CHAPTER I

THE STATE OF AMERICAN CIVIL LIBERTIES--1798 TO 1914

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When the Federalists enacted the Alien and Sedition

Laws of 1798 a hurricane of protest was raised that culminated Passed in the midst of the popu

in the decline of the party. lar excitement of the breaking out of war with France, they were directed at the French immigrants and the insolent Republican press. The Alien Act gave the president power for a term of two years "to order all such aliens as he should judge dangerous to the peace and safety of the United States..... to depart out of the territory of the United States." The Sedition Act, which was to be valid until the close of the administration, provided that anyone writing or publishing "any false, scandalous, and malicious writings" against the government, either House of Congress, or the president, "or exciting against them the hatred of the good people of the United States, to stir up sedition", should be punished by a fine not exceeding $2000 and by imprisonment not exceeding two years.

The reaction to these measures was instant. The legislature of Virginia passed a resolution, prepared by Madison, which characterized the acts as "alarming infractions of the Constitution". The legislature of Kentucky passed a resolution, prepared by Jefferson, declaring the Sedition Act to be "altogether void and of no effect". Both states invited other states to join them in denouncing the acts and

1. For the framework of Chapter I, I am much indebted to Arthur N. Holcombe's volume--"The Foundations of the Modern Commonwealth", particularly Chapter IX.

in demanding their repeal at the next session of Congress. The vigorous opposition to these measures is

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apparently due to a number of causes. The protest turned most against the Sedition Law for this affected the liberties of citizens. That this law was not abusively harsh is shown

by the fact that the penalties were not especially severe. Again, it was provided that the truth of the matter published might be offered in evidence of good motive and justifiable end, and what is quite as important, the jury was allowed to determine the character of the statement objected to as well as the fact of publication. The former would excuse the

man who wrote, or published writings, against the government truthfully, and the latter would obviate the danger of tyrannical judgment. But what the law declared seditious was couched in broad language and considerable discretion was left to authorities charged with enforcement. The chief 3 grounds for the hot opposition to the measure were: (1) the trepidations of the states of excessive centralization of power in the Federal government, and (2) the anxiety of the Republicans lest the Federalists harass their party press by means of the Act. However, as a substratum to this second reason is the unmistakable fact that the opinion of the time favored an opposition party being free to criticise the party in power. The public interest lay more in the freedom of discussion than in the preservation of good order at its expense. It is significant that after the Sedition Act had expired by limitation in 1801 the government made amends for the measure by refunding the fines opposed under its authority,

2. See Muzzey, D. S.--"An American History", pp. 171-2. 3. Holcombe on. cit. nn. 353 4 5. See

Chafee

and Jefferson pardoned the prisoners convicted under it.

When the young American Republic rushed into the

War of 1812 opinion was much divided on the value and necessity of the war. The most intense opposition came from New England where it was dubbed "Mr. Madison's War". Vermont and Connecticut flatly refused to furnish a man of their militia for the invasion of Canada. The opposition of this section 4 is aptly described by Muzzey:

"While Jackson was bringing the war to a victorious close for the American side in the far South, the discontent of the new England States with "Mr. Madison's war" was ripening into serious opposition to the administration. Every state north of Maryland with a seacoast had voted against Madison (that is, against the war) in the election of 1812. The sectional character of the war is strikingly shown by the fact that of the $11,000,000 loan authorized by Congress in 1812 New England, which was the richest section of the country, subscribed for less than $1,000,000. There were even those in New England who let their disgust with the policy of the administration carry them into treason and recouped the losses that Madison and Clay brought to their commerce by selling beef to the British army in Canada"..... Petitions began to come into the Massachusetts legislature from many towns, praying the state to take steps toward getting the Constitution of the United States amended in such a way as to "secure them from further evils. "At the suggestion of Massachusetts delegates from the five New England States met in a convention at Hartford, Connecticut, December 15, 1814. These delegates, twenty-six in number, represented the remnant of the Federalist party. They denounced the "ruinous war" and proposed a number of amendments to the Constitution...

It is important to observe in this connection that the War of 1812 was fought without any attempt on the part of the Federal government to limit or repress the expression of opinion, even tho that opinion was hostile to the war and the success of the American arms was endangered thereby.

4. Muzzey, op. cit., pp. 188-189.