



























Granahan Manuscript: Law Journal: Volume 12


Brandeis University Law Journal            2024-2025, Volume 12 

The Sedition Act of 1798 as a Federalist Legal Instrument 
Jack Granahan1 

The Sedition Act of 1798, enacted alongside the other 
Federalist-proposed Alien and Sedition Acts, stands as the 
most egregious violation of the First Amendment’s Free Speech 
and Free Press Clauses in American history. This law, passed 
by a predominantly Federalist Congress and signed into law by 
President John Adams, criminalized the uttering and 
publishing of criticism of the federal government.2 This paper 
aims to demonstrate that the Sedition Act constituted more than 
just a national security measure that the Federalists supported 
on the grounds of empowering a strong, central government. 
Rather, as shown by the motives of the law described by 
Federalist politicians and the biased trial proceedings of those 
charged under the law, the Sedition Act was a calculated act of 
legal instrumentalism that sought to empower the Federalists 
by punishing anti-Federalist dissenters. 
 

I. Introduction 
 The American political climate of the late 1790s was 
defined by ideological conflict: Federalists supported a 
centralized federal government, while Democratic-Republicans 
supported a decentralized, agrarian vision.3 In 1797, Federalist 
John Adams was inaugurated as president, allowing the 
Federalists to aggressively pursue their agenda.4 This included 
pushing for a war with France in the wake of the XYZ Affair, 
which saw the French government extort bribes from American 
diplomats as a prerequisite for negotiation. The fiercely 
anti-authoritarian Democratic-Republicans, who largely 
sympathized with the French republican government, opposed 

4 Douglas Bradburn, A Clamor in the Public Mind: Opposition to the Alien 
and Sedition Acts, 65 Wm. & Mary Q. 565 (2008). 

3 Gérard Hugues, Norms for a Misuse of Authority: the Alien and Sedition 
Acts, 74 Rev. Fr. d'Études Am. 93, 95 (1997).  

2 An Act for the Punishment of Certain Crimes Against the United States, 
ch. 9, 1 Stat. 112 (1790). 

1 Brandeis University, Class of 2026. 

 
 

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this war. As a consequence of this anti-war sentiment and other 
criticisms of the Adams administration, Adams and the 
Federalist majority in both houses of Congress sought to 
reduce anti-Federalist political activity through legislative 
means.5  

In the summer of 1798, this effort came to fruition with 
the implementation of the Alien and Sedition Acts. In addition 
to three acts that regulated immigration and citizenship law, 
this collection of legislation concluded with the Sedition Act. 
Among other provisions, this statute made “writing, printing, 
uttering or publishing any false, scandalous and malicious 
writing or writings against the government of the United 
States” a crime punishable by a fine of up to $2,000 (equivalent 
to over $51,000 in 2024) and up to two years in prison.6 This 
paper argues that the Sedition Act was based on an 
instrumentalist interpretation of the First Amendment meant to 
empower the Federalists by suppressing political dissent by the 
Democratic-Republicans. 

Legal instrumentalism refers to the commandeering of 
specific interpretations and applications of legal texts as 
“instrument[s] of social change.”7 The Alien and Sedition Acts 
conform to this practice. The first three parts of the act, which 
pertain to immigration and naturalization, constitute a clear 
effort to combat the “French peril” alleged by many Federalists 
following the XYZ Affair.8 Meanwhile, the Sedition Act was 
designed to crack down on Democratic-Republican opposition 
to, among other policies, the Federalists’ march towards a war 
with France. The Sedition Act and its accompanying 
interpretation of the First Amendment was used by the 
Federalists as a legal instrument against the 
Democratic-Republicans. This use of legal instrumentalism can 

8 Hugues, supra note 3 at 95-96. 

7 Steven Quevedo, Formalist and Instrumentalist Legal Reasoning and 
Legal Theory, 73 Ca. Law Rev. 119, 125 (1985).  

6 An Act, supra note 2. 
5 Id. at 565-566. 

 
 

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be illustrated through Federalist attempts to justify the 
subversion of the Constitution, Democratic-Republican 
explanations of the law’s implications, and the individuals who 
would be prosecuted for sedition. 

