Alexander Hamilton (112 page)

So what
did
Hamilton think of the notorious laws? Fearing an American fifth column, he now wanted to throttle the flow of immigration. “My opinion is that the mass [of aliens] ought to be obliged to leave the country”—a disappointing stance from America’s most famous foreign-born citizen and once an influential voice for immigration. He did argue for exceptions, however, and admonished Pickering, “Let us not be cruel or violent.”
¹⁴
In contrast, he was stunned by his first glance at the Sedition Act, protesting to Treasury Secretary Wolcott, “There are provisions in this bill which according to a cursory view appear to me highly exceptionable and such as more than anything else may endanger civil war....I hope sincerely the thing may not be hurried through. Let us not establish a tyranny. Energy is a very different thing from violence.”
¹⁵

Unfortunately, once they were amended, Hamilton supported the Alien and Sedition Acts. Among other things, he was still outraged by the cutthroat behavior of the Scottish-born James T. Callender, who had exposed the Reynolds scandal. By late 1799, Hamilton exhorted Senator Jonathan Dayton to prosecute such foreignborn journalists, claiming that “in open contempt and defiance of the laws they are permitted to continue their destructive labours. Why are they not sent away? Are laws of this kind passed merely to excite odium and remain a dead letter?”
¹⁶
Hamilton was never an automatic press critic, however much he deplored its abuses. And he justly applauded one meritorious idea buried in the Sedition Act: that in libel cases, the truth of an allegation should be allowed as a defense. Before, it had been necessary for the prosecution to prove only that the charges were defamatory, not that they were true. Hamilton would have much more to say about this issue in a dramatic legal case that was to expand press freedom in the United States. For this reason, he later said that “the sedition law, branded indeed with epithets the most odious[,]...will one day be pronounced a valuable feature in our national character.”
¹⁷
For Republicans, however, the most salient feature of the Sedition Act was that it violated the First Amendment of the Constitution.

Republicans knew the unashamedly partisan nature of the new bills. “The Alien bill proposed in the Senate is a monster that must forever disgrace its parents,” Madison told Jefferson, who quickly agreed that it was “a most detestable thing.”
¹⁸
So he would not have to preside over a Senate enacting legislation that he found hateful, Jefferson slipped away from Philadelphia and took refuge at Monticello for four and a half months. Beyond indignation, Jefferson professed a serene faith that the common sense of the people would rectify such errors. He told a fellow Virginian, “A little patience and we shall see the reign of witches pass over, their spells dissolved, and the people, recovering their true sight, restoring their government to its true principles.”
¹⁹
He would not rely upon patience alone. He believed that Washington had checked the most harmful tendencies of the Federalists but that under Adams the party had “mounted on the car of state and, free from control, like Phaethon on that of the sun, drove headlong and wild.”
²⁰

Often amazingly accurate in his predictions, Jefferson saw the country approaching a political crossroads. The Federalists were displaying insufferable arrogance and using federal power to snuff out the opposition. In so doing, he concluded, they would relinquish the advantages they had won through the XYZ dispatches. Perhaps suffering from fatigue after almost a decade in power, the Federalists were governed more by fear than by hope. They had helped to build a durable government but did not trust the strength of the institutions they had so well created. Ironically, it was Jefferson, searing in his criticism of Federalist measures, who surveyed the future with habitual optimism. The Alien and Sedition Acts unified the Republican party while unchecked warfare between the Adams and Hamilton wings of the Federalist party was inwardly eroding its strength.

Many Republicans thought it best to sit back and let the Federalists blow themselves up. As James Monroe put it, the more the Federalist party was “left to itself, the sooner will its ruin follow.”
²¹
Jefferson and Madison were not that patient, especially after Hamilton became inspector general of the new army. Jefferson thought the Republicans had a duty to stop the Sedition Act, explaining later that he considered that law “to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”
²²
With Federalists in control of the government, this political magician decided that he and Madison would draft resolutions for two state legislatures, declaring the Alien and Sedition Acts to be unconstitutional. The two men operated by stealth and kept their authorship anonymous to create the illusion of a groundswell of popular opposition. Jefferson drafted his resolution for the Kentucky legislature and Madison for Virginia. The Kentucky Resolutions passed on November 16, 1798, and the Virginia Resolutions on December 24. Jefferson’s biographer Dumas Malone has noted that the vice president could have been brought up on sedition charges, possibly even impeached for treason, had his actions been uncovered at the time.

