Transfer of Power

 From History News Network:

On July 14, 1798—nine years to the day after the storming of the Bastille—President John Adams signed an American Sedition Act into law. The 1789 Parisian incident had set in motion events that ultimately toppled and killed King Louis XVI; his queen, Marie Antoinette; and their heir to the throne, the dauphin. Adams’s signature likewise led to his own ouster, but the president; his lady, Abigail; and their heir, John Quincy, got to keep their heads in the transition and thereafter. On two telling dimensions—orderliness of regime change and avoidance of bloodshed—Federalist-era America showed itself vastly superior to Revolutionary France. But the events of 1798-1801—America’s first peaceful transfer of power from one presidential party to another—were in fact far more fraught than is generally understood today and in myriad respects cast an eerie light on the not entirely peaceful transfer of presidential power in 2020-21.

UNDER THE TERMS OF THE Sedition Act, anyone who dared to criticize the federal government, the president, or Congress risked a fine of up to $2,000 and a prison term of up to two years. But venomous criticism, even if knowingly false and violence-inciting, that targeted the vice president was fair game under the law. Thus, in the impending 1800 electoral contest between Adams and his main rival, Thomas Jefferson—who was also Adams’s sitting vice president—Adams and his Federalist Party allies could malign Jefferson, but Jefferson and his allies, the Democratic Republicans, could not reciprocate with equal vigor. Congressional aspirants attacking Congressional incumbents would need to watch their words, but not vice versa. Just in case the Democratic Republicans managed to win the next election, the act provided that it would poof into thin air on March 3, 1801, a day before the new presidential term would begin.

On its surface, the act seemed modest. It criminalized only “false, scandalous, and malicious” writings or utterances that had the “intent to defame” or comparable acidic motivation. The defendant could introduce into evidence “the truth of the matter contained in the publication charged as a libel.”

This was more generous than libel law at the time in Britain, where truth was no defense. Indeed, truth could actually compound a British publisher’s liability. “The greater the truth, the greater the libel,” because the libelee would suffer a greater reputational fall if the unflattering story was, in fact, true. British law was thus all about protecting His Majesty and His Lordship and His Worshipfulness from criticism; it was the product of a residually monarchial, aristocratic, and deeply deferential legal and social order. British freedom of the press meant only that the press would not be licensed or censored prepublication. Anyone could freely run a printing press, but printers might face severe punishment after the fact if they used their presses to disparage the powerful.

Back in the 1780s, Jefferson had urged James Madison and other allies to fashion a federal Bill of Rights that would go beyond English law—but not by miles. As Jefferson envisioned what would ultimately become America’s First Amendment, “a declaration that the federal government will never restrain the presses from printing any thing they please, will not take away the liability of the printers for false facts printed.” Jefferson evidently could live with publisher liability for “false facts printed.” But what if the falsehood was a good-faith mistake, or a rhetorical overstatement in a vigorous political give-and-take? Could an honest mistake or mere exuberance ever justify serious criminal liability and extended imprisonment?

Also, who would bear the burden of proof? The Sedition Act purported to criminalize only “false” statements, but in the 1790s many derogatory comments were legally presumed false. The Sedition Act said that a defendant could “give in evidence in his defence, the truth of the matter,” but many edgy statements mixed truth with opinion and rhetoric. If a critic wrote that John Adams was a vain and pompous ass who did not deserve a second term, how exactly could the critic establish the courtroom “truth of the matter”?

ADAMS ERRED NOT SIMPLY in signing the Sedition Act but in mindlessly and mercilessly prosecuting and punishing, and never pardoning, men under it. He and his minions hounded tart but peaceful speakers and printers whose only real crime was dislike of John Adams, his party, and his policies, in cases whose facts were miles apart from treason, riot, or mayhem. Indeed, under the ridiculously strict standards of his own administration, a young John Adams himself should have been fined and imprisoned back in the 1760s and 1770s for his vigorous denunciations of colonial Massachusetts royal Governor Thomas Hutchinson.

In the first high-profile sedition case, brought in October 1798, the Adams administration targeted a sitting Democratic Republican congressman from Vermont, Matthew Lyon, for political writings and harangues, some of them at campaign rallies. In one passage highlighted by the prosecution, Lyon had written that Adams had “swallowed up” every proper “consideration of the public welfare” in “a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, or selfish avarice.” Adams, wrote Lyon, had “turned out of office . . . men of real merit [and] independency” in favor of “men of meanness.” Lyon had also read at public meetings a communication from a French diplomat bemoaning the “extremely alarming” state of relations between France and the United States, worsened by the “bullying speech of your president and stupid answer of your senate.” Congress, wrote the diplomat in words that Lyon publicly repeated, should send Adams “to a mad house.”

How exactly could Lyon prove in a courtroom the technical truth of these words, blending as they did fact, opinion, analysis, interpretation, and rhetoric? The jury convicted and the court sentenced Lyon to a fine of $1,000 and a four-month imprisonment.

Dozens of newspapers across the continent brought readers detailed reports of the cause célèbre. While in prison, Lyon wrote an account of his travails that Philadelphia’s Aurora General Advertiser published in early November, followed by newspapers in many other localities. The congressman vividly described his conditions of confinement: “I [am] locked up in [a] room . . . about 16 feet long by 12 feet wide, with a necessary in one corner, which affords a stench about equal to the Philadelphia docks, in the month of August. The cell is the common receptacle for horse-thieves, money makers [counterfeiters], runaway negroes, or any kind of felons.” When Lyon stood for reelection—from prison!—in December, his constituents gave him a roaring vote of confidence, returning him to his House seat. Adams thus won the first courtroom battle but was beginning to lose the war of public opinion.

A year and a half later, the last big Sedition Act trial before the election of 1800 resulted in an even harsher sentence—nine months’ imprisonment. The defendant was the trashy but talented journalist James Callender—the man who broke the Alexander Hamilton sex-scandal story in 1797 and would later, in 1802, expose Jefferson’s affair with his slave mistress Sally Hemings (who was also his deceased wife’s half sister). In the run-up to the election of 1800, Callender published a campaign pamphlet, The Prospect Before Us.

Callender painted in bright colors and attacked Adams for just about everything: “Take your choice, then, between Adams, war and beggary, and Jefferson, peace and competency!” The “reign of Mr. Adams has been one continued tempest of malignant passions. As president, he has never opened his lips, or lifted his pen without threatening and scolding.” The administration’s “corruption” was “notorious.” Indeed, the president had appointed his own son-in-law, William Stevens Smith, to a plum federal office, surveyor of the port of New York, thus “heap[ing] . . . myriads of dollars upon . . . a paper jobber, who, next to Hamilton and himself is, perhaps, the most detested character on the continent.” (Read more.)

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