 
II. Sedition and Freedom of Speech 

Democratic-Republicans slammed the Sedition Act as a 
blatant violation of the First Amendment to the Constitution, 
which states that “Congress shall make no law […] abridging 
the freedom of speech, or of the press.”9 New York 
Representative Edward Livingston declared that the Sedition 
Act was “an abridgement of the liberty of the press, which the 
Constitution has said shall not be abridged,” and that the proper 
constitutional response to defamatory criticism of the 
government is “to disprove the fact” rather than “to prosecute 
the man who makes the charge.”10 In other words, seditious 
content must be met with correction instead of prosecution. 

It was also evident to the Democratic-Republicans even 
before passage that the Sedition Act was an explicit attempt by 
the Federalists to clamp down on Democratic-Republican 
speech and presses. While the law worked its way through 
Congress, Vice President Thomas Jefferson, an unabashed 
Democratic-Republican, stated that “the object of [the Sedition 
Act] is the suppression of the [Democratic-Republican] 
presses.”11 North Carolina Representative Nathaniel Macon 
attacked the bill on the House floor, proclaiming that it would 
“produce more uneasiness, more irritation, than any act which 
ever passed the Legislature of the Union.”12 Several counties in 
northern Virginia, a Democratic-Republican stronghold known 
for its frequent public meetings at which citizens freely 

12 Walter Berns, Freedom of the Press and the Alien and Sedition Laws, 
1970 Sup. Ct. Rev. 109, 121 (1970). 

11 Id. at 18. 

10 Wendell Bird, Criminal Dissent: Prosecutions Under the Alien and 
Sedition Acts of 1798 (2020). 

9 U.S. Const. amend. I.  

 
 

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criticized the federal government, issued official resolutions 
condemning the Sedition Act. Some of these resolutions 
“mimicked the laudatory petitions of the Federalists and sent 
their complaints directly to Adams.”13 

Federalists took different stances on the applicability of 
the First Amendment to the Sedition Act. Many Federalist legal 
scholars asserted that, due to the importance of the journalistic 
integrity of newspapers in the revolutionary effort for 
American independence, government officials were entitled to 
freedom against “slanderous commentary in the press.”14 Some 
Federalist judges argued that the Constitution did not apply to 
wartime legislation and that English common law could be 
used as a precedent for American law without the First 
Amendment. This led some to turn towards the lengthy history 
of English common law statutes prohibiting “seditious libels” 
and “any dangerous or offensive writings” to preserve, in the 
words of Sir William Blackstone, “peace and good order, […] 
government and religion.”15 

Additionally, a common Federalist argument supporting 
the law postulated that defaming the government during a 
period of such fierce hostilities with France was akin to aiding 
the enemy during wartime.16 Meanwhile, Connecticut 
Representative Samuel Dana focused primarily on the 
defamatory nature of seditious speech, arguing that “the liberty 
of uttering malicious falsehood” does not exist in the 
Constitution.17 

These arguments may initially suggest that the impetus 
for the passage of the Sedition Act was grounded in sensible 
governance. However, even some arguments posed by 
supporters of the law challenge this interpretation, as they 

17 Bird, supra note 10 at 46. 

16 Ralph Frasca, “Treasonable Expressions”: James Bell and the Emerging 
Legal Right to Criticize, 86 Pa. Hist. 67, 73 (2019). 

15 Bird, supra note 10 at 42. 
14 Hugues, supra note 3 at 94. 
13 Bradburn, supra note 4 at 569. 

 
 

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demonstrate that the law was an attempt to suppress 
Democratic-Republican newspapers. Connecticut 
Representative John Allen gave the first speech in favor of the 
Sedition Act while it was still in Congress. He referred to the 
Democratic-Republicans as “the Jacobins of our country” who 
sought to use “all the presses in the nation” as a means of 
overthrowing the federal government, urging the Federalists to 
“wrest it away from them.”18 Numerous Federalist supporters 
of the law also referenced President George Washington’s 1793 
statement that partisan newspapers (particularly those 
associated with Democratic-Republicans) were “stuffing their 
papers with scurrility and malignant declamation.”19  

The Gazette of the United States, a prominent Federalist 
newspaper, regularly characterized Democratic-Republican 
newspapers as “nest[s] of traitors” and “set[s] of revolters to 
France,” calling for those running these newspapers to be 
prosecuted to the fullest extent of the law.20 These Federalist 
condemnations of Democratic-Republican newspapers are 
indicative of the Sedition Act’s purpose as a vehicle for the 
suppression of the Democratic-Republican press. 

