The Perpetuation of our Political Institutions, Part X: The Lincoln Fallacy, contd

    Notwithstanding the various misapprehensions which Abraham Lincoln gave voice to during his speech to the Young Men’s Lyceum in Springfield, Illinois in January of 1838 – specifically concerning the social forces which he believed had previously bound the American republic together – the course of action which he suggested might help stem the rising tide of vigilante behavior in the contemporary United States was especially troubling in light of certain facts on the ground. To Lincoln’s thinking, the lynching, rioting, and extra-judicial killing that had become a relatively common feature of life in the American republic in the early-19^th century were all the result of a series of developments whose effects on the behavior of the American people had markedly increased in the years that followed the conclusion of the War of 1812. For one thing, the settlement of the various issues that had initially spurred that same conflict helped to inaugurate an era of peaceful co-existence between the United States and the United Kingdom. Having previously been either an inveterate enemy of the American republic or a concerted rival, the resolution of certain lingering commercial and diplomatic disagreements by way of the Treaty of Ghent (1815) allowed the UK to slide into the role of cautious collaborator over the course of the 1820s and 1830s. But while this most definitely represented a positive development for American commerce and allowed subsequent American governments to significantly reduce defense spending, Lincoln believed that the loss of a common British foe boded ill for the American people more broadly. Without a shared source of fear and anxiety to keep otherwise ambitious individuals from pursuing their self-interest at the behest of their fellow countrymen, how was American society supposed to hold itself together?

    And then, of course, there was the matter of the Founders. Between the 1770s and the 1820s, the same broad set of soldiers, scholars, lawyers, and statesmen had held most of the major political offices in the nascent American republic at both the state and federal level. What this meant, in essence, was that many of the same men who had signed the Declaration of Independence also helped to draft the Constitution, and led many of the state governments, and occupied many of the most power federal offices, and helped guide the country into a second war with Great Britain, all over the course of about fifty years. By the end of the 1820s, it would indeed have been fair to observe that the United States had been principally shaped by a relatively small group of public servants whose perspectives and principles were accordingly treated with an outsized degree of respect and deference by the inhabitants thereof. The American people had in large part come to think of the Founders as profoundly inspirational figures and had modeled many of their own behaviors and opinions on these semi-sacred personages. But while this, in Lincoln’s opinion, was to the benefit of the American republic – being that it served to bind the American people to a course of selflessness and public service – it was also, ultimately, doomed to failure. Regardless of the reverence in which the Founders were held, they were still just human beings. They grew old, they retired, and eventually they died. And as they died, Lincoln poetically observed, the great pillars of the temple of liberty began to crack, and crumble, and ultimately to collapse. Without these transcendent figures to hold their fellow citizens to account, why should the American people have given the slightest thought to the general public good?

    This, as aforementioned, is where Lincoln offered his solution. If, as he suspected, the rise in vigilante behavior that had taken place in the United States since roughly the turn of the 19^th century was due in large part to the loss of certain unifying forces – be they common enemies or collective inspirations – then clearly some new manner of binding agent was wanted. But while Lincoln’s suggestion to that end was a simple one on its face – i.e., that every American, “Swear by the blood of the Revolution never to violate in the least particular the laws of the country, and never to tolerate their violation by others” – it carried with it some exceptionally problematic implications. He seemed to anticipate this to some extent, avowing as he did that there were indeed such things as bad laws. But his addendum to this admission showed either a profound ignorance of some of the prevailing political issues of the day or a stunning lack of imagination as to the morally questionable goals towards which legitimate power might conceivably be bent. “Although bad laws,” said Lincoln, “If they exist, should be repealed as soon as possible, still, while they continue in force, for the sake of example they should be religiously observed.” Without even venturing outside the confines of Lincoln’s native Midwest, one might find a number of examples from the same period in which he delivered his celebrated speech of the kinds of reprehensible outcomes one might become party to by treating every law on the books with a quality of religious observance. Consider, by way of example, the events that were at that moment unfolding in a neighboring community.  

    On the far side of the Mississippi River from Lincoln’s adopted home in Illinois – as has been established in a previous entry in the present series – lay the state of Missouri, the governor of which, at the time that Lincoln was addressing the Young Men’s Lyceum in Springfield, was a man named Lilburn Boggs (1796-1860). Boggs was a Democrat, of course, being a Southerner originally from Lexington, Kentucky, who had climbed through the ranks of Missouri politics over the course of the 1820s as first a state senator and then as Lieutenant Governor. Under different circumstances, Boggs might have enjoyed a long and fruitful public career in state or even national politics. But as it happened in fact, both his term in office and that of his predecessor, fellow Democrat Daniel Dunklin (1790-1844), were almost wholly defined by the arrival and activities of a community of Christian dissenters known colloquially as the Mormons. Formally designated as the Church of Christ, Mormonism was a religious movement that arose out of the revivalism of the Second Great Awakening (1790-1840) and was based on the claimed revelations of a young Vermont native named Joseph Smith (1805-1844). While residing with his family in upstate New York – a hotbed of evangelical religious fervor during the early decades of the 19^th century – Smith purportedly experiences a series of visions which led him to transcribe a kind of neo-Christian liturgy which was published in 1830 under the title “The Book of Mormon.”

    Without delving into the exact tenets thereof, it will here suffice to say that those who accepted the veracity of the Book and acclaimed Smith as their prophet grew swiftly in number as the congregation began its migration westward in search of the site where it would build its so-called “New Jerusalem.” In Colesville, Palmyra, and Fayette, New York, the Mormons established their first small communities not long after the Book was published. In Kirtland, Ohio in 1831, they absorbed a group of Restorationist Christians led by a preacher named Sidney Rigdon (1793-1876) and adopted a form of communalism known as the “United Order.” And by 1832, pursuant to several visits by Smith himself, they had settled on the hamlet of Independence, Missouri as the center of their prophesied city of Zion. In part, this steady movement was representative of Smith’s ongoing revelations. That is to say, his understanding of the Church of Christ’s mission and purpose was subject to frequent reconsideration. But the arrival of the Mormon in the state of Missouri was also very much the result of their having aroused the ire of their hosts and neighbors wherever they had previously happened to settle. As the congregation expanded during its period of residence in Ohio, for example, Smith and his followers became embroiled in a series of internal disputes, financial misadventures, and local disagreements, none of which did much to polish the community’s reputation. Ohioans came to distrust the Mormon’s communitarian social values and grew suspicious of the political power which their growing numbers portended. Then, when Smith’s attempt to found a local lending organization – the Kirtland Safety Society Anti-Banking Company – failed spectacularly due to over-capitalization, debt collectors came calling and Smith was charged by state authorities with having committed bank fraud. Having by that point abandoned Independence as the site of New Jerusalem – mostly due to the poor reception the Mormon settlers in Jackson County had received from the locals – Smith instead led his followers out of Ohio to the town of Far West, Missouri. There, at long last, they would build their prophesied city.

    It was at this point, as 1837 gave way to 1838, that the first stirrings of the so-called “Missouri Mormon War” really made themselves known. As aforementioned, the Church of Christ had previously tried to settle in the Jackson County hamlet of Independence, the result of which was a series of conflicts with local residents leading to the violent expulsion of the newcomers in the autumn of 1833. When the dispossessed Mormons then attempted to re-establish themselves in nearby Clay County, a local legislator sought to stave off yet another cycle of inter-communal violence by pushing a compromise through the Missouri General Assembly essentially granted the newcomers a new county all to themselves. Caldwell County, as the jurisdiction became known, was already the site of limited Mormon settlement, and it seemed a fairly straightforward proposition to simply shift all future migrations efforts towards that sparsely populated region. But while this arrangement did succeed in tamping down on local hostilities for the better part of two years, the departure of the main body of the Church of Christ out of Ohio at the beginning of 1838 had the ultimate effect of shattering this fragile peace. Not only did hundreds of Mormons departing from Kirtland flock to their Caldwell Country headquarters at Far West, but a number of them attempted to establish additional settlements in neighboring Daviess County and Carroll County. Stung by what appeared to be the newcomers’ blatant disregard for the terms of the previously established compromise, local residents began once more agitating for the expulsion of the Mormons from Missouri.

    While they could hardly have been described as being particularly charitable in their attitudes towards the incoming members of the Church of Christ, the Missourians who sought the former’s removal over the course of the 1830s did not do so for entirely inexplicable reasons. The fact that the Mormons believed – pursuant to one of Smith’s revelations – that their righteous behavior would permit them to take possession of the property of non-believers did little to smooth over relations between the them and their newfound neighbors. Nor did the fact that Missouri was a slave state while most Mormons came from jurisdictions where slavery was illegal. Nor did the fundamental Mormon belief that Native Americans were the descendants of a lost tribe of Israelites who were accordingly to be treated as moral and spiritual equals. And then, of course, there was the simple fact of their numbers. For practical reasons as much as out of any sense of piety, Mormons tended to settle together, trade together, and generally to act in close consort and unity. Depending on the nature of the community in which they settled, therefore, their presence might very easily come to dominate local affairs. Without much effort, they could conceivably swing elections, take over local political offices, and start to re-write local laws, all while taking firm hold of the regional economy. It was not clear that the Mormons were particularly interested in doing any of these things, of course, or that their intentions went much beyond converting non-believers to their faith, but such was the nature of contemporary American society. In the midst of a culture that increasingly lionized the so-called “rugged individual” and was deeply enmeshed with the social biases of mainstream Protestant Christianity, a community of close-knit religious dissenters like the Church of Christ were unlikely to ever be granted the benefit of the doubt.

    This isn’t to say, mind you, that the Mormons’ behavior was unimpeachable. By the time Smith and his followers arrived in Far West, years of rough treatment at the hands of their fellow Americans had arguably served to sharpen their sense of social cohesion to a keen, cutting edge. Unwilling to be manhandled any further by those who failed to understand the nature of their mission – and plagued, increasingly, by internal dissent – Mormon leaders like Sampson Avard (1800-1869) and the aforementioned Sidney Rigdon accordingly began to advocate a program of armed self-defense and retributive justice whereby all those who either attacked the Church of Christ from without or threatened it unity from within were to be treated as its unreconcilable enemies. Speaking to that end on two prominent occasions in the summer of 1838, Rigdon first compared those Church of Christ members who questioned his or Smith’s leadership to salt that had, “Lost its savor [and] is thenceforth good for nothing, but to be cast out, and to be trodden under foot of men.” Then, preaching some weeks later on the subject of the Mormon’s external adversaries, he famously declared that if such mobs as had harassed them in Kirtland and in Jackson County persisted in their efforts to drive them away from their homes, 

It shall be between us and them a war of extermination; for we will follow them until the last drop of their blood is spilled; or else they will have to exterminate us, for we will carry the seat of war to their own houses and their own families, and one party or the other shall be utterly destroyed.