In writing the Kentucky Resolutions, Jefferson turned to language that even Madison found excessive. Of the Alien and Sedition Acts, he warned that, “unless arrested at the threshold,” they would “necessarily drive these states into revolution and blood.”
²³
He wasn’t calling for peaceful protests or civil disobedience: he was calling for outright rebellion, if needed, against the federal government of which he was vice president. In editing Jefferson’s words, the Kentucky legislature deleted his call for “nullification” of laws that violated states’ rights. The more moderate Madison said that the states, in contesting obnoxious laws, should “interpose for arresting the progress of the evil.”
²⁴
This was a breathtaking evolution for a man who had pleaded at the Constitutional Convention that the federal government should possess a veto over state laws. In the Kentucky and Virginia Resolutions, Jefferson and Madison set forth a radical doctrine of states’ rights that effectively undermined the Constitution.

Neither Jefferson nor Madison sensed that they had sponsored measures as inimical as the Alien and Sedition Acts themselves. “Their nullification effort, if others had picked it up, would have been a greater threat to freedom than the misguided [alien and sedition] laws, which were soon rendered feckless by ridicule and electoral pressure,” Garry Wills has written.
²⁵
The theoretical damage of the Kentucky and Virginia Resolutions was deep and lasting. Hamilton and others had argued that the Constitution transcended state governments and directly expressed the will of the American people. Hence, the Constitution began “We the People of the United States” and was ratified by special conventions, not state legislatures. Now Jefferson and Madison lent their imprimatur to an outmoded theory in which the Constitution became a compact of the states, not of their citizens. By this logic, states could refrain from complying with federal legislation they considered unconstitutional. This was a clear recipe for calamitous dissension and ultimate disunion. George Washington was so appalled by the Virginia Resolutions that he told Patrick Henry that if “systematically and pertinaciously pursued,” they would “dissolve the union or produce coercion.”
²⁶
The influence of the doctrine of states’ rights, especially in the version promulgated by Jefferson, reverberated right up to the Civil War and beyond. At the close of that war, James Garfield of Ohio, the future president, wrote that the Kentucky Resolutions “contained the germ of nullification and secession, and we are today reaping the fruits.”
²⁷

For Hamilton, the Virginia and Kentucky Resolutions threatened to undo his lifelong goal of molding the states into a single, indivisible nation. Rejecting as a “gangrene” the idea that states could arbitrarily disobey certain federal laws, he asserted categorically that this would “change the government.”
²⁸
He inquired of Theodore Sedgwick, a High Federalist, “What, my dear Sir, are you going to do with Virginia? This is a very serious business, which will call for the wisdom and firmness of the government.”
²⁹
Hamilton wanted the Virginia and Kentucky Resolutions submitted to a special congressional committee, which would expose how they would destroy the Constitution and afford evidence “of a regular conspiracy to overturn the government.”
³⁰
Just as Jefferson believed that Republicans could turn the Alien and Sedition Acts to advantage, so Hamilton thought the Federalists could capitalize on the misconceived Kentucky and Virginia Resolutions. “If well managed,” he told Rufus King, “this affair will turn to good account.”
³¹

Of the quartet of laws intended to silence dissent, the Sedition Act proved the most pernicious; indictments were brought against Republican editors based on flimsy, trumped-up charges. Some people were hauled into court for the heinous crime of setting up a liberty pole with the banner: “No Stamp Act; no Sedition, no Alien-Bill; no Land Tax; Downfall to the Tyrants of America; Peace and Retirement to the President.”
³²
One Republican editor made the mistake of calling Hamilton’s projected army a “standing army” and paid a steep price: a two-hundred-dollar fine plus two months in prison, where he could ponder his linguistic error. Another editor earned eighteen months behind bars for daring to print the heresy that the government allowed the wealthy to benefit at the expense of commoners. Congressman Matthew Lyon of Vermont got four months in jail for criticizing the president’s “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”
³³
The most outlandish case involved the prosecution of Luther Baldwin of New Jersey, who, under the spell of strong drink, wished that the ceremonial cannon fire greeting President Adams had landed in his backside. Five of the six most influential Republican papers were ultimately prosecuted under the new laws by a Federalist-dominated judiciary.