 
III. Common Law Sedition Prosecutions 

Even more damning against the Federalists, however, 
was the political affiliation of the individuals who were 
charged and prosecuted under the Sedition Act. The accused 
were all associated with Democratic-Republican publications 
or were prominent political dissidents who opposed the Adams 
administration.21 Before the passage of the Sedition Act, 
several Democratic-Republican dissidents had been charged 
with seditious libel under the common law. This followed the 
aforementioned trend of Federalist judges adhering to 
Blackstone’s common law rather than the Constitution during 

21 Bird, supra note 10 at 385. 
20 Id. at 33. 
19 Id. at 18. 
18 Id. at 45. 

 
 

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times of war. The most notable of these common law sedition 
prosecutions was that of Benjamin Franklin Bache, the 
grandson of the eponymous founding father, as well as the 
founder and editor-in-chief of the Philadelphia-based Aurora 
General Advertiser.22  

After its establishment, the Aurora quickly became a 
prominent dissident newspaper. Vice President Jefferson had 
previously stated that Bache’s newspaper had the potential to 
become the primary “[Democratic-]Republican vehicle of news 
established between the seat of government and all it’s [sic] 
parts.”23A relentless advocate of a free press, Bache criticized 
attempts by the Federalist-dominated Congress to “muzzle the 
press” by restricting reports of a physical attack on Vermont 
representative Matthew Lyon, a Democratic-Republican, by 
Connecticut representative Roger Griswold, a Federalist.24 This 
advocacy on Lyon’s behalf made Bache a key target of the 
Federalist crackdown on Democratic-Republican speech.  

One source of Bache’s contempt for President Adams 
came from his continued support of the Jay Treaty, signed in 
1795 by President Washington, which strengthened ties 
between the U.S. and monarchist Great Britain at the expense 
of relations with republican France. Bache slammed President 
Adams in the Aurora for his support of the treaty, rhetorically 
asking: “How has [Adams] protected liberty? By writing in 
favor of monarchy and encouraging the suppression of the right 
of free opinion. How has he patronized religion? By promoting 
war.”25 After the Aurora repudiated Adams, Bache was charged 
at the behest of Secretary of State Timothy Pickering, a devout 
Federalist, with “libeling the President and the Executive 
Government, in a manner tending to excite sedition and 
opposition to the laws, by sundry publication and 

25 Frasca, supra note 16 at 68. 
24 Id. at 71. 
23 Bird, supra note 10 at 58. 
22 Frasca, supra note 16 at 68. 

 
 

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re-publication.”26 Mere days before his case was set to go to 
trial, Bache fell victim to Philadelphia’s yellow fever epidemic; 
he died prematurely, denying Federalist judge John Sloss 
Hobart the ability to try him for speaking out against the 
Federalist government.27 

 
IV. The Lyon Trial 

The first individual to be criminally charged under the 
Sedition Act was Congressman Lyon of Vermont in the 
summer of 1798.28 Lyon, an Irish-born immigrant, had 
previously faced fierce xenophobia from Federalists in 
Congress on account of his ethnic background, culminating in 
the cane attack on Lyon by Congressman Griswold.29 Lyon was 
also the editor-in-chief of The Scourge of Aristocracy, a 
newspaper intended to promote “the [Democratic-]Republican 
interest.”30 This put a target on Lyon’s back, and in July of 
1798, the Federalists found their excuse to charge Lyon with 
seditious libel.  