Seemingly in response to these bloody-minded exhortations, the aforementioned Avard then formed a secret society in June of 1838 known formally as “the Danites” and informally as the “Destroying Angels,” the original purpose of which was to persecute and expel dissenters. But while at first their activities were aimed at this principal objective – to the end of which they published a manifesto threatening those they perceived as disloyal with a “fatal calamity” if they did not mend their ways or else depart from Caldwell County – they soon enough became embroiled in a kind of armed vendetta with the state and people of Missouri.

    Hostilities escalated slowly but surely. On August 6^th, in response to a declaration by a candidate for state assembly that the Mormons should not be permitted to gain a political foothold in the state, a group of Missourians gathered in the Daviess County seat of Gallatin on election day with the intent of blocking members of the Church of Christ from casting their votes. When some thirty Mormons eventually arrived, denounced the remarks of the aforesaid candidate, and declared their intention to vote, a fight broke out during which one of the Mormons supposedly rallied his confederates by crying out, “Oh yes, you Danites, here is a job for us!” While this apparently shifted the battle in the Mormon’s favor for a time, causing the Missourians to depart with a promise to return with arms in tow, things thereafter rather quickly fizzled out. The Mormons dispersed and returned to their homes, the Missourians followed suit, and the worst that ultimately happened was that rumors began to fly. Smith and his inner circle attempted to sort out the facts from the fictions by visiting various Daviess County officials – often accompanied by armed supporters – and asking them to swear that they had no intentions towards further violence, but this almost certainly did more harm than good. Local attitudes towards the Church of Christ, already farm from warm, steadily worsened as the summer wore on.

    On the same day as the encounter at Gallatin, a question was placed on the ballot in nearby Carroll County as to whether or not a group of Mormons should have been allowed to settle in the otherwise vacant community of Dewitt. When it unsurprisingly passed in the majority, a committee was established for the purpose of informing the newcomers that they were no longer welcome and seeing to their immediate removal. The Mormons naturally refused, citing their rights as American citizens to live wherever they wished, and the Carroll County committee accordingly reached out to neighboring communities asking for their aid in performing the necessary expulsion. The result, by September 20^th, was the arrival in Dewitt of a group of one hundred and fifty armed Missourians who demanded, in no uncertain terms, that the Mormons abandon the premises within the span of ten days. When the Mormons again refused to be bullied, the vigilantes returned on October 1^st to begin laying siege to the settlement. Buildings were burned, livestock was slaughtered, and a call for aid from the Mormons to Governor Boggs was met with a decidedly lukewarm response. The conflict in question, said Boggs, was between the Church of Christ and its neighbors and was better off settled between the two interested parties. On October 11^th, the Mormons finally agreed to depart to Caldwell County, thus abandoning Dewitt and admitting their defeat at the hands of the mob.

    Notwithstanding this seeming victory at Dewitt, however, certain Missourians were as yet unsatisfied that the “Mormon Menace” had been entirely dealt with. A force was accordingly organized on the part of certain parties in Carroll County for the purpose of marching into Daviess County and driving the Mormons from that jurisdiction as well. When news of this development reached Caldwell County, the reaction on the part of the Church of Christ community was understandably far from resigned. Though militia officials from neighboring Clay County attempted to advise the Mormons that their own Caldwell County forces were not legally permitted to travel into and operate within Daviess County under any circumstances – and that Mormons travelling in the latter jurisdiction should therefore do so in small numbers and unarmed – a local Mormon judge named Higby nevertheless called out the militia in Far West and authorized them to defend their fellow congregants. Joined by a contingent of Danites, the Caldwell County militia thereafter entered Daviess County on October 18^th and proceeded to burn and pillage whatever communities they happened to come across. The county seat at Gallatin was gutted almost completely while Millport and Grindstone Fork were each plundered and severely burned. Some hundred Missourians were forced from their homes to seek refuge in nearby counties while the same fate befell those Daviess County Mormons who were subsequently attacked by their neighbors in retribution. But while not every member of the Church of Christ held to the justice of this outcome – to the point that two members of its leading body, the Quorum of the Twelve Apostles, actually left the organization and swore affidavits as to the events in Daviess Country – the bulk of the congregation remained unrepentant and steadfast.

    Matters came to something of a head in the waning days of October. The residents of Ray County, it seemed – which was immediately south of Caldwell County – had been watching the events of the summer unfold with mounting dread and trepidation. Not only had a group of dissenting Mormons who settled in the community of Richmond attested to the fact that their expulsion from the Church of Christ had been exceptionally acrimonious and violent, but the brawl at Gallatin, the sacking of Daviess County, and the swearing of the aforementioned affidavits had made it substantially clear that Ray County would be far from safe in the event that the Mormons turned their ire upon its inhabitants. The result, near the end of October, was the summoning of a militia company to a sparsely uninhabited area between Ray and Caldwell counties known as Buncombe’s Strip for the purpose of acting as a buffer against further Mormon aggression. Under the command of one Captain Samuel Bogart – who had previously participated in anti-Mormon violence in Carroll County – this detachment initially proceeded to accost and disarm any Mormons they found living in northern Ray County. Eventually, however – knowingly or otherwise – they strayed into southern Caldwell County and continued their campaign of harassment. When reports of these activities reached Far West, the disarmament had become a hostage-taking and the danger of execution was imminent. A rescue party was formed under David W. Patten (1799-1838), another of the Quorum of the Twelve Apostles, and the group arrived at Bogart’s camp on the night of October 24^th.

    Since memorialized as “the Battle of Crooked River,” the encounter between Patten’s forces and Bogart’s was practically little more than a skirmish. Bogart’s command consisted of a single militia company – between eighty and two hundred men – Patten’s of an unknown number. A single member of the Missouri militia was killed while the Mormons suffered fully three such casualties themselves. Granted, one of the Church of Christ members killed was the aforementioned David Patten, the loss of which represented a significant blow to the congregation’s morale. And it was true that the Missouri militia forces had been successfully driven off. But the real effects of the engagement were more perceptual than practical. By the time news of the skirmish reached the ears of Governor Boggs in Jefferson City, the details made it out to be something more like a massacre. Boggs had previously lived in Jackson County, as it happened, and had witnessed firsthand the peculiarities of Mormon culture during the aforementioned conflict over their presence in Independence. And while he had previously been content to allow the county militias and the Mormons to arrive at some manner of compromise on their own, the events at Crooked River – and quite probably certain reported accounts of Rigdon’s speeches during the summer – finally spurred him to take final and decisive action. To that end, on October 27, 1838, he issued Missouri Executive Order 44.

    Up to this point, it would seem more than fair to say, almost no one involved in the Missouri Mormon War had behaved themselves in a manner which a young Abraham Lincoln would have found to be at all acceptable. In the absence of either a common British enemy, recall, or the stabilizing influence of the Founders, it was his belief that the most likely means of ensuring the continued cohesion of the American republic was for every citizen thereof to make a scrupulous observance of the laws of the land. The Missourians had most certainly failed to meet this standard. Not only had they illegally hounded the Mormons out of Jackson County and Clay County and attempted to rob them of their right to vote in Daviess County, but they’d even gone so far as to lay siege to the Mormon community in Carroll County, all in blatant violation of the laws and the Constitution of Missouri. And at the same time, while the membership of the Church of Christ had certainly appeared to migrate into the Show Me State with entirely peaceful intentions, the manner in which they chose to react to the abuses frequently heaped upon them by their neighbors were no less unlawful in practice. They assaulted the citizens of Gallatin who attempted to prevent them from casting their votes on Election Day, pillaged a number of communities in Daviess County, and then attacked an authorized detachment of the Missouri militia at the Battle of Crooked River. From a purely moral standpoint, the Mormons absolutely had the right to defend themselves from harassment when their lives were under threat and their homes were to be destroyed. But from the perspective of the law – just or unjust, good or bad – they were in violation of the statutes of the jurisdiction in which they had chosen to reside. By the terms of Lincoln’s declaration made the previous January in Springfield, such behavior, under whatever circumstances, was fundamentally unacceptable. “There is no grievance [,]” he said, “That is a fit object of redress by mob law.”

    An executive order, of course, could hardly be said to qualify as an expression of “mob law,” so to speak. Lilburn Boggs was not some county official acting well outside his remit or a militia officer who had decided to take matters into his own hands. He was the Governor of Missouri, duly elected by the people thereof and duly enjoined to act as, “Conservator of the peace [.]” And while the Missouri Constitution had nothing specific to say as to the nature and validity of a so-called “executive order,” it had nevertheless become part of the common understanding of republican government in America by the end of the 1830s that chief executives indeed possessed the authority to issue such directives as they felt were necessary to meet the needs of a given situation. There were limits to this power, to be sure, between judicial review and legislative invalidation, but until such time as they could be conclusively declared unenforceable or improper, such orders still carried the full force of law. Missouri Executive Order 44, therefore, while it may later have been demonstrated to be in violation of the state constitution, in the meantime represented an institutionally legitimate exercise of the executive authority of the office of Governor. This is a point worth making emphatically because of what the text of the order declared. As written by Boggs himself in his role as Commander-in-Chief of the state of Missouri, the Mormons were stated to be, “In the attitude of an open and avowed defiance of the laws, and of having made war upon the people of this state.” In consequence, the Governor continued, addressing the commander the state militia,

Your orders are […] to hasten your operation with all possible speed. The Mormons must be treated as enemies, and must be exterminated or driven from the state if necessary for the public peace—their outrages are beyond all description. If you can increase your force, you are authorized to do so to any extent you may consider necessary.

    It cannot be overstated what a horrifying abuse of power such an order represented. The Mormons who had taken up residence in the state of Missouri over the course of the 1830s had not been convicted of any crime under the laws of that state. They had not been arrested, or tried, or found guilty, or sentenced to death, and nor was Governor Boggs attempting to set such events in motion. On the contrary, he was summarily ordering that the Mormons be “exterminated” or else driven from the state. Plainly, the office of Governor possessed no such authority. As stated in the Missouri Declaration of Rights,

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences […] No preference can ever be given by law to any sect or mode of worship […] No private property ought to be taken or applied to public use without just compensation [and] The accused cannot […] be deprived of life, liberty, or property, but by the judgment of his peers or the law of the land.

But while Boggs was undeniably guilty of ordering the state militia to violate all of these provisions, the people of Missouri would similarly have been guilty of violating the laws of that state by denying the validity of the order while it still remained in force. They would have been right to do so, unquestionably, but such actions would have also been demonstrably illegal.

