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.”
Notably, Callender also blasted the Sedition Act itself, and Adams’s abuse of it: “The grand object of his administration has been . . . to calumniate and destroy every man who differs from his opinions.” The “simple act of writing a censure of government incurs the penalties, although the manuscript shall only be found locked up in your own desk,” noted Callender. Here, the Sedition Act did indeed approximate mind control, yet Adams apparently never shuddered to think about his own diary diatribes against Hutchinson and other governmental figures in the 1760s and 1770s. Finally, Callender, who showed more self-awareness than Adams on this point, connected his critique of the act to the very nature of the election-year pamphlet in which his more general critiques of Adams were appearing. The act made it virtually “impossible to discuss the merit of the candidates.” If a person proclaimed that he “prefer[red] Jefferson to Adams”—as Callender was of course doing in this very pamphlet—wouldn’t that itself be an actionable slur on Adams?
The Adams administration apparently agreed, and prosecuted Callender in the spring of 1800 for what today looks like a rather typical, if overstated, campaign tract.
Callender’s nine-month sentence drew the gaze of printers and readers across the continent, just as the Adams-Jefferson race was unfolding in a series of statewide contests for electoral votes. Alongside the conviction of Lyon, Callender’s case cast Adams in an unflattering light, as did other lower-profile cases. (One featured a Newark drunkard, Luther Baldwin, who made a crude joke about the president’s rear end.)
All told, the Adams administration initiated more than a dozen—indeed, one recent historian says many dozen—prosecutions under the Sedition Act and closely related legal theories. Some cases never came to trial but still captured attention. For example, the feisty printer of Philadelphia’s Aurora General Advertiser, Benjamin Franklin Bache, named for his famous printer-grandfather, died while under indictment—the victim of a yellow fever pandemic. The Aurora was a high-profile anti-administration paper published in an iconic city. Going after Bache was the eighteenth-century equivalent of a Republican president today seeking to imprison the editors of the Washington Post or a modern Democratic president aiming to criminalize the publishers of the National Review.
Indeed, Jefferson himself had had secretly financed Callender (a fact which only later came to light). If Callender was guilty, why not his accomplice Jefferson? So Adams’s policies were in fact the eighteenth century equivalent of, say, Donald Trump trying to imprison Joe Biden in 2020 for speaking ill of Trump and supporting others who did the same.
TWO SUPREME COURT JUSTICES riding circuit had sided with Adams, but America’s ultimate supreme court consists of the sovereign American people, who express themselves most consequentially via constitutional amendments and pivotal elections. The Adams-Jefferson contest was just such a pivotal election, and the court of public opinion ultimately sided with Jefferson and Madison, as has the court of history.
The biggest problem with the Sedition Act of 1798 was its self-sealing quality. Anyone in the press who harshly criticized this horrid law (such as Callender) risked prosecution under the law itself.
But each state legislature was a special speech spot. Even if newspapers risked prosecution under the Sedition Act if they initiated their own critiques of the act, or reprinted other newspapers’ critiques, surely they would enjoy absolute immunity if they merely told their readers what had been said in the special speech spots in state capitals. Thus, Madison and Jefferson quietly composed resolutions for adoption in the Virginia and Kentucky legislatures, respectively.
Madison was by far the abler constitutional theorist and practitioner, and his version has aged better than Jefferson’s. On Christmas Eve 1798, the Virginia General Assembly denounced the provisions of the Sedition Act as “palpable and alarming infractions of the Constitution.” That act, “more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”
Over the next six weeks, newspapers in most states reprinted or excerpted Virginia’s protest. In the short run, Madison and Jefferson did not succeed in getting other state legislatures to join the Virginia and Kentucky bandwagon. But in the end, it did not matter whether the two statesmen immediately convinced a majority of state lawmakers, just as it did not matter whether they immediately convinced a majority of sitting Supreme Court justices. What mattered most in 1800–1801 was winning a majority of Electoral College votes in the Jefferson-Adams slugfest.
And that Jefferson did. When the American people, having now seen quite clearly what freedom meant to Adams and what freedom meant to Jefferson, decided between these two icons of 1776, they decided for Jefferson.
BUT THERE WAS A CATCH, involving palace intrigue eerily similar to some of the strangest moments that would unfold in America 220 years later, in January 2021.
The backstory to this episode of palace intrigue and near mayhem in 1800–1801 began, fittingly enough, with the early 1790s rivalry between Jefferson and Hamilton. Who was truly Washington’s prime minister? In particular, who should succeed to the presidency if both Washington and Adams were to die, become disabled, or resign?