During this time, Spooner’s Vermont Journal published 
a letter written by Lyon that lambasted President Adams for 
maladministration. This letter was written and sent to the press 
two weeks before the passage of the Sedition Act, so charging 
Lyon with seditious libel would arguably violate the 
constitutional prohibition of ex post facto criminal charges (that 
is, a criminal charge levied against a defendant for actions 
committed prior to the criminalization of said act).31 
Nevertheless, Lyon was indicted under the Sedition Act in 
October of 1798. The indictment accused Lyon of attempting to 
“stir up sedition, and to bring the president and government of 
the United States into contempt,” citing Lyon’s statement that 

31 Id. at 91. 
30 Bird, supra note 10 at 89. 
29 Id. at 580. 
28 Bradburn, supra note 4 at 580. 
27 Hugues, supra note 3 at 97. 
26 Bird, supra note 10 at 67. 

 
 

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condemned the President’s “continual grasp for power, […] 
unbounded thirst for ridiculous pomp, foolish adulation, and 
selfish avarice.”32 

Lyon’s trial exemplified a kangaroo court. 
Federalist-influenced Supreme Court associate justice William 
Paterson presided over the trial, and his conduct was fraught 
with judicial irregularities. Paterson personally disqualified 
jurors whom he believed viewed the Sedition Act as an 
unconstitutional statute, and even instructed the jury to convict 
Lyon on the grounds that the defendant had admitted to writing 
the supposedly seditious letter.33 Paterson’s instructions to the 
jury required them to convict Lyon if it was determined that 
Lyon’s letter portrayed President Adams “ odious or 
contemptible,” prohibiting the jury from assessing the validity 
of Lyon’s criticisms.34 Most glaringly, Paterson specifically 
invalidated Lyon’s defense that the law he was being charged 
under violated the First Amendment. According to Paterson, 
the constitutionality of the Sedition Act had already been 
settled by Congress, and “the guilt consists in the publication” 
and the publication exclusively.35 Therefore, it was no surprise 
when Lyon was found guilty of seditious libel. He was ordered 
to pay a fine and legal costs totaling $1,060.96 (equivalent to 
over $27,000 in 2024) and sentenced to four months in prison, 
with this incarceration to continue until the fine and legal fees 
were paid.36 

In November of 1798, Lyon ran for reelection and 
became the first and only individual to win a congressional 
election while imprisoned.37 Lyon was accordingly designated 
by a Democratic-Republican newspaper from Connecticut as 
“the first martyr to the cause of liberty, under this law [the 

37 Bradburn, supra note 4 at 580. 
36 Id. at 95. 
35 Bird, supra note 10 at 94. 
34 Lyon’s Case, supra note 32. 
33 Hugues, supra note 3 at  98. 
32 Lyon’s Case, 15 F. Cas. 1183, (C.C.D. Vt. 1798). 

 
 

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Sedition Act].”38 Lyon’s reelection was hailed as a victory for 
the Democratic-Republican Party, but it was perhaps even 
more important as a demonstration of backlash against the 
draconian Sedition Act and the dubiously impartial prosecution 
of Lyon. From the blatant hatred faced by Lyon for his Irish 
heritage (coupled with endemic anti-French xenophobia), to the 
ex post facto indictment of Lyon, to Justice Paterson’s 
politically biased charge of the jury without consideration for 
Lyon’s argument of constitutionality, the congressman’s show 
trial was indicative of the Sedition Act’s role as an instrument 
designed to infringe upon the freedoms of speech and the press 
held by Democratic-Republicans. 
 