    This, at long last, gets to the fundamental flaw in Abraham Lincoln’s aforementioned argument. “Although bad laws,” he said, “If they exist, should be repealed as soon as possible, still, while they continue in force, for the sake of example they should be religiously observed.” By this logic, in order to avoid further degrading the rule of law – and in so doing prevent the United States from ceasing to exist – the officers of the Missouri militia should have either driven every Mormon out of the state or killed them all without trial or reprieve. The Governor, their commander-in-chief, had ordered them to do so. And while they could have refused, on moral grounds, to commit such heinous actions, this would absolutely have made them guilty of insubordination. Would it have pleased Lincoln to learn that the officers had avoided such a fate? Would he have nodded in satisfaction when told that the men of the Missouri militia had consented to observe a bad law because it still remained in force? One certainly hopes not, given what such an outcome would have involved. But what did this mean, then, for Lincoln’s purported solution to the central problem facing American republicanism? If it meant preserving the United States from gradual disintegration, was it acceptable that sometimes people might be forced to suffer and die unjustly?  

    The Mormons, for the record, were indeed expelled from Missouri. And while bloodshed, fortunately, was kept to a minimum, the notable exception was the so-called “Haun’s Mill Massacre.” A group of Mormon dissenters, it seemed, having fled into Livingston County, reported to local authorities that a Mormon raiding party was then being formed for the purpose of essentially repeating the aforementioned depredations that had previously taken place in Daviess County. Aiming to prevent such an occurrence, a detachment of the Livingston County militia accordingly set off for the Mormon settlement of Haun’s Mill in neighboring Caldwell County. When they arrived on October 30^th, the two hundred and fifty Missourians found a community that had been almost entirely deserted save for a group of about twenty armed men and boys who had taken shelter in the local blacksmith’s shop. In the exchange of fire that followed – which lasted in total for between thirty and sixty minutes – four of the attacking Missourians were injured and seventeen Mormons were killed. One man who tried to flee the blacksmith’s and surrender to the Missourians was cut down were he stood. Several of the dead were children. And while it remains unclear whether or not the militiamen had yet been informed of the terms of Boggs’ executive order – some firsthand accounts have the Missourians claiming to be acting on the authority of the Governor, others present no such evidence – what is certain is the degree to which such anti-Mormon violence had come to enjoy de-facto legal acceptance. While the victims of the Haun’s Mill Massacre were hastily buried in a shallow grave and the survivors chased off to Far West, not one of the perpetrators was charged with so much as a misdemeanor.

    The commander of the Missouri State militia, of course, was acutely aware of what Governor Boggs had in mind. John Bullock Clark (1802-1885) had been its intended recipient, after all, and so it fell to him to see that its terms were faithfully executed. This he did by authorizing a siege of Far West, the result of which, on November 1^st, was the surrender of the community, the liquidation of its assets, and the arrest and trial of Joseph Smith and his closest followers. Addressing the captive Mormons upon his arrival on the scene, Clark notably referenced Boggs’ aforementioned directive. “The order of the governor was to me,” he said,

That you should be exterminated, and not allowed to remain in the state; and had not your leaders been given up, and the terms of this treaty complied with, your families before this time would have been destroyed, and your houses in ashes. There is a discretionary power vested in my hands, which concerning your circumstances I will exercise for a season.

It once more bears emphasizing how abhorrent this situation truly was. As far as Clark was concerned – and as far as the law agreed with him – he was simply fulfilling his duty as an officer of the state militia. The Governor, his commander-in-chief, had ordered him to either expel the Mormons or exterminate them, and so he was intent on accomplishing one or the other. Granted, the membership of the Church of Christ had not been slaughtered to the last man while Clark looked on impassively, but his statement also makes it clear that he would have been prepared to order exactly that if the individuals in question had opted not to cooperate. “There is a discretionary power vested in my hands,” he said, and this is an absolutely horrifying notion. The Governor had given him an ostensibly legal order and so he was directing an ostensibly legal proceeding. But it would have been just as legal had he killed them all himself. The Mormons were not fugitives in any technical sense, nor criminals who had been tried and sentenced to death or to exile, but the authority of Governor Boggs had rendered their execution permissible.

    Joseph Smith eventually escaped from imprisonment in the spring of 1839, whereupon he led the remainder of his followers east into Illinois where they founded the city of Nauvoo. They would be forced out of that state as well, of course, and at long last would find their final refuge in an otherwise uninhabited stretch of desert in what used to be northern Mexico. Many of them would die along the way to their promised land, including Smith himself in 1844, and the resulting territory would not achieve statehood– and thus voting representation in Congress – until almost the dawn of the 20^th century. But while Governor Boggs might be said to have fared little better himself – between an assassination attempt in 1842, self-imposed exile to California in 1846, and a largely unremarked death in 1860 – there remains a fundamental difference between how the two parties fared. While Boggs’ reputation may have suffered for his treatment of the Mormons, no one within the contemporary Missouri political establishment offered a concerted challenged to his declaration that the Mormons should have been expelled or exterminated. Indeed, the order in question was not formally invalidated until 1976. Boggs eventually left Missouri, it was true, and even ventured west like the Mormons in search of more hospitable climes. But whereas he did so by choice, in full possession of his life and property, the congregation of the Church of Christ did so with little more in their possession than the hope that they might someday find someplace where they would be allowed to live in peace. Was this a just outcome? Under no circumstances. But it was, by the standards of the time, an entirely legal one, for all the good that the likes of Abraham Lincoln might have claimed it did for the American republic at large.

The Perpetuation of our Political Institutions, Part IX: The Lincoln Fallacy, contd

    As a final refutation of what Abraham Lincoln characterized, circa 1838, as the wholly benevolent and stabilizing influence of the American Founders, consider one of the most famous acts of the presidency of the aforementioned Thomas Jefferson. In 1803, pursuant to negotiations that had been first initiated in 1801, the Jefferson administration completed the purchase by the United States from France of the territory known as Louisiana. Having initially sought only to make an offer for the valuable port city of New Orleans – a settlement which had become increasingly important to the economic livelihood of countless communities in the American West – the acquisition of the entire inland region represented something of a diplomatic coup on the part of Jefferson’s chosen envoys and marked the single largest expansion of American territory in the nation’s short history. There was just one problem. The asking price, some fifteen million dollars, was hardly pocket change, though the Democratic-Republicans in Congress would surely find a way to pay it. And while the prospect of a nation as small and as young as the United States essentially doubling in size overnight presented any number of logistical challenges, Thomas Jefferson would have been among the last people to shy away from such an ambitious and potentially rewarding project. No, the real issue was that it wasn’t entirely clear whether or not the purchase and the annexation themselves were strictly constitutional.

    Louisiana, for the record, had been a source of consternation and concern for the United States of America almost since that nation’s inception in the middle of the 1770s. Founded as a district of the France’s North American colonial empire in 1682, it was transferred to Spain in 1769 in the aftermath of the Seven Years War (1754-1763) and became one of the American republic’s nearest neighbors upon the latter’s independence from Great Britain in 1783. Occupying essentially the entire west bank of the Mississippi River between the Great Lakes and the Gulf of Mexico, Spanish Luisiana represented the furthest limit of American settlement in the continental interior for a generation and a persistent barrier against unfettered American commerce in the West. The Spanish, while eager to establish stable trade relations with the nascent United States, were nonetheless acutely conscious of the advantage which their continued possession of Louisiana in general and New Orleans in particular granted them. Spanish authorities in the 1780s accordingly set about leveraging these advantages for the purpose of keeping the American republic in a distinctly subordinate position.

    When it came to transporting their produce to market, American communities located along the east bank of the Mississippi had virtually no choice but to avail themselves of that selfsame waterway and to store their good at New Orleans until such time as they could be sold. Bearing this in mind – and doubtless keenly aware that American commerce on the Mississippi looked as though it was going to eclipse Spanish commerce by the beginning of the next century – Spain determined to close New Orleans to American trade in 1784 in an attempt to secure more favorable terms of trade. The resulting Jay-Gardoqui Treaty (1786), which sought to exchange twenty-five years of exclusive Spanish navigation on the Mississippi for American access to Spanish ports in Europe and the West Indies, was unsurprisingly rejected by those delegates to the Continental Congress who perceived in its terms a transparent Spanish attempt to choke off the viability of the various communities on America’s western frontier. It wasn’t until the later ratification of the Treaty of San Lorenzo (1795) that American privileges on the Mississippi were finally restored, and even then, the issue at hand remained largely unresolved. American settlement in the West was increasing at a fairly stunning pace over the course of the 1780s and 1790s, and it made little sense for the region’s only major international port to remain in foreign hands.

    The validity of this concern was amply proven out as the 18^th century gave way to the 19^th century. While the Treaty of San Lorenzo restored American rights on the Mississippi in 1795, the treaty was revoked by Spain in 1798 and then restored again in 1801. And in the meantime, in 1800, the Spanish agreed to return the whole of Louisiana to the French in return for a renewal of the Franco-Spanish alliance and certain territorial concession in Italy. Spain, it seemed, had grown weary of continually fielding complaints from either American settlers on its North American borders or the American government in Washington and was additionally suffering under the negative economic effects of an ongoing British blockade of its South American sugar and silver trade. And at the same time France, under the leadership of First Consul Napoleon Bonaparte (1769-1821), was eager to resurrect its former empire in the Americas. The result was the Treaty of San Ildefonso (1800), under the terms of which Spain would continue to administer Louisiana until such time as France could take formal possession. When this finally occurred in 1802, the United States accordingly found itself in the exceptionally undesirable position of having traded an obnoxious but gradually weakening neighbor in Spain for an aggressive and avowedly expansionist neighbor in France. A concurrent French campaign to retake the island sugar colony of Sainte-Domingue amidst an ongoing slave revolt only sharpened American concerns. If France really did intend to maintain a permanent presence in the West Indies, the Jefferson administration concluded, then the staple goods produced by the territory of Louisiana would become more important to its ambitions than ever. The only solution, as far as American authorities were concerned, was to make a territorial bid of their own.

