Madison and Jefferson (62 page)

Either Marshall was liberal-minded or he was a Federalist tool—he could not have it both ways. To show the contrast between the parties, “Curtius” took as his model of republican decency the constant object of the Federalists’ anti-Gallicism, Albert Gallatin. After demanding an explanation of what it was that made Marshall a hero, he reversed his argument: Why was Gallatin
not
a hero? Why was he, instead, the convenient target of mean-spirited Federalists? “Mr. Gallatin has been persecuted with all the detestable rancour of envy and malice,” observed “Curtius”; and yet this brilliant man remained “serene in the midst of clamours,” “attached to the constitution because it is free, [attached] to the people because they are generous and amiable, and to the country because he has found in it, an asylum from oppression and misery.” For the opinion writer, a beautiful irony lay in his magnificent truth: “The conduct of Mr. Gallatin is his best vindication,” “Curtius” concluded. “The foreigner has defended the constitution against the attacks of native [born] Americans.” Perhaps the Federalists were “formidable in their numbers,” but they were iniquitous in their rule.
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Now, and for some years to come, Republicans would have to remind their enemies that Hamilton, reared in the West Indies, had come to America at the age of eighteen; Gallatin, educated in freedom in Switzerland, arrived at the age of nineteen. Who, then, was more American?

The issue was far from simple. Jefferson had recently revealed the nativist strain in his thinking when he drafted a petition in opposition to the action of a federal grand jury in Virginia. He objected to the grand jury’s
presentment against a Republican congressman who used anti-administration language in a circular to his constituents. When judges or grand jurors were made “inquisitors,” violations of free speech would receive sanction. Jefferson diagnosed the problem correctly but went too far in the cure he recommended. He wanted the grand jurors impeached by the Virginia House of Delegates. And he further argued that the jury pool should be restricted to “native citizens of the United States.” He must have been told that one or more members of this particular grand jury were not U.S.-born.

Madison gently urged Jefferson to reconsider. The state assembly was not the proper venue for his complaint—and Monroe agreed. The operation of a federal grand jury was a federal, not a state, matter. Madison worried about the precedent Jefferson would be setting if his plan were enacted: it could only result in the “partial disenfranchisement” of naturalized citizens. Would this not apply to a Gallatin? Jefferson had not thought everything through. In any case, even with changes, his radical remedy was rejected by the Virginia House of Delegates.
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In May 1798 the Federalist-led Congress moved in a darker direction when it settled on a plan that would give Federalists the power to rid the country of the pesky Gallatin and others they perceived to be dangerous foreigners. A Francophobic impulse (or conspiracy, as Madison would have it) put the country on a war footing, at the same time as it made into suspects foreign-born persons whose political views threatened the administration. After the Alien Acts were adopted, the Federalists in Congress capitalized on their momentum and passed a Sedition Act, legitimizing the harassment and curtailing the liberties of native-born citizens.
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The Alien Acts represented the first act in the unrepublican episode that Jefferson famously dubbed “the reign of witches.”
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It would now take fourteen years to attain citizenship, he reported to Madison, owing to the fear that “a deluge of democrats” would reach America’s shores as a result of continued political conflict and confusion across the Atlantic. The Alien Enemies Act would give the president, during wartime, the power to identify, arrest, and deport any alien whom he considered a threat. For Madison, the new legislation was “a monster that must forever disgrace its parents,” and he believed (wrongly) that Washington would disapprove of the “hot-headed proceedings” of John Adams in taking the country in the direction of war. A number of Republicans in Congress, outnumbered by the Federalists and afraid of being associated with the French enemy, kept quiet. President Adams learned from his son John Quincy, then in Berlin,
that the French had designs on American territories. Acting on this intelligence, and responding to the patriotic professions of various local militias, he authored a series of presidential statements, which were disseminated through the nation’s newspapers.
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The Sedition Act was the most extreme manifestation of panic politics. Its unusual provision was to declare that publishing, or even verbalizing, “scandalous and malicious” statements about the president or Congress would result in a stiff fine and imprisonment. The carefully worded statute did not, however, protect the
vice
president from libelous insults, which was presumably intentional. By June 1798 a good number of congressional Republicans were running scared, afraid of appearing unpatriotic. William Branch Giles went back to Virginia. Edward Livingston returned to New York. Only Gallatin remained in town to monitor the Federalists in their moment of uncontested power.
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Newspapers took up the slack.
Carey’s United States’ Recorder
, published in Philadelphia, right away understood the sedition legislation as a “nefarious” instrument meant to establish “presidential infallibility” while rendering the federal Constitution “a dead letter, or a piece of musty parchment.” It vowed: “The people may be gagged by alien and sedition bills, but at elections they will make their voice heard.” On the other side of the lopsided equation, the
Columbian Centinel
of Boston asked rhetorically: “Who can object to a Sedition Bill,” when American newspapermen were calling for subservience to France, and when such “wretches in this country … openly profess to wish the United States
may be punished
, and that all may terminate to the
glory of France
.”
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To combat the threat to national security, President Adams established a provisional army, for which he planned to enlist tens of thousands of men. He dutifully named George Washington as commander. To Adams’s dismay, Washington said he would come out of retirement only if Hamilton were his second in command, at the rank of major general. Adams despised Hamilton for what he described as “debauched Morals” as well as a limitless ambition, but he swallowed his pride. It could not have been easy. He now had a Hamiltonian cabinet and a Hamiltonian army, while attempting to exercise executive authority over events that were spiraling out of control. Adams wanted his old friend Henry Knox, the former secretary of war, to be Hamilton’s superior, and Knox himself expressed disgust with Hamilton’s grand maneuver. But neither Hamilton nor Washington would accept an arrangement whereby Hamilton would have to answer to anyone—for it was unlikely that Washington would ever take the field.

