood without the aid of government; because in most instances it has defeated falsehood, backed by all the power of government. That truth cannot be impressed upon the human mind by power, with which therefore, it disdains an alliance, but by reason and evidence only….
Prior Restraint
But, it has been said, that the freedom of the press, consists not in the privilege of printing truth; but in an exemption from previous restraint, and as the Sedition Bill imposes no previous restraint, it does not abridge the freedom of the press. This
profound remark is borrowed from [William] Blackstone and [Jean
Louis] De Lolme, and is gravely repeated, by those who are weak enough to take opinions upon trust. If these writers meant to state what the law was understood to be in England, they are correct. Even if they meant to state what the law ought to be in England, perhaps they are still correct; because it is extremely probable, that a press absolutely free, would in the short course of one year “humble in the dust and
ashes'“ the “stupendous fabric” of the British government. But this definition does not deserve to be transplanted into America. In Britain, a legislative control over the press, is, perhaps essential to the preservation of the “present order of things;”' but it does not follow, that such control is essential here. In Britain, a vast standing army is necessary to keep the people in peace, and the monarch on his throne; but it does not follow that the tranquility of America, or the personal safety of the President, would be promoted by a similar institution. A single remark will be sufficient to expose the extreme fallacy of the idea, when applied to the Constitution of the United States. If the freedom of the press consists in an exemption from previous restraint, Congress may, without injury to the freedom of the
press, punish with death, anything actually published, which a
political inquisition may choose to condemn. But on what ground is this British doctrine respecting the freedom of the press introduced here? In Britain, the parliament is acknowledged to be omnipotent…. In Britain there is no [singularly written] constitution, no limitation of legislative power; but in America, there is a constitution, the power of the legislature is limited, and the object of one limitation is to secure the freedom of the press.
Common Law and the Press
If this doctrine is avowed here, under the idea that the common law of England is in force in the United States, even this idea will be of no avail. The common law knows nothing of printing or the liberty of the press. The art of printing was not discovered, until towards the close of the 14th century. It was at first in England a subject of star-chamber jurisdiction, and afterwards put under a licenser by statute. This statute expired just before the commencement of the present century. Before this event, the rights of the press were at the mercy of a single individual. There can be no common law, no immemorial usage or custom concerning a thing of so modern a date. The freedom of the press, therefore, means the total exemption of the press from any kind of legislative control, and consequently the Sedition Bill, which is an act of legislative control, is an
abridgment of its liberty, and expressly forbidden by the constitution. Which was to be demonstrated.
The Sedition Act Does Not Violate the Bill of Rights (1799) 5 th^ Congress Majority Report^3
The “Act in addition to an act entitled an act for die punishment of certain crimes against the United States,” commonly called the Sedition Act, contains provisions of a twofold nature: first, against seditious acts, and, second, against libelous and seditious writings. The first have never been complained of, nor has any objection been made to its validity. The objection applies solely to the second; and on the ground, in the first place, that Congress have no power by the Constitution to pass any act for punishing libels, no such power being expressly given, and all powers not given to Congress, being reserved to the States respectively, or die people thereof. To this objection it is answered, that a law to punish false, scandalous, and malicious writings against the Government, with intent to stir up sedition, is a law necessary for carrying into effect the power vested by the Constitution in the Government of die United States, and in the departments and officers thereof, and, consequently, such a law as Congress may pass; because the direct tendency of such writings is to obstruct the acts of the Government by exciting opposition to them, to endanger its existence by rendering it odious and contemptible in the eyes of the people, and to produce seditious combinations against the laws, the power to punish which has never been questioned; because it would be manifestly absurd to suppose that a Government might punish sedition, and yet be void of power to prevent it by punishing those acts which plainly and necessarily lead to it; and, because, under the general power to make all laws proper and necessary for carrying into effect the
(^3) From the Majority and Minority Reports on the Repeal of the Sedition Acts, Annuals of Congress, 5th^ Cong., 3rd^ sess. (February 25, 1799).
objections to this law are founded, it would have used the same expressions as in that part of the clause which relates to religion and religious texts; whereas, the words are wholly different: “Congress,” says the Constitution, (amendment 3d.) “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech of the press.” Here it is manifest that the Constitution intended to prohibit Congress from legislating at all on the subject of religious establishments, and the prohibition is made in the most express terms. Had the same intention prevailed respecting the press, the same expressions would have been used, and Congress would have been “prohibited from passing any law respecting the press.” They are not, however, “prohibited” from legislating at all on the subject, but merely from abridging die liberty of the press. It is evident they may legislate respecting the press, may pass laws for its regulation, and to punish those who pervert it into an engine of mischief, provided those laws do not abridge its liberty. Its liberty, according to the well known and universally admitted definition, consists in permission to publish, without previous restraint upon die press, but subject to punishment afterwards for improper publications. A law, therefore, to impose previous restraint upon the press, and not one to inflict punishment on wicked and malicious publications, would be a law to abridge die liberty of the press, and, as such, unconstitutional.
