What’s a president to do? John Adams and the Alien and Sedition Acts

“Daringly do the vile incendiaries keep up in Bache’s paper the most wicked and base, violent and calumniating abuse,” wrote Abigail Adams to her sister in the spring of 1898. Benjamin Bache’s Philadelphia Aurora had been criticizing Abigail Adams’s husband, John Adams, the president. She didn’t like it. Her husband represented not himself alone but the country as a whole; criticism of the administration was criticism of the country. “It insults the majesty of the sovereign people.” Congress had debated the issue but done little more. “Nothing will have an effect until Congress pass a sedition bill.”

Congress agreed, approving in the summer of 1798 a bill that outlawed much criticism of the government. “If any person shall write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States . . . then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”

The measure went to the president for his approval or veto. Adams’s only predecessor, George Washington, had vetoed but two bills sent to him by Congress, one in each of his two terms. Adams in the year-and-a-half of his one term so far had vetoed none.

Adams was a stickler for justice. As a Boston attorney he had defended several British soldiers charged with murder in a 1770 protest against British rule. This was an unpopular position for Adams to take—the shootings were being characterized around the country as the “Boston Massacre”—but he believed the right to a fair trial applied to everyone. His efforts led to the acquittal of six defendants and conviction of the other two on the lesser charge of manslaughter.

Adams also believed in liberty. “Liberty once lost is lost forever,” he wrote to Abigail in 1775. Liberty included the right to speak one’s mind even against government.

Adams believed in order, as well, without which justice and liberty couldn’t exist. In his inaugural address he appealed to God as “the Patron of Order, the Fountain of Justice, and the Protector in all ages of the world of virtuous liberty.”

Adams understood that liberty and order sometimes conflicted. Indeed, the chief task of government was finding the balance between the two. Adams recognized that the sedition bill limited liberty. But it did so in the service of order, or so its advocates—including Abigail Adams—said.

Order was under stress at just this moment in America. The European war that had prompted Washington’s neutrality proclamation had intensified, and with it attacks on America’s merchant marine. Adams and the Federalists blamed the French, to the point of preparing for war against them. Adams worried that the French government would try to subvert his administration by supporting the opposition press or through agents disguised as immigrants. The sedition bill dealt with the first threat; accompanying legislation on foreign aliens treated the latter.

Absent the war threat, Adams might have vetoed the package. The sedition bill on its face violated the First Amendment’s ban on legislation that abridged freedom of speech and the press. To be sure, the sedition bill spoke of “false, scandalous and malicious” speech and writing; conceivably it exempted true criticism of the government. But Adams understand that much political commentary is opinion rather than assertion of fact, which was why the First Amendment hadn’t distinguished between the two, saying simply “Congress shall make no law . . . abridging the freedom of speech or of the press.” No law meant no law.

So Adams doubtless would have said if he’d been in opposition. But he wasn’t in opposition; he was in office, charged with defending the United States against foreign enemies. He weighed the damage to liberty that might be caused by the sedition law, against the damage to order occasioned by a war against France—and damage to liberty, too, should the war go badly.

He decided in favor of order. He took comfort from the limited duration of the sedition law, which included an expiration set for the last day of the current presidential term. He signed the sedition bill and the alien bills, which became known as the Alien and Sedition Acts.

Among the first to feel the effects of the Sedition Act was Benjamin Bache, Abigail Adams’s bete noire. Bache was arrested and scheduled for trial. He died of yellow fever before he received his day in court.

Adams himself was a subsequent victim. The Alien and Sedition Acts proved unpopular, smacking of a Federalist attempt to silence the Republican opposition. With the confidential connivance of Thomas Jefferson, then vice president, and James Madison, the author of the First Amendment, the legislatures of Kentucky and Virginia approved resolutions declaring the Sedition Act unconstitutional and deserving to be nullified by the states. The Federalists went down to defeat in the elections of 1800, which turned Congress over to the Republicans and replaced Adams as president with Jefferson.

Yet the unintended consequences of Adams’s approval of the Alien and Sedition Acts didn’t keep later presidents from following his example of sacrificing liberty to order in times of national peril. Abraham Lincoln suspended habeas corpus during the Civil War; Woodrow Wilson approved a new Sedition Act during World War I; Franklin Roosevelt interned Japanese-Americans during World War II; George W. Bush signed the intrusive American Patriot Act following the terrorist attacks of September 2001.

Their actions didn’t hurt their popularity. Lincoln, Roosevelt and Bush were subsequently reelected. Wilson was already in his second term. Maybe Adams’s precedent had inoculated voters against a desire to punish presidents for controversial actions. Maybe later voters simply cared less about their liberties than the ones who ousted Adams.