The American Way… Sedition 

 by Jack R. Johnson 12.2022

The Confederate flag’s prominence in the Capitol riots of January 6th comes as no surprise to those who know its history: Since its debut during the Civil War, the Confederate battle flag has been flown regularly by white insurrectionists and reactionaries. Inevitably, it is associated with crimes like insurrection and sedition which was the charge leveled against eye-patched Stewart Rhodes, founder of the Oath Keepers in connection with the U.S. Capitol attack; bringing that history full circle. 

A charge of sedition or seditious conspiracy is relatively rare in the modern era, of course, but that’s not for lack of trying.

Way back at the founding of our country, America was awash with charges of sedition. It was a time of intense partisan conflict, before the norms of peaceful transfer of power were established, and there was a much weaker understanding of First Amendment rights.

In 1798, the Adams administration passed The Alien and Sedition Acts, that made it a crime for American citizens to "print, utter, or publish...any false, scandalous, and malicious writing" about the government; it also tightened the requirements for citizenship in the new country. Since the Democratic-Republican party was typically favored by new citizens, the laws were designed to suppress their turnout. The only journalists prosecuted under the Sedition Act were editors of Democratic-Republican newspapers. Luckily, the law did not stand. Adams and the Federalists were defeated in the 1800 election, and Thomas Jefferson and the victorious Democratic-Republicans allowed the law to expire in 1802.

But “sedition” remained a potent concept. In a perverse twist, it was increasingly used against abolitionists, forcing them to return runaway slaves, and to block efforts by African-Americans to challenge slavery and white supremacy. The passage of the Fugitive Slave Act of 1850 was meant to force free states to return runaway slaves. One of the few prosecuted incidents of seditious treason under this law was the so-called Christiana Resistance.  

Shortly after the act was passed, Edward Gorsuch, a Maryland farmer went in search of four slaves he suspected had robbed him and escaped to Christiana in Lancaster County, Pennsylvania. Christiana had become a refuge for fugitive slaves and freed men. Gorsuch obtained warrants of arrest under the Fugitive Slave Act, and tried to collect his runaways from the settlement.

He met armed resistance from a small band of Blacks, who were just as determined not to let one of their own be taken back into slavery. A freed Black man named William Parker led the resistance, assisted by a white Quaker, Elijah Lewis; and his friend, Castner Hanway.

Edward Gorsuch appeared at first to be relenting, but then he abruptly changed his mind and, according to William Parker’s account in the Atlantic Monthly, said, "I’ve not had my breakfast. My property I’ll have, or eat my breakfast in hell."

In the ensuing melee, Edward Gorsuch was killed and his son, Dickinson Gorsuch, seriously wounded. 

In the aftermath, 37 African Americans and one white man were arrested and charged with seditious treason under the provisions of the Fugitive Slave Law. The Quaker farmer Castner Hanway was acquitted by the jury after 15 minutes of deliberation. The prosecutor then withdrew the other charges, as it was apparent that the charge of treason could hardly be satisfied. The defense pointed out the absurdity of trying a group of poorly armed Quaker farmers for somehow levying war against the United States. The acquittal proved pivotal in the lead up to the Civil War.

Ironically, the charge of sedition would also be used against Southerners who gave speeches questioning the authority of the federal government, and later, when 11 Southern slave-holding states decided to secede and take up arms against the United States.

To many historians, the storming of the Capitol on Wednesday, January 6, 2021 recalled a very specific history: the many white supremacist attacks on Black voting rights and legitimately elected governments during Reconstruction.  The Colfax massacre of 1872, the so called New Orleans riot a few years earlier, and 1898 coup d’état in Wilmington, North Carolina were part of a continuing effort to overthrow legitimately elected biracial governments.

According to the New York Times, “There were numerous such episodes of violent white supremacist ‘redemption’ across the South, many of which have only begun to be recounted honestly. And that historical echo was underlined by the spectacle of men with Confederate flags parading through the halls of the Capitol — a sight, many noted, that would have been unthinkable during the actual Civil War.”

“When people say this doesn’t happen in America, they reveal their idealism, but also their ignorance,” said Gregory P. Downs, a historian at the University of California, Davis, who studies Reconstruction. “It has happened before. And it can happen again.”

Indeed, it has happened again. Two more seditious conspiracy trials — one involving more Oath Keepers and the other a group of Proud Boys — are set to start in the coming weeks. The outcome of those trials may be an echo of where we have been, as much as where we are going.