Although much has been written about the Alien and Sedition Acts, one thing that is not mentioned as often as it should be is that despite the war scare of 1798, the Sedition Act passed the House very narrowly--by 44-41. (Incidentally, only four of the favorable votes came from south of the Potomac. One indicator of how unpopular the Act was in Virginia is that no less a Federalist than John Marshall, in his successful 1799 congressional campaign, made it clear that he was "not an advocate of the alien and sedition bills" and that had he been in Congress at the time he would "certainly have opposed them," thinking them "useless" and "calculated to create, unnecesarily, discontents and jealousies." This irritated most northern Federalists: Theodore Sedgwick called it "a mean & paltry electioneering trick," and Fisher Ames declared "Excuses may palliate,--future zeal in the cause may partially atone,--but his character is done for." OTOH, George Cabot thought that Marshall might redeem himself, and indulgently added that "Some allowance too should be made for the influence of the Atmosphere of Virginia..." Stanley Elkins and Eric McKitrick, *The Age of Federalism*, pp. 729-30)
So what if just two members of the House had changed their minds, and the Sedition Act had not passed? Some thoughts:
(1) Without the Sedition Act, there would probably have been no Virginia and Kentucky Resolutions. These resolutions helped provide the foundation for the states-rights ideology of the Democratic-Republican Party, and were eventually used by Southerners as justifications for nullification and secession--despite Madison's later emphatic denial that the Virginia Resolution, which he wrote, was meant to justify either.
(2) Given the closeness of the 1800 election and the unpopularity of the Act, is it possible that Adams could have been re-elected in 1800 if not for the Act?
(3) Of course even if the Act failed narrowly in the Fifth Congress in 1798, it could theoretically have been passed in the Sixth Congress, which was actually a little more Federalist. http://history.house.gov/Institution/Party-Divisions/Party-Divisions/ (This is because it was elected during the height of public support for the administration during the war scare of mid-1798.) However, by the time the Sixth Congress met in December 1799 the hysteria had eased somewhat, with the Ellsworth mission to France finally on its way, and with public opinion generally supportive of Adams' decision to send it, despite Hamiltonian opposition. I doubt that the Sixth Congress would as an original matter pass the Sedition Act, though it narrowly failed to repeal it: "The Sedition Act did in fact come up for repeal in January 1800. Marshall supported the motion for doing it, which thereby passed by a margin of two votes. But then an adroit Federalist parliamentary maneuver, an amendment replacing the repealed act with the even more obnoxious common law of seditious libel, gave Marshall no choice but to reverse himself and vote against it. The entire Republican contingent did so as well. The Sedition Act thus had to remain where it stood." Elkins and McKitrick, p. 730)
(4) Mention of the common law of seditious libel brings up another important point: Such consequences as (the very probable) "no Kentucky and Virginia resolutions" or (the much less certain) "Adams re-elected in 1800" would be negated if, after the Act failed to pass, Adams had simply decided to conduct the same prosecutions under the common law of seditious libel as he did in OTL under the Act. Had he done so, the backlash would have been as great as that which followed the Act, perhaps greater. For the Sedition Act actually liberalized the common law of seditious libel--to a greater extent than the much-praised Fox's Libel Act did in England. As Leonard Levy has written, "It [the Sedition Act] was...the very epitome of libertarian thought since the time of Zenger's case. The Sedition Act incorporated everything that the libertarians had demanded; a requirement that criminal intent be shown; the power of the jury to decide whether the accused's statement was libelous as a matter of law as well as of fact; and truth as a defense, an innovation not accepted in England until 1843." *The Emergence of a Free Press* (New York: Oxford UP 1985), p. 297. Of course, just how much good all these procedural safeguards did is suggested by the fact that "Only one verdict of 'not guilty' was returned in the numerous prosecutions under the Sedition Act..." Levy, p. 128
Now, to the Democratic-Republicans it was irrelevant that the Sedition Act was better than the common law of seditious libel because, they said, (1) the First Amendment prohibited *either* a federal Sedition Act or a federal common law of seditious libel, and (2) in any event there was no such thing as a federal common law crime. Both of these are established constitutional doctrines today, but they were far from being so in 1798. It was not until fourteen years later, in *United States v. Hudson & Goodwin,* 11 US (7 Cranch) 32, 3 L.Ed 250 (1812) http://laws.findlaw.com/us/11/32.html that the US Supreme Court held that were no federal common law crimes, and while as a practical matter this doctrine is now firmly established, some legal scholars still doubt that it was historically justified. They argue that when courts were given jurisdiction in the Judiciary Act of all offenses against the laws of the United States, the "laws of the United States" included the common law. Two ancient hornbooks in my possession from law school days--Wright's *Law of Federal Courts* (2d edition) and La Fave and Scott's *Criminal Law*--both say that *Hudson and Goodwin* probably misinterpreted the Judiciary Act. In fact, there *were* a few prosecutions for seditious libel brought in federal courts in 1797-8, shortly before the passage of the Sedition Act. (One issue here is whether there is any significance in the fact that technically speaking the First Amendment only prohibited *Congress*, not the courts, from abridging the freedom of the press. So even if one takes for granted that the Sedition Act violated the First Amendment--something disputed by those who argued that the First Amendment merely enacted the Blackstonian concept of "no prior restraints" [1]--it would not necessarily follow that federal common law prosecutions for seditious libel would do so.)