V. The Final Wave of Sedition Prosecutions 
Following a lengthy hiatus in enforcing the Sedition 

Act, a new wave of prosecutions took place between 1799 and 
1800, this time focusing almost exclusively on 
Democratic-Republican newspaper editors. Due to 
Congressman Lyon’s continued Democratic-Republican 
advocacy as editor of The Scourge of Aristocracy, he would 
once again be charged during this campaign of indictments, 
though the charges against him would never be served, as he 
left Vermont after his retirement from Congress.39 Another 
victim of this return of the Sedition Act was 
Democratic-Republican stalwart Anthony Haswell, the 
editor-in-chief of the Vermont Gazette. Haswell was charged 
with seditious libel in October of 1799, with his indictment 
citing his self-published defense of the previously imprisoned 
Lyon, in which Haswell stated that Lyon was being held “by 
the oppressive hand of usurped power in a loathsome prison, 
deprived almost of the right of reason, and suffering all the 
indignities which can be heaped upon him by a hard-hearted 

39 Id. at 284-285. 
38 Bird, supra note 10 at 97. 

 
 

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savage.”40 In essence, Haswell described Lyon as a political 
prisoner of a tyrannical Federalist regime. 

In the same publication, Haswell castigated President 
Adams for supporting the pro-British Jay Treaty, claiming that 
“the administration publicly notified that Tories, men who had 
fought against our independence, who had shared in the 
desolation of our homes, and the abuse of our wives and 
daughters, were men who were worthy of the confidence of the 
government.”41 The demonstrably prejudiced Justice Paterson 
presided over Haswell’s trial, refusing to accommodate the 
time necessary for the defendant to call witnesses and even 
referring to him as “a seditious libeller of your government, a 
convict justly suffering the penalty of a mild law” in the 
presence of the jury.42 Needless to say, Haswell was found 
guilty and sentenced to two months in prison and a $200 fine 
(equivalent to over $5,000 in 2024). 

 Despite the relatively short length of the sentence, it 
still took its toll on Haswell; two months of inactivity left the 
Vermont Gazette bankrupt, and nine months after his release 
from prison, Haswell stated, “I have been reduced to distress, 
and almost to penury.”43 This was far from an accident. The 
prosecution of a Democratic-Republican newspaper editor for 
criticizing a government agent’s treatment of an imprisoned 
congressperson, especially before a judge as politically skewed 
as Paterson, likely had a specific intended impact: the 
elimination of that individual as a threat to the Federalist 
administration in power. 

The Federalist strategy of targeting outspoken 
Democratic-Republican figures continued with the prosecution 
of Democratic-Republican lawyer Thomas Cooper in 
Pennsylvania. Cooper had previously fled England due to 

43 Id. at 281. 
42 Bird, supra note 10 at 280. 
41 Id. 
40 United States v. Haswell, 26 F. Cas. 218 (C.C.D. Vt. 1800). 

 
 

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unresolved sedition charges.44 Cooper’s experience with 
newspaper editing started and ended with a two-month-long 
stint as an editor for the Sunbury and Northumberland 
Gazette.45 Still, this was more than enough time for Cooper to 
find himself in hot water with the Federalists. In a leaflet 
distributed in Northumberland County, Pennsylvania in 
November of 1799, Cooper lamented how the Adams 
administration had left the US “saddled with the expense of a 
permanent navy” and “threatened [...] with the existence of a 
standing army,” and commented that the nation’s credit was 
“reduced so low as to borrow money at eight percent in time of 
peace, while the unnecessary violence of official expressions 
might justly have provoked a war.”46 Arguably the most 
innocuous statement to result in a criminal charge under the 
Sedition Act, Cooper’s criticism of President Adams was 
nevertheless deemed libelous enough to have the lawyer 
indicted. In a trial heard by Supreme Court Associate Justice 
and staunch Federalist Samuel Chase, Cooper was forbidden 
from having the appropriate witnesses for his argument 
subpoenaed, leaving him unable to call any witnesses in his 
defense.47 Additionally, Chase told the jury that the 
criminalization of supposedly seditious press “is necessary to 
the peace and welfare of this country,” ordering the jurors to 
render a guilty verdict if Cooper had published the pamphlet 
and did so with the intent to defame (both of which Cooper had 
admitted to).48 Cooper was convicted of seditious libel, 
receiving an unusually harsh sentence of six months in prison 
and a $400 fine (equivalent to over $10,000 in 2024). This 
egregious punishment, along with the fierce repudiation of 
jurors who did not follow his strict procedural guidelines, was 

48 Id. at 298-299. 
47 Bird, supra note 10 at 296. 
46 United States v. Cooper, 25 F. Cas. 631 (C.C.D. Pa. 1800). 
45 Id. at 293. 
44 Id. at 291-292. 