    The resulting negotiations, as aforementioned, went far better then either the American envoys or the Jefferson administration could possibly have hoped. The American delegation, led by James Monroe, had been authorized to offer the French the sum of ten million dollars in exchange for allowing the American annexation of the city of New Orleans. With a permanent port at the mouth of the Mississippi, the United States would no longer be forced to abide by the terms of foreign powers when it came to the economic prospects of its western territories and would even have been in the position to collect substantial revenues on foreign commerce. Whether the French would have permitted such a sale remains largely uncertain, however. Without New Orleans, the remaining territory in Louisiana might not have been nearly as useful to France’s North American ambitions. Nor would it likely have struck Napoleon as particularly advantageous to place himself and his government in anything like a subordinate position to the United States of America in terms of navigation and commerce rights on the Mississippi River. As it happened, of course, none of these potential concerns ever came up. The French expedition to Sainte-Domingue was more or less doomed to failure by the beginning of 1803. The commanding general, Charles Leclerc (1772-1802) died of yellow fever the previous November, as did some thirty thousand of the men under his command. Locally recruited black troops had begun to desert in droves during the late summer of 1802, and by that October the French had lost fully two thirds of their manpower and nearly all of their will to fight. Napoleon’s New World ambitions thus decisively dashed, Louisiana no longer seemed to offer him any particular logistical advantage. Against the wishes of his foreign minister, the aforementioned Talleyrand, he according made it plain to his diplomatic envoys that he would willingly part with the whole of Louisiana if the Americans were willing to pay.

    They were, naturally, though the price was higher than they’d originally intended. Still, Monroe and his confederate, Robert Livingston (1746-1813), were sure that both the President the Senate would ultimately approve the deal. And more to the point, if they hesitated and Napoleon withdrew the offer, New Orleans on its own might no longer be on the table. So the American envoys signed the purchase treaty on April 30^th, 1803, the effects of which were publicly announced in the United States, fittingly, on July 4^th. But as the terms of the treaty were not to take hold until October, there remained several months in the interim during which the implications thereof could be freely discussed by the American public as the Senate worked its way towards a formal ratification. As the Democratic-Republicans possessed an overwhelming majority in the upper house of Congress, there was virtually no chance that the purchase would not be duly authorized. This fact did not stop certain figures within the Jefferson administration, in Congress, and among the opposition Federalists from voicing either their wholesale objections to the acquisition of Louisiana or their philosophical concerns with the manner by which it was to be done, however. The criticisms of the Federalists were typically partisan, avowing as they did that Jefferson’s stated belief in a strict construction of the Constitution should have prevented him from so boldly claiming the authority to annex otherwise foreign territory. Indeed, they charged, had Alexander Hamilton made the exact same proposal during the Washington administration, Jefferson would surely been among the most ardent voices to speak against it.

    Opposition to the Louisiana Purchase from within the Democratic-Republican party was naturally of a somewhat more nuanced character. Some of Jefferson’s fellow Partisans, it was true, were against the project in any form, feeling as they did that such a vast expansion of American territory was bound to be accompanied by a similar expansion of the power of the national government. A territory as large as Louisiana – and as full of free people of color, Frenchmen, and Spaniards – would surely be unable to government itself in the immediate, even accepting the fact that certain portions were likely to be carved off fairly quickly and fashioned into states. Large swaths of the purchased territory would accordingly need to be administered directly by the national government. The result would be the inevitable creation of any number of federal offices – from territorial governors and secretaries to tax collectors and law officers – any one of which might conceivably exercise more power within its particular sphere than most popularly-elected officials. Rampant patronage was bound to be one result; corruption was likely to be another. The individual who articulated this position most vociferously, one John Randolph of Roanoke (1773-1833), was unfortunately also bereft of any means to obstruct the purchase itself. As one of the Democratic-Republican leaders in the House, he undeniably wielded significant influence both within his own party and within the lower chamber of the United States Congress. But as the ratification of treaties fell strictly to the Senate, Randolph could do little more than complain in the hopes that someone would heed him.

    The most significant threat to the ratification of the Louisiana Purchase, as it happened, actually came from within the Jefferson administration itself. Indeed, it came from its leader and namesake. Jefferson, to be sure, had no particular objections to the principle of expanding American territory, specifically as such an expansion would serve to facilitate the proliferation of the small-scale, property-owing farmer – the so-called “yeoman” – whom he identified as his ideal constituency. But as his Federalist critics did accurately point out, he was a strict constructionist, and one who had previously and very publicly abhorred attempts by the Adams administration to exercise such powers as Jefferson believed to be beyond their constitutional remit. Strictly speaking – and regardless of what Jefferson and his supporters may have desired – the Constitution did not grant any organ of the federal government the power to annex otherwise foreign territory. Article II, Section 2 did grant the President the authority, “By and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur [,]” and the instrument by which Louisiana was to become an American territory was most definitely a treaty. But was that sufficient under the circumstances? Had the passage in question been devised with the specific intention of allowing Presidents and Senate majorities to take possession of foreign territory on behalf of the United States? Jefferson, for his part, wasn’t all that sure, to the point that he believed it might have been necessary to secure a constitutional amendment. It went against his stated philosophy, after all, for the national government to assert a power not expressly granted by the text of the Constitution. And it would have been next to impossible to argue that the Constitution expressly authorized anything like the Louisiana Purchase. Granted, amending the Constitution would have introduced a significant delay to the process, but wasn’t it preferable to keep everything above board? Wasn’t it better to pay respect to the law as it stood?

    Jefferson’s answer to these questions, ultimately, was no. As discussed in a previous entry in this series, his Secretary of State, James Madison, was ultimately able to convince him that the only real authority to which the national government ought to feel beholden was the American people themselves. It may have been true, Madison notably admitted around this same time to Massachusetts Senator John Quincy Adams (1767-1848), that the Constitution did not specifically authorize the national government to facilitate the expansion of the United States by way of the annexation of foreign territory. But when one considered, “The magnitude of the object [,]” it seemed best to leave it up to, “The candor of the country” whether or not this was really a problem. Explaining his final position on the matter in a letter to Kentucky Senator John Breckinridge (1760-1806) in August of 1803, Jefferson seemed to have largely internalized this exact line of reasoning. “It is the case of a guardian,” he explained, “Investing the money of his ward in purchasing an important adjacent territory; & saying to him when of age, I did this for your good.” The constitutionality of the Louisiana Purchase had evidently ceased to matter. So long as the thing itself was being undertaken on behalf of the American people – and so long as the effects thereof were likely to be beneficial – then Jefferson felt comfortable pushing for a simple ratification. But while he was ultimately granted it – and while the Louisiana Purchase did ultimately set the pattern for every territorial acquisition to come – the rationale which ended up being deployed in its favor was rather at odds with both the ideal that Jefferson had previously avowed and that which has subsequently become one of the lodestars of American republicanism.

    Jefferson, recall, had not but five years before he signed the Louisiana Purchase into law in 1803 argued vehemently against a similar assumption of power on the part of the Adams administration during the so-called “Quasi-War” with France (1798-1800). Specifically, speaking to the passage of the aforementioned Alien and Sedition Acts, he declared in a set of remonstrances which came to be known as the Kentucky Resolutions (1798) that the governing Federalists were guilty of violating the spirit and intention of the United States Constitution in their efforts to tamp down on domestic opposition and shore up their own power. It may have been true, he wrote, that Congress indeed possessed the authority, “To make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or any department thereof [,]” but this should not have been interpreted as carte blanche to do whatever they wished. “Words meant by the instrument to be subsidiary only to the execution of the limited powers,” Jefferson avowed, “Ought not to be so construed as themselves to give unlimited powers, nor a part to be taken as to destroy the whole residue of the instrument [.]” The “Necessary and Proper Clause” – Article I, Section 8 – may indeed have been intended to cover a wide range of functions and duties, but it was Jefferson’s considered opinion – in 1798, at least – that it should only have applied to such responsibilities as had been expressly granted by the text of the Constitution to the government of the United States.

    While it can hardly be characterized as surprising that Jefferson’s opinion on the nature of federal power changed once he and his fellow Democratic-Republicans came into possession of the same, it is nonetheless worth noting just how completely he was willing to invert his stated principles when the prize in question was his to be gained. As aforementioned, nothing in the Constitution explicitly authorized the purchase and/or annexation of foreign territory by the national government on behalf of the American republic. The only clause that came particularly close was located in Article IV, Section 8. “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” it read. But while this made it clear enough that Congress indeed possessed the authority to govern, organize, or generally decide the fate of whatever property it could claim to own directly – intended almost certainly to refer to the existing Northwest Territory – it made no mention of how additional territory might come into federal ownership. Indeed, it gave no indication as to whether or not such an acquisition was even legally possible. The Northwest Territory had been formed out of lands previously claimed by a number of states whose specific ownership was as still unresolved at the time that the United States gained its independence. These lands had not needed to be purchased, had never really been “foreign,” and had become federal property by way of voluntary grants. While there could accordingly be said to exist some degree of precedent for the procurement of land by the federal government – and while the Constitution granted Congress the power to administer said land – neither law nor tradition could be fairly claimed as justification for a land acquisition in the manner of the Louisiana Purchase.

    But whereas Jefferson had asserted in 1798 that the Necessary and Proper Clause was a set of, “Words meant by the instrument to be subsidiary only to the execution of the limited powers [and] ought not to be so construed as themselves to give unlimited powers [,]” he seemed to change his opinion entirely in 1803. Now in a position to wield those same powers whose abuse he had previously decried, he allowed himself to be convinced – by none other, it bears noting, than one of the authors of the Constitution – that what mattered more than strictly adhering to the “limited powers” granted by the governing charter of the United States was knowingly acting in the best interests of the American people. The people, after all, had ratified the Constitution, and it was from their sovereignty that it derived whatever power it possessed. Why, then, if the people wanted something done, should the Constitution have been allowed to stand in their way? And Jefferson was sure that the people wanted the Louisiana Purchase to take place. Or at the very least he was sure that it would have been to their benefit if it did. As he explained it to Senator Breckinridge, after all, sometimes a wise guardian must act on behalf of their ward in ways that the latter might not understand at the time. What mattered, in such cases, was less the desire of the one than the good intentions of the other. The child would come to understand in time and would be grateful. This, it seemed, is how Jefferson thought of his fellow citizens circa 1803: as children in need of someone to make decisions on their behalf. Were some of those decisions at odds with the law of the land? The very law, indeed, that the people had approved? Perhaps so. But as long as the people approved of it in the long run – if by doing no more than failing to raise any substantial objection – then what did it matter?

    This mindset would seem to be fundamentally at odds with that which Abraham Lincoln gave voice to in his speech to the Springfield Lyceum at the beginning of 1838. To his thinking, the Founders were liberty personified, and their influence upon their fellow citizens – while they still lived, at any rate – was one of moral stabilization. Their very presence had inspired their countrymen to reject ambition and greed in service of the collective good of the American community, and their gradual diminishment called for some manner of response. Lincoln believed that strict and scrupulous adherence to the law might conceivably make up for the “crumbling away” of these erstwhile “pillars of liberty,” but an examination of the rationale knowingly deployed by the same would seem to call the whole project into question. Presumably, Lincoln sought to promote rigorous obedience to the law because he felt that such a course of behavior aligned with the influence which he perceived that the Founders had previously exerted. He had identified a problem – the mounting disregard which the American people evinced for the law of the land – pinpointed a cause – the loss of the Founders as a source of moral inspiration – and was now prescribing a remedy. But if the behavior of Thomas Jefferson during the events of the aforementioned Louisiana Purchase were any indication of how the Founders tended to regard the law, the people whose vigilante behavior Lincoln was actively decrying in 1838 would in fact seem to have arrived much nearer to the example of their illustrious forbears than would have been the case if they simply did as Lincoln was suggesting.