So I would not rule out the possibility that had the Sedition Act failed, Adams would have used the common law of seditious libel to equally disastrous effect. Indeed, it is something of a mystery, given the apparent availability of this remedy, why the Federalists did pass the Act. Probably the most important factors were (1) a desire to make it *clear* that seditious libel was illegal under federal law--remember that nobody doubted the right of *state* courts to try seditious libel--and to focus political attention on the "Jacobin" menace, and (2) the influence of the "Two Acts" in England (the Federalists paid close attention to English law and practice).
[1] "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no *previous* restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution [of 1688], is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects." 4 W. Blackstone's Commentaries on the Laws of England, chapter 11. http://press-pubs.uchicago.edu/founders/documents/amendI_speechs4.html
So what if just two members of the House had changed their minds, and the Sedition Act had not passed? Some thoughts:
(1) Without the Sedition Act, there would probably have been no Virginia and Kentucky Resolutions. These resolutions helped provide the foundation for the states-rights ideology of the Democratic-Republican Party, and were eventually used by Southerners as justifications for nullification and secession--despite Madison's later emphatic denial that the Virginia Resolution, which he wrote, was meant to justify either.
(2) Given the closeness of the 1800 election and the unpopularity of the Act, is it possible that Adams could have been re-elected in 1800 if not for the Act?
(3) Of course even if the Act failed narrowly in the Fifth Congress in 1798, it could theoretically have been passed in the Sixth Congress, which was actually a little more Federalist. http://history.house.gov/Institution/Party-Divisions/Party-Divisions/ (This is because it was elected during the height of public support for the administration during the war scare of mid-1798.) However, by the time the Sixth Congress met in December 1799 the hysteria had eased somewhat, with the Ellsworth mission to France finally on its way, and with public opinion generally supportive of Adams' decision to send it, despite Hamiltonian opposition. I doubt that the Sixth Congress would as an original matter pass the Sedition Act, though it narrowly failed to repeal it: "The Sedition Act did in fact come up for repeal in January 1800. Marshall supported the motion for doing it, which thereby passed by a margin of two votes. But then an adroit Federalist parliamentary maneuver, an amendment replacing the repealed act with the even more obnoxious common law of seditious libel, gave Marshall no choice but to reverse himself and vote against it. The entire Republican contingent did so as well. The Sedition Act thus had to remain where it stood." Elkins and McKitrick, p. 730)
(4) Mention of the common law of seditious libel brings up another important point: Such consequences as (the very probable) "no Kentucky and Virginia resolutions" or (the much less certain) "Adams re-elected in 1800" would be negated if, after the Act failed to pass, Adams had simply decided to conduct the same prosecutions under the common law of seditious libel as he did in OTL under the Act. Had he done so, the backlash would have been as great as that which followed the Act, perhaps greater. For the Sedition Act actually liberalized the common law of seditious libel--to a greater extent than the much-praised Fox's Libel Act did in England. As Leonard Levy has written, "It [the Sedition Act] was...the very epitome of libertarian thought since the time of Zenger's case. The Sedition Act incorporated everything that the libertarians had demanded; a requirement that criminal intent be shown; the power of the jury to decide whether the accused's statement was libelous as a matter of law as well as of fact; and truth as a defense, an innovation not accepted in England until 1843." *The Emergence of a Free Press* (New York: Oxford UP 1985), p. 297. Of course, just how much good all these procedural safeguards did is suggested by the fact that "Only one verdict of 'not guilty' was returned in the numerous prosecutions under the Sedition Act..." Levy, p. 128
Now, to the Democratic-Republicans it was irrelevant that the Sedition Act was better than the common law of seditious libel because, they said, (1) the First Amendment prohibited *either* a federal Sedition Act or a federal common law of seditious libel, and (2) in any event there was no such thing as a federal common law crime. Both of these are established constitutional doctrines today, but they were far from being so in 1798. It was not until fourteen years later, in *United States v. Hudson & Goodwin,* 11 US (7 Cranch) 32, 3 L.Ed 250 (1812) http://laws.findlaw.com/us/11/32.html that the US Supreme Court held that were no federal common law crimes, and while as a practical matter this doctrine is now firmly established, some legal scholars still doubt that it was historically justified. They argue that when courts were given jurisdiction in the Judiciary Act of all offenses against the laws of the United States, the "laws of the United States" included the common law. Two ancient hornbooks in my possession from law school days--Wright's *Law of Federal Courts* (2d edition) and La Fave and Scott's *Criminal Law*--both say that *Hudson and Goodwin* probably misinterpreted the Judiciary Act. In fact, there *were* a few prosecutions for seditious libel brought in federal courts in 1797-8, shortly before the passage of the Sedition Act. (One issue here is whether there is any significance in the fact that technically speaking the First Amendment only prohibited *Congress*, not the courts, from abridging the freedom of the press. So even if one takes for granted that the Sedition Act violated the First Amendment--something disputed by those who argued that the First Amendment merely enacted the Blackstonian concept of "no prior restraints" [1]--it would not necessarily follow that federal common law prosecutions for seditious libel would do so.)
So I would not rule out the possibility that had the Sedition Act failed, Adams would have used the common law of seditious libel to equally disastrous effect. Indeed, it is something of a mystery, given the apparent availability of this remedy, why the Federalists did pass the Act. Probably the most important factors were (1) a desire to make it *clear* that seditious libel was illegal under federal law--remember that nobody doubted the right of *state* courts to try seditious libel--and to focus political attention on the "Jacobin" menace, and (2) the influence of the "Two Acts" in England (the Federalists paid close attention to English law and practice).
[1] "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no *previous* restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution [of 1688], is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects." 4 W. Blackstone's Commentaries on the Laws of England, chapter 11. http://press-pubs.uchicago.edu/founders/documents/amendI_speechs4.html