The Constitution’s Vacancy Clause left this question for the federal legislature to decide: “Congress may by Law . . . declar[e] what Officer shall then act as President.” The text authorized an ex officio designation—not who but what, not which person but “what Officer” qua officer would serve as acting president as part of his regular office. In 1791 Jefferson’s partisans in Congress, led by Madison, proposed to designate the secretary of state as the officer next in line, a move that would bolster the status of Thomas Jefferson (who then held that office) and deflate the pretentions of then Treasury Secretary Alexander Hamilton. Hamilton’s Congressional admirers balked. As a compromise, some proposed to designate the chief justice—a post then held by the Hamilton-leaning John Jay. After bouncing between House and Senate and various committees thereof, the bill as finally adopted in 1792 placed America’s top senator—the Senate president pro tempore—first in line, followed by the Speaker of the House.
Alas, this was unconstitutional. As Madison and others persuasively pointed out, senators and House members were not, strictly speaking, “officers” within the letter and spirit of the Constitution’s Vacancy Clause. Only judges and executive officials—those who acted upon private persons, and were not mere lawmakers—were proper “officers” for succession purposes. Indeed, Article I, section 6 expressly prohibited sitting congress members from holding executive or judicial office: “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”
All this set the scene for the post-election drama of 1800–1801. The Democratic Republicans won the election, with 73 electoral votes for Jefferson compared to 65 for Adams. But the fledgling party blundered, slightly.
Under the original Constitution, there was no separate balloting for the vice presidency. Rather, each member of the Electoral College cast two votes for president. The top vote-getter, if backed by a majority of Electors, would win the presidency, and whoever came in second in the presidential balloting would become vice president. The Democratic Republicans aimed to catapult Jefferson into the presidency and his running mate, New Yorker Aaron Burr, into the vice presidential slot, but every Jeffersonian Elector also voted for Burr. The party should have designated one Elector to throw away his second vote to ensure that Jefferson would outpoint Burr, but somehow failed to do this. Thus there was a tie at the top, a tie that would need to be untied by the lame-duck, Federalist-dominated House of Representatives.
The House could surely pick Jefferson—the only proper outcome, thought the Jeffersonians. Indeed, this is what the House ultimately did, thanks in no small measure to Hamilton’s emphatic appeals to Congressional Federalists on behalf of Jefferson. Hamilton told his correspondents that despite his own fierce feuds with Jefferson and the personal dislike that each man had for the other, the former secretary of state was an honorable and capable public servant committed to his country’s welfare. Once in power, Jefferson would, Hamilton hoped, eventually see the (Hamiltonian) light and govern in a way that would protect America’s vital interests at home and abroad. (Hamilton guessed right on this, in general.) Hamilton told his Federalist allies that Burr, by contrast, was a charming but corrupt wild card, who might sell the nation out to the highest bidder merely to line his own pocket.
Still, the Federalist-dominated Congress could lawfully pick Burr. Many Jeffersonians considered this scenario underhanded, because none of Burr’s Electors had truly wanted to see him president. From a legal point of view, however, Burr’s votes were no different from Jefferson’s. If Federalists actually preferred Burr, why shouldn’t he win as the consensus candidate? After all, had Federalist Electors known long in advance that Adams was a lost cause, they could have chosen to vote for Burr in the Electoral College balloting in the several states. Had even a single Federalist so voted, Burr in fact would have received more electoral votes than Jefferson, and thus would have won under the strict letter of the rules. How was the matter any different if Federalist House members opted to back Burr over Jefferson when allowed to untie the Electoral College tally? If this flipping of their ticket irked Jeffersonians, they had only themselves to blame for having picked Burr as their second man. After all, even if Burr were selected by the Federalist-dominated House, nothing would stop (President) Burr from resigning in favor of (Vice President) Jefferson. Easier still, nothing stopped Burr from publicly urging all House members to endorse Jefferson, mooting any need for post-inaugural heroics.
What if the House failed to pick either Jefferson or Burr? This sounded lawless, but it wasn’t, really. The Constitution required the House to untie the election under special voting rules reminiscent of the old Articles of Confederation. Each state delegation in the House would cast one vote, and the winner would need a majority of state delegations. If a state delegation were equally divided or abstained, its vote would count for zero, not one-half for each candidate. It was thus imaginable that neither Jefferson nor Burr would have an absolute majority of state-delegation votes in the House—nine out of sixteen—when Adams’s term expired at the end of March 3.
If so, could Adams simply hold over for a short period past his constitutionally allotted four years? For, say, a month? For a year? For four years? Or would the Succession Act spring to life when Adams’s term expired, allowing the Senate’s president pro tempore to become the president of all America? Even if that person were a Federalist? (The Federalists had a comfortable majority in the lame-duck Senate; the new Senate would be closely divided.) What about the argument that the Succession Act was in fact unconstitutional?