    What was it that had Jefferson done when he opted to pursue the ratification of the Louisiana Purchase treaty without an accompanying constitutional amendment, after all, but take the law into his own hands? He was not unaware of the fact that the Constitution had nothing to say on the matter of annexing foreign territory. Nor was he personally uncertain as to the proper application of the otherwise open-ended Necessary and Proper Clause. He initially believed, in fact, that a constitutional amendment would necessary before the terms of the Louisiana Purchase could enjoy the force of law. But then, at the prompting of certain of his colleagues and supporters, he changed his mind. Maybe it was true that the Constitution couldn’t be said to explicitly authorize the annexation of foreign territory, but so what? Jefferson believed that it was the right thing to do, that it would benefit the country in the long run, and that the American people would eventually come to approve. Granting a fundamental difference of scales, in what way was this thought process unlike that of the murderers of Francis McIntosh and Elijah Lovejoy? Those people – whomever they were, in fact –most assuredly understood that the killing of an individual outside of a duly-authorized judicial proceeding was against the law. Nor could they have been unaware of the fact that any and all mainstream religious authorities held the taking of a life to be a paramount sin. But they also doubtless believed that they were nevertheless in the right. McIntosh was a murderer himself, as he not? And Lovejoy was an unrepentant agitator. Surely the disposal of these individuals would benefit the American people as a whole. Surely their fellow Americans would come to accept this necessity of such actions in time.

    The same parallels might very easily be drawn between the aforementioned individuals and the Adams and Jefferson administrations in 1798 and 1804, respectively. As with the Louisiana Purchase, Jefferson’s attempt to have a Supreme Court Justice removed from office for expressing political opinions contrary to his own represented, not only a knowing violation of established norms and practices but also a departure from his own avowed principles. The jurist in question, Samuel Chase, may indeed have behaved inappropriately on more than one occasion during his Supreme Court tenure, but Jefferson and his allies in the Democratic-Republican party could not have but known that none of what Chase had said or done fell outside the long-established bounds of judicial good behavior. That they proceeded regardless – and notwithstanding the fact that removing federal judges for speaking their minds was bound to severely erode the principle of judicial independence – would seem to speak to a kind of destructive single-mindedness not at all unlike that of Lincoln’s cited offenders. President Adams and his fellow Federalists, circa 1798, were arguably no different. The text of the Constitution was plain: Congress was prohibited from abrogating the American people’s freedom of speech, freedom of expression, freedom of the press, or their right to seek a redress of grievances. No one could possibly have claimed ignorance on this count without exposing their unfitness to hold an office of public trust. But as it happened in fact, the Federalists who then controlled Congress thought they knew better. Notwithstanding whatever the Constitution did or did not say, it was their concerted opinion that the internal stability of the American republic demanded the passage of such legislation as would serve to discourage the publication of such materials as promoted disdain for government or opposition to certain policies or laws. The American people might have recoiled in the immediate at the passage of such a law and called attention to the contradictory passages from within the text of the Constitution, but that was neither here nor there. As far as the Federalists were concerned – and as far as President Adams, at length, was willing to grant – the needs of the moment outweighed a scrupulous observance of the law.

    Bearing all of these examples in mind, Lincoln’s aforementioned lionization of the Founders within the context of decrying the growth of vigilante behavior in mid-19^th century America would seem, upon reflection, to be more than a little misplaced. Granted, his mistake was hardly an uncommon one. He believed, as most of his fellow countrymen have since the United States first declared its independence in 1776, that the Founders represented a kind of paramount moral exemplar whose deeds and beliefs were almost wholly unimpeachable. While they lived, they served to guide the actions and intentions of the American people as a whole. To follow the example of the Founders was accordingly to aspire to a kind of perfection. And as they were selfless, and disinterested, and disclaimed all forms of personal ambition, what better way to make up for their absence in American life than to surrender one’s individual desires and pursue a rigorous obedience to the laws of the land? What better way to shore up the crumbling away of the pillars of the temple of liberty than by adhering with utmost strictness to the institutions and the frameworks that the Founders had first helped to erect?

    The problem with this kind of thinking, of course, is that it dramatically oversimplifies the nature of the relationship that existed between the Founders and their various institutional creations. Men like John Adams, and James Madison, and Thomas Jefferson may indeed have been responsible for many of the laws, and norms, and institutions, and concepts which collectively constitute the modern American form of republican government. But these same individuals were also both far from morally unimpeachable and also far from scrupulous in their attitudes towards the things that they created. They could be selfish sometimes, and petty, and interested more in the mere possession of power than the larger moral dimensions of how it was gained and held. And they also tended to be rather alarmingly cavalier when it came to the exact letter of the law. Far from infrequently, they held their own personal convictions to be superior to the dictates of the Constitution itself, and all in the belief that what they felt needed to be done was for the good of the nation as a whole. They accomplished some amazing things, as a group, during their tenure on this earth, and their achievements should absolutely be recognized as such. But as an example of proper behavior during a time of increasing disregard for the law – as Abraham Lincoln believed he was witnessing in 1838 – they leave rather much to be desired. Far from being paragons of enlightened selflessness, their personal ambitions often deeply colored their most memorable deeds.                                  

The Perpetuation of our Political Institutions, Part VIII: The Lincoln Fallacy, contd

    Thomas Jefferson, of course, and his fellow Democratic-Republicans had opposed the passage of the Alien and Sedition Acts from the very moment that they were first proposed in Congress in the summer of 1798. Indeed, it was thanks to their opposition to said acts – or, barring that, their attempts to ameliorate the worst effects thereof – that the resulting legislation was as moderate as it turned out to be. They were the ones who successfully demanded that individuals accused under the Sedition Act could argue in their defense that their statements had been true, for example. And it was owed entirely to their efforts that the terms of said act would automatically expire in 1801. But these objectives were sought during a time when the Democratic-Republicans were in opposition and would have contested just about any Federalist proposal so as to deny their rivals the barest sense of accomplishment. What of the period following the election of Thomas Jefferson to the office of President in 1800, during which time the Democratic-Republicans possessed majorities in both houses of Congress? Were Jefferson’s partisans any better than the Federalists had been when they finally got their hands on the levers of power? Did they behave like the “pillars of the temple of liberty” that Abraham Lincoln later declared them to be?

    The short answer, unsurprisingly, is no, they did not. The Adams administration, to be fair, did not leave the incoming Jefferson and his Democratic-Republican allies in Congress much room to be magnanimous upon their swearing-in in the spring of 1801. Infamously, by way of the Judiciary Act of 1801, Adams had tried to pack the courts with Federalist partisans at the last possible moment before his term expired. Granted, the legislation in question was not as nakedly political as the Democratic-Republicans later claimed it to be. Its main effects were to expand the number of federal circuit courts and eliminate any requirement for Supreme Court Justices to hear circuit court cases, both of which answered the increasingly urgent needs of the nascent federal judiciary. But in attempting to craft a more efficient federal judicial system wherein the Justices of the Supreme Court no longer suffered from chronic overwork, the Federalists also inevitably created a multitude of federal judgeships which it fell to the lame duck President to fill. This was by design, of course, Adams having just lost his bid for re-election to Democratic-Republican candidate Thomas Jefferson and the Federalists accordingly seeking to create a judicial bulwark against what they feared would be an onslaught of detrimental Jeffersonian reforms. In the three-week period which elapsed between the passage of the act on February 13^th and Jefferson’s inauguration on March 4^th, Adams accordingly set about nominating – and the lame duck Federalist Senate set about confirming – fifteen circuit court judges, two district court judges, and one Supreme Court Justice. The Democratic-Republicans were understandably incensed.

    In the immediate, Jefferson played at generosity. His opponents were the ones who had behaved in a nakedly partisan manner, trampling on the rights of the fellow Americans and abusing their authority for the sole purpose of securing their own positions. The incoming administration wished only for a return to the principles that had moved the soul of every right-thinking person in the former Thirteen Colonies to give their all during the late Revolution for the righteous cause of freedom. There was no room for narrow party politics in such an expansive vision of America’s purpose in the world. “We are all republicans [,]” Jefferson accordingly affirmed in his inaugural address, “And we are all federalists.” But while the declared intention of the Jefferson administration was at the outset to promote a kind of national reconciliation, the leadership thereof soon proved themselves to be as narrowly devoted to their particular partisan objectives as the Federalists had ever been. In such instances where Democratic-Republican authority went unchallenged – as in the federal bureaucracy, for example – individuals appointed by the former Adams administration were allowed to keep their posts so long as they avoided misconduct and refrained from overly partisan behavior. But in the case of the judiciary, wherein Federalist justices were ostensibly protected from external oversight, Jefferson went on the offensive. Not only did the Democratic-Republicans who had taken control of Congress promptly repeal the Judiciary Act of 1801 – thus eliminating the associated circuit courts and nullifying the commissions of the justices that Adams appointed – but when Supreme Court Justice Samuel Chase (1741-1811) spoke out against the repeal during a grand jury hearing in Baltimore in the spring of 1803, Jefferson intimated to his supporters in the House that such behavior might in fact be grounds of impeachment. “Ought this seditious & official attack on the principles of our constitution, and on the proceedings of a state, to go unpunished?” he asked in a letter to Maryland Congressman Francis H. Nicholson (1770-1817), “And to whom so pointedly as yourself will the public look for the necessary measures?”      

    To once more be entirely fair to President Jefferson and his supporters, Justice Chase had made it something of a habit during his brief judicial career up to that point to speak from the bench as a Federalist partisan rather than as an impartial jurist. Acting in his capacity as a district judge in April of 1800, for example, he had rather strenuously attacked English-born economist and political philosopher Thomas Cooper (1759-1839) after the latter was indicted under the terms of the Sedition Act. Later that same year, Chase refused to dismiss a grand jury that had been summoned in New Castle, Delaware after its members declined to hand down an indictment to a local printer by suggesting the name of another printer which they might see their way clear to charging. And then, as aforementioned, he complained to another grand jury in Baltimore in May of 1803 that, “The late alteration of the federal judiciary [...] will take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy, the worst of all popular governments.” Clearly, though Samuel Chase had been serving in various judicial offices since his first appointment to the District Criminal Court in Baltimore in 1788, he never developed the sense of personal restraint which such responsibilities arguably require. This – combined with the life-tenure he enjoyed as a Supreme Court Justice – made him an obvious target for Democratic-Republican ire, and one which that selfsame party seized upon with avidity when prompted to do so by Jefferson.