Demonstrating just how solitary Adams’s voice was, he had intended to appoint battle-hardened Aaron Burr a brigadier general, but Hamilton’s men squelched the appointment. Before long Federalist mainstays began to ask what Hamilton’s real motives were. Jefferson wryly called him “our Buonaparte,” and Adams, in private, likened him to Julius Caesar. Yet as much as he longed to ride at the head of an expanded army, Hamilton did not instigate, or even advocate, the Alien and Sedition Acts. He worried about a political backlash, and he felt that the common law would be plenty effective in putting anti-administration newspapers out of business.
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Able to resist expressing sympathy for John Adams under any circumstances, Madison scoffed at the notion, then in vogue, that the president deserved credit for keeping the problem from getting worse. When the “infatuation of the moment” was past, Madison told Jefferson, it would be clear that the executive had deviously manipulated the public into doing what the government wanted. “Perhaps it is a universal truth,” he argued most forcefully, “that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.” Keeping America safe was a sham justification for measures denying free speech, consolidating power, and impeding open debate in Congress.
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The undeclared war that followed became known to history as the Quasi-War. A few naval engagements between U.S. and French warships occurred, but casualties were light. The provisional army never fought. The most important result of the Quasi-War was the executive’s consolidation of power in the conduct of foreign policy. Congress could request documents relating to diplomatic instructions, but it could do little to prevent any administration from charting a belligerent course. As things turned out, though, after the president returned to Massachusetts in July and was removed from the pressure put on him by his Hamiltonian cabinet, he determined that France had no intention of invading America and that it would be wise to restart diplomacy.