Enter “Horatius,” stage right. In a pair of newspaper essays initially published in early January 1801 in the Alexandria Advertiser and widely reprinted in both the capital area and beyond, the anonymous Horatius offered a cute way of untying the “Presidential Knot.” Horatius argued that the Succession Act was indeed unconstitutional. The lame-duck Congress should thus enact, and the lame-duck president, Adams, should sign, a new Succession Act designating a proper “officer” to take charge after March 3 in the event of a Jefferson-Burr House deadlock. Horatius did not explicitly state what officer should now fill the blank, but the obvious choice, legally and politically, for the lame-duck Federalists, was the secretary of state. After all, he was the highest-ranking officer, except for the arguable possibility of the treasury secretary and the chief justice. But the position of chief justice was vacant in early January. And although Horatius said none of this—he didn’t need to—the sitting secretary of state in early 1801 just happened to be the Federalists’ most popular and able politician: Jefferson’s old rival and first cousin, once removed, John Marshall.
It was an elegant and brilliant idea, a political and legal stroke of genius—evil genius, from a Jeffersonian perspective. But whose genius idea was it to crown John Marshall? Who was this Horatius? Most likely, according to modern scholars, John Marshall himself!
Even if Marshall was somehow not Horatius, Marshall surely agreed with Horatius. In mid-January 1801, James Monroe sent Jefferson a letter bristling with concern: “It is said here that Marshall has given an opinion in conversation …that in case 9 States should not unite in favor of one of the persons chosen [by the Electoral College—that is, Jefferson or Burr], the legislature may appoint a Presidt. till another election is made, & that intrigues are carrying on to place us in that situation.” In an earlier letter to Jefferson, Monroe had also identified Marshall as a likely beneficiary of the Horatius gambit: “Some strange reports are circulating here of the views of the federal party in the present desperate state of its affrs. It is said they are resolved to prevent the designation by the H. of Reps. of the person to be president, and that they mean to commit the power by a legislative act to John Marshall,. . . or some other person till another election.”
Jefferson responded by treating the situation as 1776 all over again, rallying his troops and rattling his saber. In mid-February 1801, he told Monroe that he “thought it best to declare openly & firmly, one & all, that the day such [a succession] act passed, the middle states would arm, & that no such usurpation even for a single day should be submitted to.” This was not casual chitchat. In 1801 Monroe was the sitting governor of Virginia, which of course bordered on the new national capital city. Jefferson was telling Monroe to ready his militia to march on Washington—with weapons—and Monroe was listening carefully.
Jefferson’s were the words of a sloppy, rash, and trigger-happy politico. What was his legal warrant for threatening to incite states near the national capital (“the middle states”) to take up arms against the central government? The Horatius gambit was surely sharp dealing, given that it aimed to give the presidency to neither Jefferson nor Burr, but how was it illegal? The Jeffersonians themselves had created the mess that Horatius slyly offered to tidy up. After all, Jefferson himself and his party had picked the ethically challenged Aaron Burr to be—under their own plan—a heartbeat away from the presidency.
If Burr were supremely honorable, he could simply declare, publicly and unequivocally, that he would not accept the presidency even if offered the post by the lame-duck Federalist-dominated House. Had Burr made such a clear and public declaration, it is impossible to imagine that the House could have deadlocked. Jefferson would have become president by process of elimination, much as if Burr were dead. (Imagine, say, an early 1801 duel in which Hamilton killed Burr!)
To his credit, Burr did not actively lobby in his own behalf. He did not hasten to Washington City to meet with House members, nor did he make any promises by letter or via intermediaries in exchange for House votes. But he did not, as he easily could have done, emphatically and openly disavow willingness to be selected over his senior partner.
Four years earlier, Jefferson had acted with more modesty when he had faced a remarkably similar situation. In mid-December 1796, he wrote a letter to his campaign manager, Madison, that ended up yielding enormous political dividends. If, upon the unsealing and counting of Electoral College ballots in early 1797, he and Adams ended up tied in the contest to succeed the retiring George Washington, thus obliging the House to break the tie, he wrote, “I pray you and authorize you fully to solicit on my behalf that Mr. Adams may be preferred. He has always been my senior from the commencement of our public life, and the expression of the public will being equal, this circumstance ought to give him the preference.” As events unfolded, Adams ended up with an outright majority over Jefferson in the Electoral College tally, rendering Jefferson’s sacrificial offer moot.