During the reign of the Alien and Sedition Acts, Hamilton, long embattled by slander, instigated a libel suit against New York’s leading Republican newspaper,
The Argus.
After the death of publisher Thomas Greenleaf in September 1798, his widow, Ann, perpetuated the paper’s crusade against the Adams administration. Backed by the Sedition Act, Secretary of State Pickering—nicknamed “the Scourge of Jacobinism” for exploiting the government’s new prosecutorial powers—asked New York district attorney Richard Harison to monitor
The Argus
for “audacious calumnies against the government.”
³⁴
This led to a sedition prosecution against Ann Greenleaf for her paper’s contention that “the federal government was corrupt and inimical to the preservation of liberty.”
³⁵
Her problems were exacerbated on November 6, 1799, when the paper reprinted an article alleging that Hamilton had tried to squash the Philadelphia-based
Aurora
by offering to buy it for six thousand dollars from the widow of Benjamin Franklin Bache. (The sum was supposedly Hamilton’s share of a joint Federalist bid.) Margaret Bache claimed that she had rebuffed Hamilton’s offer in high dudgeon, insisting that she would never dishonor her husband’s memory by selling to Federalists. Aside from the small detail that he had never made such a bid, what irked Hamilton was that the
Aurora
had spun a tangled skein of speculation as to where he might have gotten the six thousand dollars. How, the
Aurora
queried, could Hamilton afford this when he had made so much of his inability to pay James Reynolds (“the reputed husband of the
dear Maria
”) one thousand dollars? The
Aurora
author served up a ready-made answer: the funds came from “British secret service money.... One would have supposed Mr. Hamilton might have fallen upon a better plan to suppress the
Aurora,
for it is a bungling piece of work at best.”
³⁶

For years, Hamilton had tried ceaselessly to stamp out slander and preserve his reputation. Now, he was convinced that it was all part of a well-organized plot to overthrow the government, as evidenced by the Kentucky and Virginia Resolutions. The same day that
The Argus
ran its offending piece about him, he composed an angry letter to Josiah Ogden Hoffman, New York’s attorney general, asking for criminal prosecution of the perpetrators on libel charges. He cast his grievance in cosmic terms, saying that he had long been subject to “the most malignant calumnies” but had refrained from libel suits, “repaying hatred with contempt.” He continued: “But public motives now compel me to a different conduct. The design[s] of that faction to overturn our government...become every day more manifest and have of late acquired a degree of system which renders them formidable. One principal engine for effecting the scheme is by audacious falsehoods to destroy the confidence of the people in all those who are in any degree conspicuous among the supporters of the government.”
³⁷
The next day, Cadwallader Colden, the assistant attorney general, visited Ann Greenleaf to apprise her of the prosecution. When she pleaded that she had merely reprinted the questionable article from another paper, Colden pointed out that under the Sedition Act her paper was still liable. Greenleaf then tried another line of defense: she had played no part in running the paper.

The suit was therefore filed against the editor, David Frothingham, who tried to dodge prosecution by billing himself as a journeyman printer in
The Argus
office. Despite his demanding duties as inspector general, Hamilton sat in on the trial, itching to testify. According to one newspaper account, the attorney general told the court that Hamilton’s “reputation depended in a great measure on the verdict then to be given. This was dearer to the witness than property or life.”
³⁸
(In retrospect, this statement has an eerily true ring.) Falling back on the common law, the court did not allow Hamilton to testify as to the truth or falsity of the charges leveled against him—a situation that may have firmed his resolve to establish this principle in American libel law. He did testify to general circumstances about the articles and said he had never made any offer for the
Aurora.
Asked whether the
Aurora
was hostile to the U.S. government, Hamilton fired back a resounding yes. Frothingham was convicted, fined one hundred dollars, and incarcerated in Bridewell prison for four months.