For Republicans, however, the summer did not pass quietly. In late June anticipation was already high as to the Federalists’ plans to shut down dissent. Senator Henry Tazewell of Virginia had a dark sense of humor, which he expressed when he sent Madison a copy of the just-published Sedition Bill. He presumed that once Jefferson left Philadelphia and returned to Virginia, Madison would need a reliable source of news. Tazewell volunteered to be that source: “I will send you an account of whatever may occur that can be interesting,” he said, “if I am not guillotined.”
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Madison indulged his taste for humor. In advance of the Fourth of July 1798, he drafted a long list of mock toasts. It was a tradition in every town in America to lift glasses to the president, the Union, the Constitution, and other national symbols. Lists of toasts were published in the newspapers. Madison had his fun with the standard format: “The P. & V.P. may the [latter] never feel the passion of J.A. nor the [former] forsaken by the philosophy of T.J.” Next, the ironist lifted his metaphorical glass to the Sedition Law: “The freedom of speech; May it strike its enemies dumb.” And fixing on solid ground the loftiest of Americans: “G.W. the hero of liberty. May his enemies have the justice to applaud his virtues, and his friends the candor to acknowledge his error.” This was as close as one could come before crossing the line with respect to the esteemed Washington.
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Madison’s toasts never made it into print. While Jefferson was on a visit to Montpelier during that first week of July, a paper in Boston, the heart of Adams country, celebrated “that deathless instrument, the Declaration of American independence” by affirming that its inspired author, “the immortal Jefferson,” deserved praise for the inspiration he brought to its composition.
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Bache’s paper added an impressive two hundred new subscribers in response to the enactment of the Sedition Law. “Thus,” the editor wrote of those who sought to enfeeble him, “the daring hand of persecution already counteracts its own designs.” Bache’s exuberance did not last. After years of polemical writing, Benjamin Franklin’s undiplomatic grandson was finally indicted for seditious libel. But in September 1798, a month before he was scheduled for trial, the defendant contracted yellow fever and died. By coincidence, one week later John Fenno, the Federalists’ favorite editor, died too.
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It was not President Adams so much as his abrasive secretary of state, Timothy Pickering, who spearheaded the prosecutions for seditious libel. Pickering lumped together all Irish as dangerous elements and recommended drastic restrictions on immigration. Among those put on trial during the second half of the Adams administration were the Scottish pamphleteer James T. Callender, the Irish newspaperman John Daly Burk, and the fireplace-tong-wielding Matthew Lyon of Vermont. For libeling the president, Callender was fined $200 and sentenced to nine months in prison. Burk was bullied into shutting down his presses, as Aaron Burr sent him to the friendlier clime of Virginia to avoid deportation. Lyon, who bore a noticeable Irish accent, was fined $1,000 and jailed for four months after writing that the executive had “an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” He was reelected to Congress from his
cell, and Jefferson was among those in Philadelphia who made contributions to the fund that paid Lyon’s fine. Lyon had become a symbol in America of the price one paid for being outrageous in the act of seizing one’s liberty.
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Edmund Pendleton’s nephew John Taylor had left the U.S. Senate and was now a Virginia assemblyman. When he assured Taylor in June 1798 that “the reign of witches” would not last, Jefferson knew that he and Madison would be brainstorming shortly. After their days together at Montpelier on Jefferson’s way home from Philadelphia, they determined to spend the Virginia summer drafting countermeasures to the clearly unconstitutional Alien and Sedition Acts.

Their answer became known as the Kentucky and Virginia Resolutions. Jefferson had originally intended to send his draft to the North Carolina legislature. But the fortuitous appearance in central Virginia of Kentucky’s John Breckinridge led Wilson Cary Nicholas, to whom Jefferson had confided the work, to change the plan. As Kentucky was already actively protesting the Alien and Sedition laws, Breckinridge assured Nicholas that his state would be a more receptive forum in which to pass judgment on the administration’s excesses. Jefferson agreed to the Kentucky strategy.

Breckinridge’s credentials were strong. Jefferson’s neighbors could attest to his character. He was born in Augusta County, Virginia, west of Albemarle (as the Reverend James Madison was), and had attended the College of William and Mary. In 1785, when Jefferson was in Paris, Breckinridge opened a law practice in Charlottesville, relocating to Kentucky in 1793, where he served as the state’s attorney general for two years before entering the state House of Representatives. He had already drafted resolutions and public protests against the Alien and Sedition Acts before he made his trip to Virginia. His major ally in this effort was the brother of Wilson Cary Nicholas.
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