Adams himself learned of the letter and was charmed. (Jefferson, who had far more self-possession and politesse, generally knew how to play Adams—via professions of friendship and fulsome praise of the senior statesman’s early services to the republic.) In an exultant note to Abigail written on New Year’s Day, 1797, John regaled his wife with (imagined and inflated) details of Jefferson’s admiration and deference:
So many Compliments, so many old Anecdotes. . . . [Dr. Benjamin Rush] met Mr. Madison in the Street and ask’d him if he thought Mr. Jefferson would accept the Vice Presidency. Mr. Madison answered there was no doubt of that. Dr. Rush replied that he had heard some of his Friends doubt it. Madison took from his Pocket a Letter from Mr. Jefferson himself and gave it to the Dr. to read. In it he tells Mr. Madison that he had been told there was a Possibility of a Tie between Mr. Adams and himself. If this should happen says he, I beg of you, to Use all your Influence to procure for me [Jefferson] the Second Place, for Mr. Adams’s Services have been longer more constant and more important than mine, and Something more in the complimentary strain about Qualifications &c.
Perhaps Jefferson in late 1796 knew all along that Adams had more votes, and the letter to Madison was a brilliant ploy designed mainly to flatter Adams and put him off guard. (If so, it worked.) Or perhaps Jefferson meant everything he said (which was less than Adams recounted; the tale grew in the telling). Either way, it is notable that Aaron Burr did not follow in Jefferson’s deferential footsteps, even though Burr, in 1800–1801, had infinitely more reason to yield to his senior partner and teammate Jefferson than Jefferson in 1796 had to yield to his old friend, but now rival, Adams.
On Wednesday, February 11, 1801, Congress met in the new capital city of Washington in the District of Columbia to unseal the presidential ballots that had been cast by electors in the several states. Per the Constitution’s explicit provisions, the Senate’s presiding officer—that is, the incumbent vice president, Thomas Jefferson himself—chaired the proceedings. As expected, there was the tie at the top: 73 votes for Jefferson and 73 votes for Burr. The House immediately began balloting by state delegation. House rules said that the House “shall not adjourn until a choice be made.”
All through the night and the next morning, the House voted over and over, but neither Jefferson nor Burr could reach the requisite nine states (out of sixteen total). After twenty-eight continuous rounds of balloting, the exhausted legislators broke off shortly after noon on Thursday to get some sleep. Friday the 13th brought no resolution. Nor did Saturday. Still nothing when Congress reconvened on Monday the 16th. Adams’s term of office was due to expire on Tuesday, March 3—a mere fortnight away.
If the impasse continued, would Adams audaciously (illegally?) hold over past his allotted four years? Or would the lame-duck and electorally repudiated Federalist Congress in its final hours ram through a new Succession Act, à la Horatius, crowning Marshall ex officio as acting president, either in his capacity as secretary of state or in his new and additional role as America’s chief justice? (He was nominated for this post by President Adams on January 20 and confirmed by the Senate on January 27; he received his judicial commission on January 31 and took his judicial oath on February 4. Thus for the last month of the Adams administration, he wore both an executive and judicial hat.) If Adams or Marshall took steps to act as president on March 4, would Jeffersonian middle-state militias in Virginia and Pennsylvania respond with force as threatened? Would the self-proclaimed acting president Adams or Marshall counter with federal military force? Whom would the federal military salute? Would Federalist New England militias mobilize and march south? Would Hamilton try to jump into the fray? (In the late 1790s, he had been commissioned as a high general, second in command to George Washington, in anticipation of possible military conflict with France.) With the irreplaceable Washington no longer alive to calm the country and rally patriots from all sides to his unionist banner, would the American constitutional project ultimately collapse in an orgy of blood and recrimination, like so many Greek republics of old and the fledgling French republic of late?
These and other dreadful questions darkened the horizon in mid-February. And then, suddenly—as if a strong blast of fresh air abruptly swept across the capital city—the impasse ended. On the thirty-sixth ballot, on the afternoon of Tuesday, February 17, enough House members changed their minds to swing the election to Jefferson, by a vote of ten states to four, with the remaining two states professing neutrality. Most historians believe that Jefferson gave certain assurances to fence-sitting Federalists. Jefferson denied having made any promises, but he was a master wordsmith; his carefully crafted statements of intent (as distinct from promises) had sufficed. Thus, various Federalists crowned Jefferson with the expectation, confirmed by winks and nods from Jefferson and his authorized intermediaries, that he would govern as a moderate.
ON MARCH 4, 1801, America’s new chief justice administered the presidential oath of office to his rival and kinsman to complete the nation’s first peaceful (?) transfer of power. Adams was not there to witness the event. Earlier that day, he had left the capital city on a coach bound for his family homestead, brooding about what might have been.