    The process that followed was an illuminating one to say the least. Led by Virginia Congressman John Randolph of Roanoke (1773-1833), the Democratic-Republicans in the House voted to impeach Chase on fully eight counts, among which were charges that he, “Did descend from the dignity of a judge and stoop to the level of an informer,” and that his remarks to the Baltimore grand jury had been, “Intemperate and inflammatory [,] peculiarly indecent and unbecoming [,] highly unwarrantable [and] highly indecent [.]” In the end, when the final tally was made on March 12^th, 1804, the assembled Congressmen voted seventy-three to thirty-two in favor. Not every Democratic-Republican voted in favor of the charges, but the majority who had was more than enough to send the matter to the Senate. The Democratic-Republicans enjoyed a majority in that chamber as well – to the tune of twenty-five to nine – and only twenty-three votes were required for Chase to be convicted and removed. His fate, at first glance, looked as though it was sealed. But then, as the relevant Senate trial unfolded, something unexpected took place.

    As Vice-President Aaron Burr (1756-1836) presided, the two sides presented their arguments. Justice Chase, Congressman Randolph avowed, had clearly allowed his partisan leanings to influence his behavior on the federal bench, leading to the unfair treatment of those with whom he disagreed politically. Such behavior was unconscionable and unforgiveable, the only remedy being his removal from office. In response to these charges, Chase avowed that his performance in office – while perhaps not always to the liking of his Democratic-Republican critics – never crossed the line into wholesale impropriety. He never misused his power for personal gain, never granted favors, never rendered judgements that weren’t grounded in precedent, and never expressed his opinion on any matters other than those that touched directly upon his responsibilities as a jurist. In what way, then, had he violated the terms and restrictions of his office? In what sense, save for a strictly partisan one, had he strayed from the accepted standard of legal behavior? Much to Jefferson’s displeasure, Chase’s arguments ultimately won the day. That, or the assembled Senators found the prospect of removing a Supreme Court Justice simply for speaking his mind to be beyond their remit as legislators. Chase was acquitted on all eight counts, Jefferson’s offensive against the judiciary came to an end, and a series of important norms were established. Chase may not have committed any offenses which warranted his removal from office, but his overtly partisan behavior was indeed unbecoming of a Supreme Court Justice. Federal judgeships were intended to be non-partisan, and those who were granted them were obliged to behave as such. At the same time, however, it was not the place of either the executive branch or the legislative branch of the federal government to strictly police the behavior of federal judges. If it could be proven that any one of them had violated the Constitution of the United States, broken the laws of the United States, or else acted in such a way as unequivocally harmed the public good, they should be held to account. But they should otherwise be left to their own devices, lest they begin to feel as though they were being unduly pressured by those upon whose cases they might be called to rule.

    Notwithstanding the arguably beneficial outcome thereof – inasmuch as the nascent United States was in need of the occasional “road test” – the circumstances surrounding Samuel Chase’s impeachment and acquittal did not speak well of the Democratic-Republicans who set the whole affair in motion. For one thing, the manner in which Jefferson first raised the prospect of having Chase removed from office positively reeked of hypocrisy. In spite of the fact that he and his supporters had but lately waged a war of words against the Adams administration over the latter’s approval and deployment of the Sedition Act – a piece of legislation which unequivocally sought to criminalize certain kinds of speech – Jefferson nevertheless had the temerity to describe Chase’s comments to the aforementioned Baltimore grand jury as a, “Seditious & official attack on the principles of our constitution [.]” Had Chase behaved inappropriately when he criticized the Democratic-Republicans in Congress for repealing the Judiciary Act of 1801? Almost certainly. His role as a member of the federal judiciary was to adjudicate the actions of the legislative and executive branches, not to render his opinion as to the moral or political implications thereof. But what had Chase done in this instance but speak his mind? Was his speech not protected by the First Amendment? Had he abrogated certain of his rights as an American citizen when he accepted his commission as a federal judge? He had not, in fact, though the practical significance of his speech had undeniably changed. Jefferson’s attempt to unseat him, therefore, arguably constituted as heinous a violation of the United States Constitution as had the passage and enforcement of the aforementioned legislation.

    And for that matter, there was also something disingenuous about Jefferson’s attempt to reinterpret a key passage from the text of the Constitution. As stated in Article III, Section 1,

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The relevant phrase having to do with the continuance in office – or not – of Justice Chase was that which described the tenure of federal judges as being, “During good Behaviour [.]” The concept of a corps of federal justices whose period in office would be indefinite given that they acted in accordance with an unspoken code of conduct was first introduced into the debates which ultimately produced the United States Constitution as part of Edmund Randolph’s so-called “Virginia Plan.” In it, Randolph proposed that, “A National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour [.]” But while this first appearance of the phrase was unquestionably significant – and Randolph bears credit for introducing it into the proceedings – the concept which it denoted was already deeply embedded in existing English legal norms. Not only did several state constitutions place similar conditions upon the judicial officers thereof – New York, North Carolina, and Maryland, for example – but the piece of legislation which paved the way for the ascension of the House of Hanover in Great Britain – i.e. the Act of Settlement (1701) – had made a point of declaring the primacy of “good behavior” tenure almost a century earlier.

    Specifically, the Act declared that, “Judges commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them [.]” The Latin phrase quamdiu se bene gesserint meant, in this context, something like, “As long as he shall behave himself well.” Its purpose was essentially to establish a new standard of judicial tenure which the monarchs of the incoming House of Hanover would be required to ascribe to if they were to be accepted as the legitimate possessors of the British Crown. Whereas certain monarchs of the House of Stuart had wantonly abused the privilege of appointing judges whose commission required only that they serve “at pleasure” – meaning that they could be dismissed at any time by the Crown – the kings and queens of the new royal house would be forced to accept the existence of judges whose tenure would extend for as long as they behaved themselves properly or until Parliament voted to remove them. The aim of such a reform, of course, was the promotion of a previously unseen degree of judicial independence whereby jurists no longer functioned solely as instruments of the executive. A judge whose commission was during good behavior could not only exercise their discretion without fear of incurring the displeasure of the executive, but they could even help to hold the executive itself to account. A judiciary thus constituted could accordingly serve a far more useful purpose than one whose member must ever remain conscious of the whims of the authority that originally appointed them.           

    Thomas Jefferson knew all of this, of course, or had no excuse not to know it. He was a lawyer by trade and a scholar by inclination. And while the method by which Justice Chase’s removal was attempted was entirely in keeping with both the terms of the Constitution and their antecedents in the Act of Settlement, the spirit of the endeavor was rather at odds with that which was intended. The reason the Act made a point of declaring that judges were thenceforth to serve during good behavior was to prevent the kinds of judicial abuses that had been common under the House of Stuart from once more becoming the norm under the House of Hanover. The Crown would still be empowered to appoint judges to the various British courts, but only Parliament could remove them. The basic assumption behind this arrangement, of course, was that Parliament and the Crown would tend to have divergent interests. The Crown would want judges who were sympathetic to a wide-ranging view of executive authority, and Parliament would prefer judges who prioritized the prerogatives of the legislature. Having been proposed and approved by Parliament, the Act of Settlement naturally sought to nurture the emergence of the former perspective by preventing those judges who favored the same from being summarily removed by the Crown as a result. As aforementioned, the relevant passages in the Constitution of the United States and in the various state constitutions embraced and replicated this same basic logic. But in terms of the US Constitution, at least, the larger institutional context fundamentally altered the way it was likely to be applied.

    As mentioned above, the authors of the Act of Settlement assumed – with good reason – that the Crown and Parliament would almost always take a different view on the nature and purpose of the judicial authority. Their power each came from different sources, their prerogatives applied to different spheres, and their goals were bound to be similarly unalike. Members of Parliament might find a useful ally in the Crown depending on the circumstances and the context of the moment, but the authority of one was bound to clash with the authority of the other if both were intent on exercising as much power as possible. Such was not the cause, however, within the context of the United States of America. It was possible, to be sure, that Congress and the office of the President might be each be controlled by individuals possessed of diametrically opposed political ideals, in which case granting one the power of appointing federal judges and the other the power of removing them would make as much sense as it had in Britain in 1701. But if the executive and legislative branches were in the hands of those who fundamentally agreed in terms of policy and ideology – members, perhaps, of the same political party – then the basic principle of judicial independence would be reduced to little more than a theory. If all that a President who disliked a given federal judge had to do to see them removed was whisper into the ear of their party’s leader in Congress, how were said judges supposed to rule without fear or favor? Why would any judge in such a position ever determine to rule against a sitting President? Again, they need not always have feared such an arrangement of circumstances. Whenever Congress was controlled by one party and the office of President by another, they would presumably enjoy a substantial degree of security. But who could say how often this would be the case? And when it wasn’t, woe betide the judge who acted against the ruling party’s wishes.

    Bearing all of this in mind, the basic concept of service during good behavior would seem doubly essential in the American context when compared to that of the British. At least in Britain, a sitting judge could be assured that Parliament and the Crown were unlikely to ever agree on what constituted a desirably jurist. In this disagreement lay their security. But in America – following the emergence of a stable party system, at least – Congressional majorities might often agree when a told by a President that a particular jurist had become obnoxious. For this reason, the standard of proof for accusations of judicial impropriety within the American federal court system needed to be quite high. If being of a different opinion than the ruling party on a given issue constituted adequate grounds for removal, what hope could any federal judge dare hold out of serving for more than a handful of years? Every transition of power from one party to another would bring about the complete overthrow of the federal bench, at which point the American people would inevitably begin to lose any faith they might have previously invested in the idea of a system of impartial national courts. Granted, federal judges could work to erode this sense of popular confidence on their own by, say, too frequently expressing their individual political opinions. But without the practical autonomy guaranteed by a strict interpretation of the concept of service during good behavior, public opinion would matter far less than keeping in the good graces of the party in power.

