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  • Criminal Dissent: Prosecutions under the Alien and Sedition Acts of 1798 by Wendell Bird
  • Sara Mayeux (bio)
Keywords

Dissent, Alien and Sedition Acts, First Amendment, Law, Legal history, John Adams

Criminal Dissent: Prosecutions under the Alien and Sedition Acts of 1798. By Wendell Bird. (Cambridge, MA: Harvard University Press, 2020. Pp. 560. Cloth, $55.00.)

The debates surrounding the Alien and Sedition Acts of 1798 are a chestnut of history textbooks and a touchstone of First Amendment jurisprudence. In 1964, the Supreme Court opined, "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." Modern doctrine recognizes the right to engage in "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."1 The original debates are often presented as just that—constitutional and political debates—with the years between 1798 and 1801, when the acts expired, mined as a source of competing theories about the meaning of a free press, the limitations of federal power, and the legitimacy of partisan opposition.

The primary concern of Criminal Dissent is different: the sedition laws' ramifications for ordinary people. While also providing extensive discussion of the constitutional and political issues (including new research on responses to the Virginia and Kentucky Resolutions), Wendell Bird focuses the book mainly upon how the laws were enforced and the [End Page 132] calamitous consequences for the individuals targeted. Drawing upon trial-level federal court records, the papers of Secretary of State Thomas Pickering, and other primary sources that were either incompletely mined by, or unavailable to, earlier scholars, Bird assembles a newly comprehensive account of sedition prosecutions and deportations (whether contemplated or completed).

The headline takeaway of Criminal Dissent is that there were significantly more such prosecutions than previously tallied. Prior references typically identify about 14 Sedition Act defendants, whereas Bird identifies 51 cases targeting 126 defendants in total. Criminal Dissent also contributes nuance to the partisan divide over the acts, showing "that some prominent Federalists found those laws unconstitutional" (8) and locating two examples where Federalists were indicted (361), although these are minor exceptions that prove the rule. Overall, Bird confirms the picture of a targeted harassment campaign by the Adams administration against its Republican critics. He also argues that expansive understandings of the First Amendment were not developed solely in reaction to the 1798 episode, but rather that commentators had begun to advocate broad freedoms of speech and press in earlier years.

The meat of the book offers a meticulous recounting of individual cases. Bird emphasizes that most of the people prosecuted were poor, and some were quite obscure. The case histories call to mind an expression from twentieth-century legal scholarship: "the process is the punishment."2 Boston printer Thomas Adams was indicted in October 1798 for publishing such dreadful calumnies as the exhortation to "give your votes to such men only who will support the Constitution." Adams was never convicted or sentenced, because he never made it to trial: By May of 1799, under the duress of looming criminal charges, he had sold his newspaper and died of a longstanding illness (113–15). David Brown, a laborer and itinerant gadfly of the Federalists, was cajoled into pleading guilty for the seditious act of raising a liberty pole, which bore a placard reading in part, "downfall to the Tyrants of America … may moral virtue be the basis of civil government" (122). He spent more than two years incarcerated, in part due to his indigence: "two and a half months in county jail, his eighteen month sentence, and four more months because of inability to pay his fine or provide bond" (124–27). [End Page 133]

Along the way, Criminal Dissent furnishes snapshots of criminal punishment during the 1790s. The reader is invited to imagine court proceedings waylaid by yellow-fever outbreaks, trials presided over by judges with seemingly glaring conflicts of interest, the public–private blending and institutional improvisations of the early republic, the travails of indigent defendants without legal counsel, lengthy trips to jail on horseback in the pouring rain, and crowded, unheated jail cells where "prisoners cycled in and out … such as one...

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