“Why declare that things shall not be done which there is no power to do?”—Alexander Hamilton, Federalist No. 84, writing on his opposition to the inclusion of a Bill of Rights in the Constitution
“The Bill of Rights would never have been necessary . . . if so much power had not been granted to the central government by the constitution of 1787 in the first place.”—Ryan McMaken
History tells us that a condition for ratifying the Constitution was a section detailing how the proposed document would protect people from government aggression. Even New York—with a Bill of Rights existing as a statute and not part of its constitution—found their absence unsettling in a federal constitution. Along with Virginia and Massachusetts, New York’s delegates wanted an explicit statement of rights the newly-expanded government could never trample.
Article 1, Section 8 of the Constitution, wherein Congress would have the power “To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” established individual rights as contingent rather than inalienable—contingent on the decisions of government. Those who supported the Constitution, especially Federalist writers Hamilton and Madison, essentially said that money is needed to run any government effectively and asking for it was unreliable. Revenue was to be extorted from those who had it, made legitimate by the concurrence of state delegates, and made tolerable by “the prudence and firmness of the people,” as Hamilton wrote in Federalist 31.
The government was picking a fight with those under its jurisdiction. How would these people fight back?
Since taking property from another person without their permission is theft, the victims might start by engaging in verbal or written protests. If government had the legal power to restrict or forbid such protests, the people could not express their “prudence or firmness” without penalty. From this caveat and the desire on the part of nationalists to get the Constitution ratified, James Madison proposed a Bill of Rights consisting of 17, then 12, then finally 10 amendments, the first one stating, in part:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press. . .
The Bill of Rights was ratified on December 15, 1791.
Rock Covers Paper
Benjamin Franklin had died the previous year in Philadelphia at age 84. Earlier, the polymath Franklin and his common-law wife, Deborah Read, had two children, one of whom was Sally Franklin, born in 1743, who eventually married Richard Bache (“Beech”). Bache had a son, Benjamin Franklin Bache, who “followed in the journalistic footsteps of his famous grandfather.” As a youngster, Bache traveled with his grandfather to France, where he learned French and the printing trade.
Upon returning to the United States in 1785, Bache worked as a printer in his grandfather’s shop in Philadelphia. After Franklin’s death in 1790, Bache inherited the printing house. The same year, he established the General Advertiser (later the Aurora), becoming an active participant in the partisan journalism common during the early years of the nation.
Sixty years earlier, in 1731, Franklin—editor of the Pennsylvania Gazette—wrote:
. . . when Truth and Error have fair Play, the former is always an overmatch for the latter . . . That if all Printers were determin’d not to print anything till they were sure it would offend nobody, there would be very little printed.
His grandson took those words to heart. He printed articles saying George Washington wasn’t really the “father of his country.” Benjamin Franklin was the rightful father, being the only one to have signed the Declaration of Independence (1776), the Treaty of Alliance with France (1778), the Treaty of Paris (1783), and the federal Constitution (1787). Without France’s aid, Bache claimed, we would still be British colonies.
In continuing to hammer away at the Federalist takeover of government and the president’s near-religious stature, Bache published a long Thomas Paine philippic called “Letter to George Washington” (July 1796). Paine had been in Paris awaiting execution under Robespierre and had expected the intervention of Ambassador Gouverneur Morris for his release, but after seven months of incarceration he decided his fate was a reflection of Washington’s indifference.
Keep in mind Paine was one of the most recognized and reviled authors in the Western world. His popularity with commoners was so strong governments feared prosecuting him. His words, whatever their merit, carried far and wide:
And as to you, sir, [Paine wrote] treacherous in private friendship (for so you have been to me, and that in the day of danger) and a hypocrite in public life, the world will be puzzled to decide, whether you are an apostate or an impostor; whether you have abandoned good principles, or whether you ever had any.
Federalists took note of Paine’s letter—as if they could avoid it. The federal government itself was in Philadelphia, with both Congress and the Executive House of the President within walking distance of Bache’s Aurora, along with two Federalist newspapers defending the administration and attacking Bache. William Corbett—federalist editor of the Porcupine Political Censor—declared: “Your brutal attempt to blacken this character [GW’s] was all that was wanted to crown his honour and your infamy.”
In a letter to his wife Abigail, Vice President John Adams—who regarded Paine as no more than an effective propagandist and who increasingly hated Paine the longer he lived—wrote:
I think, of all Paines Productions it is the weakest and at the Sametime the most malicious.—The Man appears to me to be mad—not drunk—He has the Vanity of the Lunatick who believed himself to be Jupiter the Father of Gods & Men.
The Sedition Act of 1798
Bache applauded the victory of John Adams in the election of 1796, with Adams’s opponent Thomas Jefferson becoming Vice President. He viewed Washington’s decision not to run for a third term coming from “a consciousness that he would not be re-elected” and “to save himself the mortification and disgrace of being superceded.” Adams was a “professed aristocrat” only in theory, Bache wrote, while “Washington was one in practice.”
His appraisal did an abrupt one-eighty when Adams condemned the French for raiding American shipping in a special session of Congress, while ignoring British “depredations.” The three-man commission (the XYZ Affair) Adams sent to France to work out a diplomatic solution was rejected by the corrupt Talleyrand, the French Foreign Minister.
In June 1798—ten days after publishing a letter from Talleyrand—Bache was arrested under the yet-to-be passed Sedition Act of July 14 and was released on bail on June 29 with a trial scheduled for October. The Aurora editor had been accused of libeling the president and the Executive Government “in a manner tending to excite sedition and opposition to the laws, by sundry publication and re-publications.” The charge of libel came from Bache’s depiction of Adams as “blind, bald, crippled, toothless, and querulous.” Bach, though, died from yellow fever at age 29 before his trial began.
Others were prosecuted under the Sedition Act, including Democratic-Republican congressman from Vermont, Mathew Lyon, who wrote an essay in 1800 accusing Adams of “an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”
Luther Baldwin, National Hero
On a sunny day in July of 1798, after passage of the Sedition Act, John and Abigail Adams were returning to Massachusetts when they stopped in Newark, New Jersey for a celebration in his honor that included a 16-gun cannon salute.
Men were drinking at a tavern nearby. One of them was the pilot of a garbage scow and a former member of the Continental army, Luther Baldwin. Allegedly drunk, Luther uttered something to the effect that he didn’t care if they fired the cannon up Adams’s “arse.” The tavern owner heard the remark and reported him. “Baldwin was indicted and convicted in federal court for speaking ‘seditious words’ that defamed President Adams. He was fined $150, assessed court costs, and jailed until he paid the fine and fees.”
His arrest became a turning point in American politics. Arresting journalists and politicians was bad enough, but throwing everyday citizens in jail for an offhand remark was intolerable. His plight became the focus of articles published throughout the country, and the influence on public opinion helped elect Jefferson to the presidency a year and a half later.
The Sedition Act expired on March 3, 1801, the last day of Adams’s term. One of Jefferson’s first acts upon taking office on March 4 was to pardon Luther Baldwin and others imprisoned under the law. Included with the pardons was an apology and the cancelling of any imposed fines.
Conclusion
Parchments are no match for illicit government acts unless people get behind them, as they did for Luther.