    To say that President Jefferson had not taken account of these considerations when he attempted to have Justice Samuel Chase removed from office would seem to be selling the man rather short. As aforementioned, he was famously possessed of great intelligence and insight. If anyone understood the purpose and implications and judicial autonomy and good behavior tenure within the Anglo-American legal tradition, he would have been first among them. The fact that he nevertheless sought to have Chase jettisoned from the federal bench merely – if foolishly – for speaking his mind would accordingly seem to constitute a knowing transgression on his part. Wouldn’t he have cried foul and fought tooth and nail if a later Federalist President connived with a Federalist-dominated Congress to remove a federal judge that he had appointed simply for voicing a contrary political opinion? Of course he would have. In that case, didn’t he care about the precedent his actions would have set if they succeeded? Of course he didn’t. Jefferson was many praiseworthy things, but he was never what one might call a creature of precedent. On the contrary, as his political career matured into the 1780s, 1790s, and 1800s, he often made it abundantly clear that he viewed the present moment as the only proper context for judging the validity of a given action. “The earth belongs in usufruct to the living [,]” he famously wrote to James Madison from Paris in 1789, and “The dead have neither powers nor rights over it [.]”

    With this perspective as his guiding light, it should accordingly come as no surprise that Jefferson felt empowered as President to do whatever it was he felt was right. What did it matter if the law said otherwise, or even the Constitution? What were norms and traditions but relics of a past that no longer held any value for the living? In 1803, he believed that the continuation of Samuel Chase’s terms as a Supreme Court Justice represented a threat to the wellbeing of the American people and the American republic, and he acted accordingly. It was a selfish perspective, and partisan, and one he would most certainly have fought if the situation were ever reversed. But that’s just who Jefferson was. Not so much “a pillar of the temple of liberty” as a politician like any other. Possibly, if he had succeeded, his actions would have severely undermined the legitimacy of the national courts in the eyes of the American people. But in the moment, from where he was sitting, the potential benefits were obvious. He could strengthen the Democratic-Republican’s hold on power and weaken a potentially troublesome federal court system in the process. Why shouldn’t he have made the attempt? It might have worked, after all. And if it did, more would surely have followed. To hell with precedent, or norms, or even the Constitution; if you were sure that what you were doing was ultimately for the best, all that mattered was getting away with what you could. 

The Perpetuation of our Political Institutions, Part VII: The Lincoln Fallacy, contd

     In addition to avowing that the presence of Britain as a threat to the survival of the United States of America had helped to stifle the self-serving ambitions of generations of Americans up through the 1820s, of course, Abraham Lincoln also argued in his speech to the Young Men’s Lyceum in Springfield, Illinois in January of 1838 that the Founders had likewise operated as a kind of socio-political binding agent throughout the first several decades of the existence of the American republic. Granted, he did not express himself in those exact terms. He did not say that Americans largely behaved themselves during the late 18^th and early 19^th centuries because they were either inspired by the example which the Founders collectively set or anxious of incurring the disappointment of the same. But the expressions that he did deploy seemed to convey this basic sentiment. When seeking to exhort his audience to make absolute obedience of the law the civic religion of the American people, for example, Lincoln pointedly asked his countrymen to, “Swear by the blood of the Revolution never to violate in the least particular the laws of the country [.]” “As the patriots of seventy-six did to the support of the Declaration of Independence,” he went on to say, “So to the support of the Constitution and laws let every American pledge his life, his property, and his sacred honor [.]” Clearly, Lincoln believed that such an invocation would have a demonstrable effect. Clearly, he believed that the Founders existed in the shared imagination of the American people as a kind of morally positive – one might even say sacred – force to which subsequent generations ought to hold themselves in comparison.

    Just so, when later lamenting the fact that the living memory of the Founders and the Revolution had, by the late 1830s, almost completely faded away, Lincoln spoke of the generation in question in the most reverent tones imaginable. He hoped, he said, that the scenes of the Revolution, “Will be read of, and recounted, so long as the Bible shall be read [.]” He described the Founders themselves as having been, “Pillars of the temple of liberty [.]” And when recounting the process by which these luminaries had been made to grow dimmer with passing time, he did so by way of language calculated to rend the hearts and stir the passions of his audience. The Founders, he said, were, “A fortress of strength” and, “A Forest of giant oaks” who had since been swept away by, “The all-restless hurricane” of time. It was a tragedy, as Lincoln described it, that the Founders had passed from the earth. They had done so much for their countrymen, inspired so man, and with their loss was bound to come a great emptiness in the American soul. Lincoln’s self-appointed task was to find some way of filling this emptiness in such a way as to maintain the internal cohesion that the Founders had once affected. But were the Founders as righteous as he claimed? Had their influence always been so uniformly positive? Had their behavior always been something to which their countrymen should aspire?

    The answer to all of these questions, quite frankly, is no. It may well have been the case – indeed, it absolutely was the case – that by the late 1830s the Founders had achieved a level of cultural sanctification not at all unlike that which they enjoy here at the beginning of the 21^st century. But this was very much in spite of the fact that the Founders themselves were, fundamentally, a group of human beings about which absolutely nothing could be said to be sacred, pure, or holy. They were, as a group, fiercely intelligent, and their wisdom, prudence, and foresight were often second to none. Indeed, one might fairly wonder if any other collection of farmers, lawyers, soldiers, and merchants could have accomplished what they accomplished in manifesting and preserving the world’s first constitutional republic. But in addition to being, in the 1770s and 1780s, some of the most impressive statesmen that mankind had ever seen, they were also, in the 1790s and 1800s, some of the most petty, self-serving, and opportunistic politicians that one is like to imagine. They bickered, to be sure, amongst themselves during the Revolution and its immediate aftermath. They disagreed over military strategy and diplomatic strategy, finance and logistics, the form their governments should take and where authority should be deposited within them. The whole saga of the Constitution, in fact, was one series of quarrels after another, from the Philadelphia Convention to the ratification debates to the final passage of the Bill of Rights. But none of these disputes came anywhere close in terms of their bitterness to those which characterized the two decades following the creation of the modern federal government in 1789. And nowhere else were the Founders’ sense of pride and their ambition even plainer.

    Consider, by way of example, what is probably the most famous incident from the presidency of John Adams, the passage and signing of the Alien and Sedition Acts (1798). The legislation in question were initially proposed by the Federalists who then controlled both houses of Congress in response to repeated conflicts between the United States of America and the revolutionary French Republic. In reaction to the adamant refusal of the Washington administration to intervene in on France’s behalf in its ongoing war with Great Britain and the negotiation of a major diplomatic agreement between American and British authorities – i.e., the Jay Treaty (1795) – the government of the French Republic more or less came to the conclusion by the end of the 1790s that the United States had decided to take up the role of Britain’s junior partner. French privateers had been forbidden from taking refuge in American ports, American citizens had been forbidden from enlisting to fight in the French military, and previously flagging trade relations between the American republic and Great Britain had been shored up and reinforced. What more could the French do, under these kinds of circumstances, but treat the United States like the enemy that they had made themselves? American merchant vessels bound for Britain accordingly found themselves targeted by the navy of the French Republic, the end result of which was that the incoming administration found itself in a rather awkward position upon the inauguration of John Adams in the spring of 1797.

    The American people, for the most part, were supportive of the French Revolution, and wished for nothing less than a renewal of the Franco-American alliance that had served them so well during the late Revolutionary War. But while the opposition Democratic-Republicans – led by Thomas Jefferson and James Madison – were likewise sympathetic to France, the Federalists – of which Adams was the nominal leader – were ardently opposed to any American involvement in the wars then raging in Europe. This changed somewhat as French attacks on American shipping intensified, but Adams at the very least remained devoted to pursing a path of peace. The United States, he feared, would not survive a sustained conflict with any of the European empires, and those who claimed otherwise did so from a place of determined ignorance. As the Federalists became increasingly embittered towards the French, however, and the Republicans increasingly suspicious of Federalist intentions, Adams at long last attempted to strike a compromise. In a speech delivered to a joint session of Congress in May of 1797, he announced a two-pronged policy by which a peace commission would be dispatched to France for the purpose of restoring relations between the French and American republics at the same time that measures would be taken to increase the nation’s defensive capabilities. The Federalists were pleased enough by this, seeing in the military buildup Adams had promised almost exactly the response which they had been demanding, but the Democratic-Republicans were furious. Not only had Adams failed to express his support for the French Republic – an act which they felt should have been a given – but he seemed to be putting the United States on a footing for war with France. Yes, he had promised to send a peace delegation to Paris, but what of it? Surely, they would not negotiate in good faith. Surely, they would be instructed by Adams to engineer their own failure so as to validate an aggressive response. What more could one expect from an administration that had determined from the start to form an alliance with a former enemy of the United States and make war on a former ally?

    Adams’ peace mission, it turned out, wasn’t just for show. On the contrary, their efforts soon proved to be exceedingly consequential. The three commissioners – John Marshall (1755-1835), Charles Cotesworth Pinckney (1746-1825), and Elbridge Gerry (1744-1814) – arrived in Paris in October of 1797, at which time they were met with a rather brusque response. Having first been kept waiting for several days after requesting an audience with a representative of the French government, they were finally met – for all of fifteen minutes – by the sitting foreign minister, a man named Charles-Maurice de Talleyrand-Périgord (1754-1838). Rather than open negotiations then and there, however, Talleyrand instructed the Americans to instead meet at some later date with three of his hand-picked agents. When this second meeting took place, Talleyrand’s adjutants at last made clear what it was the new French government expected. By way of apology for the provocative words and actions of President Adams, the American commissioners were told, the United States would be required to pay a series of indemnities before any kind of agreement could even be discussed. One of these payments would go to Talleyrand himself, another would be directed to the French Republic as a whole. Unsurprisingly, the Americans refused to proceed on such terms. Marshall and Pinkney returned home immediately while Gerry remained in France, though with little hope of making any kind of progress.

    While the peace delegates obviously did nothing at all to alleviate the tensions which were then daily mounting between the United States and the French Republic, news of their treatment – once it was finally made public in the spring of 1798 – more or less overturned American public opinion and swung the balance of power firmly towards the Federalists. President Adams, for his part, had wished to avoid such an outcome. Conscious of the effect which France’s extortionate behavior would have on the already deeply suspicious Federalists, he initially did no more than announce that the attempt at negotiations had failed. Neither the Democratic-Republicans nor the Federalists, however, were satisfied by this explanation. The former believed that Adams was hiding information which cast the French in a positive light and demanded that he release a full account of the American commissioners’ actions in Paris. The latter, meanwhile, having heard rumors of what had actually transpired in France, were only too eager for the intransigent behavior of the French Republic to be made clear. Pressed from both sides, Adams accordingly had no choice but to release the relevant dispatches. The result, among other things, was a massive shift in public opinion away from support for the French Republic and towards a war with the same. The Federalists claimed validation and demanded an even larger military buildup. The Democratic-Republicans, in the words of First Lady Abigail Adams (1744-1818), were, meanwhile “struck dumb” and reduced to casting about for some way to blame France’s insulting behavior on the President’s belligerent attitude. This failed, unsurprisingly, and distrust of France became widespread.