 
 

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one of many demonstrations of Justice Chase’s explicit 
Federalist bias–a staple of Sedition Act prosecutions.49 

The penultimate indictment under the Sedition Act was 
that of James T. Callender, a prominent 
Democratic-Republican writer and contributor to the Richmond 
Examiner. In early 1800, Callender published The Prospect 
Before Us, a book in which he wrote that the “reign of Mr. 
Adams has been one continued tempest of malignant passions,” 
describing the “grand object” of the Adams administration as 
“to exasperate the rage of contending parties” and “to 
calumniate and destroy every man who differs from his 
opinions.”50 Callender had previously drawn criticism from 
Federalist publications for referring to President Adams as a 
“hoary headed incendiary” and former President Washington as 
a “venal poltroon” (a combination of archaic terms describing a 
coward who is susceptible to corruption and bribery).51 
Consequently, Callender was indicted on seditious libel 
charges, and once again, presiding Justice Chase issued a 
warrant for the writer’s arrest.52  

As in previous trials heard by Chase, the defendant was 
railroaded. Utilizing common law libel standards, Chase 
charged that Callender could only be acquitted if he proved his 
condemnation of Adams as an aristocrat and an actor for 
British interests to be factual. In the judge’s words, “You must 
prove both these points, or you prove nothing.”53 When 
Callender’s attorney attempted to argue that the Sedition Act 
infringed upon the defendant’s First Amendment rights, Chase 
reportedly said that “it is not competent to the jury to decide on 
this point.”54 Yet again, a guilty verdict for seditious libel was 
produced; Callender received a nine-month prison sentence and 

54 Bird, supra note 10 at 308. 
53 United States v. Callender, supra note 50.  
52 Bird, supra note 10 at 306. 
51 Berns, supra note 12 at 121. 
50 United States v. Callender, 25 F. Cas. 239 (C.C.D. Va. 1800). 
49 United States v. Cooper, supra note 46. 

 
 

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a $200 fine. Following the Democratic-Republican takeover of 
Congress, Chase would be unsuccessfully impeached in 1804 
for showing bias during jury selection and courtroom 
procedure, even after his repeated instances of prejudiced 
conduct in seditious libel cases.55 

 

VI. Conclusion 
In total, thirty-nine individuals, all 

Democratic-Republicans, were criminally indicted for violating 
the Sedition Act between 1798 and 1800.56 These defendants 
included newspaper editors, members of Congress, and other 
prominent Democratic-Republican figures. Virtually all of 
these cases shared common features. The vast majority were 
presided over by Federalist-appointed judges, often with 
political biases too severe to overlook. Most of these judges 
rejected any arguments questioning the constitutionality of the 
law itself. Many were also arguably tainted by xenophobic 
sentiments, be they against the Irish, the French, or other 
groups. It is difficult to ignore the evidence that the Sedition 
Act was a legal instrument of the Federalists, with the specific 
goal of using either a misinterpretation or an outright rejection 
of the First Amendment to disenfranchise their political 
opponents. 

Yet, the repugnance of the Sedition Act still succeeded 
as an exercise of what happens when the unalienable is 
alienated; that is, when an erroneous interpretation of 
constitutional rights is weaponized by a political faction as a 
legal tool. Following the historic Democratic-Republican 
victory in the 1800 presidential and congressional elections, the 
federal government allowed the Sedition Act to expire.57 This 
raises the question: did the Democratic-Republican revolution 
in Congress usher in the demise of the Sedition Act? Or 
alternatively, did Democratic-Republican commitment to the 

57 Id. at 368. 
56 Id. at 385. 
55 Id. at 308-312. 

 
 

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First Amendment in the face of Federalist revisionism cause 
the meteoric rise of the former’s party? If the latter answer is 
the case, then surely a similar fall from political power would 
occur among any group that were to create a similar restriction 
of freedom of speech and press today. 

 
 

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