    The Democratic-Republicans naturally refused to abandon their previous position – notwithstanding the behavior of Talleyrand and his agents – and consequently fell prey to a campaign of Federalist fearmongering. Specifically, they and their supporters were accused of conspiring with a foreign power to undermine American security and of using the press to sow division and promote the dissolution of the American republic. In Congress, these allegations took the form of a series of legislative proposals intended to shore up the nation’s internal security and promote unity in the face of what many in the Federalist orbit had come to believe was an inevitable war with the French Republic. The result, within the span of about two weeks in late spring and early summer of 1798, were four pieces of legislation which the Federalists claimed were essential and Democratic-Republicans decried as tyrannical. The Naturalization Act amended existing law to increase the “notice time” immigrants had to wait between declaring their intent to become a citizen and the beginning of the relevant legal process from three years to five and the “residence time” they had to fulfill in order to finally become citizens from five years to fourteen. The Alien Friends Act gave the President unilateral authority to detain, imprison, or deport non-citizens who they believed represented a threat to national security. The Alien Enemies Act gave the President the same power over those inhabitants of the United States who were citizens of a nation that was hostile to the same. And the Sedition Act made it a federal offense to publish, “False, scandalous and malicious writing or writings” that were critical of the national government. Collectively, these laws were referred to as the Alien and Sedition Acts.

    Some of these measures, it may fairly be said in retrospect, represented little more than a vindictive, self-serving, and paranoid attempt by the Federalists to secure their recent ascendency and remove challenges to their power. Based mostly on the strength of their rhetoric, the Democratic-Republicans had made significant inroads with a number of immigrant communities over the course of the 1790s, the end result of which was that most immigrants who attained citizens during that decade became either supporters or members of the Democratic-Republican party. A natural side effect of this development, of course, was that the Democratic-Republicans voter base grew at a much more rapid pace during this era than that of the Federalists. The emergence of certain policy issues could and did sometimes shift the balance of power in favor of the latter notwithstanding their dwindling percentage of support, but such developments were neither sustainable nor dependable. Given enough time – and provided the naturalization laws remained unchanged – the Democratic-Republicans would eventually swamp their Federalists rivals. The Naturalization Act of 1798, while often spoken of in the same context as the aforementioned Alien Acts and the Seditions Act, should accordingly be thought of as part of a Federalist effort to blunt a much broader trend. By slowing down the naturalization process, the Federalists doubtless hoped to stunt the growth of Democratic-Republican support and buy themselves more time to consolidate their hold on power.

    The Alien Enemies Act and the Alien Friends Act served a similar purpose, though they arguably spoke more to the present crisis than the Naturalization Act did. The French government, the Federalists avowed, was unabashed in its affection and support for Vice-President Thomas Jefferson and made no secret of its displeasure at the news of his loss in the Election of 1796. Bearing this in mind, it would not have constituted a wild flight of imagination to suppose that if the French Republic sent its agents into the United States of America for the purpose of gathering support for a renewed Franco-American alliance, Jefferson’s Democratic-Republicans would have made for obvious allies. And what manner of mischief might this combination have produced? Speeches? Pamphlets? Rallies? Insurrection? Some of these outcomes were more likely than others, to be sure, but all of them – as far as the Federalists were concerned – represented a potential threat to national unity. And while it would have been difficult – though not impossible – to use legislation to restrict the activities of American citizens, non-citizens were comparatively vulnerable to coercive government action. The result, as aforementioned, was the drafting and passage of such laws as would allow the Adams administration to rob their Democratic-Republicans rivals of potential allies in the form of foreign supporters. And if some of these foreign supporters were American citizens-in-waiting? So much the better for the Federalists, of course.      

    But while the Naturalization Act of 1798, the Alien Enemies Act, and the Alien Friends Act were all bad laws – permissible in a purely technical sense, but morally difficult to justify – the Sedition Act was something else entirely. The restrictions which the act placed upon American citizens were essentially twofold. First, it stated that,  

If any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty; and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor, and on conviction, before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term not less than six months nor exceeding five years [.]

Section 2 of the act then went on to state that,

If any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, 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 extent to which these represented wholly unjustifiable restrictions upon the behavior of American citizens should be patently obvious. Notwithstanding the linguistic vagaries peppered throughout – i.e., what does it mean to “unlawfully combine?” How does one define “intent to procure insurrection?” What makes a piece of writing “malicious?” Who are “the good people of the United States?” – the basic premise of the act was blatantly unconstitutional. As stated in the text of the First Amendment to the United States Constitution – approved by Congress in 1789 and ratified by the requisite number of states in 1791 – “Congress shall make no law […] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” What more could be said of the Sedition Act than that it abridged the freedom of speech and of the press? That it prohibited the American people from being able to peaceably assemble, or to petition the government for a redress of grievances? How could there be a free press if publishers were banned from printing anything that could be construed as being “Against the government of the United States, or either house of the Congress of the United States, or the President of the United States [?]” How were people supposed to organized themselves for the purpose of petitioning for a redress of grievances if they could be prosecuted for claiming, “To oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority [?]” The implications of these measures were not slight, narrow, or of limited effect. On the contrary, they entailed the abrogation of rights otherwise guaranteed to the American people by the text of the Constitution. Congress did not – does not – have this power and should not have acted as though it did. And yet, for a time, the Sedition Act was law. 

    Granted, not many people were ultimately convicted under the terms of the legislation in question, and those that were received relatively light sentences. James Callender (1758-1803), a British editorialist who had written a book in which he described President Adams as a “Repulsive pedant, a gross hypocrite and an unprincipled oppressor [,]” was fined $200 and sentenced to nine months in prison. Matthew Lyon (1749-1822), an Irish immigrant and Continental Army veteran who had been elected to represent Vermont in the House, was fined $1000 dollars and sentenced to four months in prison for writing an essay for the Vermont Journal in which he accused the Adams administration of, “Ridiculous pomp, foolish adulation, and selfish avarice.” And David Brown (1740-1812), another former member of the Continental Army from Dedham, Massachusetts, was fined $480 and sentenced to eighteen months in prison – the longest of any of the imprisonments handed down – after he participated in a local protest against the Adams administration, plead guilty of sedition, and then refused to name any accomplices. These individuals suffered, to be sure; some of them fairly substantially. But the damage done to their lives and livelihoods was not the most troubling aspect of the passage of the Sedition Act. It was that a group of men, many of whom had but recently risked their lives in order to secure the liberties of the American people, then determined to arbitrarily suspend some of those liberties in the name of national security.

    Consider, to that end, the names and experiences of some of the Federalists involved in the formulation and passage of the Sedition Act. There was John Adams, of course, who, as President, signed the bill into law. By all accounts, though Adams was a famously prideful man who was quick to take offense, he was not particularly supportive of the prospect of punishing his fellow citizens for simply speaking their minds. That said, he did decline to exercise his veto. The Federalists, circa 1798, held a supermajority in the Senate but not in the House, meaning that an Adams veto of the Sedition Act could not have been overturned. That Adams nevertheless made the choice to sustain the legislation in question notwithstanding his personal feelings on the matter would accordingly seem to say something about the political calculus to which he felt beholden. He may not have felt that the Sedition Act was strictly appropriate, but he seemed to feel to an even greater extent the danger in bucking the party in whose hands lay his political future. He was most certainly the Federalists’ preferred candidate for 1800, but under the influence of a man like Alexander Hamilton they would surely have dropped him if they felt he’d become a liability. Adams’ actions, therefore, were categorically self-serving. He did not like that he was being asked to sign into law a piece of legislation which purported to make the expression of certain opinions a federal offense, but he did it anyway, almost certainly because he feared that to do otherwise would spell the end of his political career.

    The Federalists who then controlled Congress, while perhaps less concerned with the moral implications of the terms of the Sedition Act, were nevertheless moved by much the same rationale as President Adams. Namely, they were intent on preserving the power which they had but recently been granted. And who were these men? Well, there was the Speaker of the House, one Johnathan Dayton (1760-1824), without whose cooperation the Sedition Act would surely not have been passed. A native of New Jersey, Dayton began his service with the Continental Army in 1775 at the tender age of fifteen, fought under Washington at Brandywine and Germantown, suffered the brutal winter of 1777/78 at Valley Forge, was captured by Loyalists in 1780, and was released in time to take part on the climactic Battle of Yorktown in 1781. He thereafter studied the law, represented New Jersey in the Continental Congress and at the Philadelphia Convention, and was elected to the House of Representatives in 1789. Dayton was, in short, everything that subsequent generations of American expected a Founder to be. He had fought, and bled, and served, and debated, all for the cause of liberty and justice. He understood firsthand that freedom was a precious thing which one must be willing to die to defend and had personally helped to define the Constitution which he later swore to uphold as a Congressman. In spite of these qualifications, however, Dayton worked to undermine some of the liberties for which he had so long fought and labored when he oversaw the passage of the Sedition Act in the House. And for what? The perpetuation of Federalist power? The continuation of his term as Speaker? Founders were supposed to be better than that.

    Many of Dayton’s fellow Federalists in Congress were possessed of similar resumes. Theodore Sedgewick (1746-1813) of Massachusetts had participated in the Quebec Expedition (1775), fought at White Plains (1776), served in the Continental Congress and the Massachusetts General Court, and famously sued for the freedom of an enslaved woman latter called Elizabeth Freeman (1744-1829) before the Massachusetts Supreme Court in 1781. Philip Schuyler (1733-1804), perhaps most famous as the father-in-law of the aforementioned Alexander Hamilton, was one of the first major generals in the Continental Army, helped plan the Invasion of Quebec, was nearly kidnapped by the British in 1781, and was previously a long-serving member of the New York State Senate. South Carolina’s Thomas Pinkney (1750-1828) joined the Continental Army almost immediately upon concluding his legal education in Britain in 1775, became an aide-de-camp to General Horatio Gates, was captured at Camden in 1780, and served as America’s Minister to Great Britain between 1792 and 1796. And Virginia’s Daniel Morgan (1735-1802) was one of the most respected commanders of the entire Revolutionary War, being a veteran of the Quebec Expedition, Saratoga (1777), and Cowpens (1781). These were not men for whom the concept of freedom was an abstract thing to be bandied about in salons while passing the time of day. They had fought, and suffered, and served so that they and their countrymen could enjoy those liberties to which they knew they were entitled. They were Founders, surely, if the label has any meaning. And they were also the ones who voted in favor of the Sedition Act; voted in favor of abrogating the liberties of those with whom they disagreed politically. It was, unequivocally, a shameful and self-serving thing to do, and one which no record of prior service – however sterling – could ever possibly excuse.