Forty-seven Republicans in the United States Senate caused an uproar this week when they sent an "open letter" to the people running Iran's government. This action was roundly condemned, both here and abroad, for being (at the very least) undiplomatic in the extreme. The Iranian foreign minister dismissed it as a cheap attempt at propaganda, which is to date possibly the most poignant description of the letter. After a few days, even some Republican senators who signed the letter were beginning to admit that it probably hadn't been a good idea.

Democrats were livid, and they had every right to be. This letter steps so far over the bounds of acceptable behavior in American politics as to be breathtaking. "Imagine," Democrats cried, "what Republicans would have said about us if we had pulled such a stunt and sent a letter to Saddam Hussein, just before George W. Bush invaded Iraq!" This is an excellent and valid point -- the words "traitor" and "treason" would likely have been prominently used, should such a thing have happened.

Some pundits on the Democratic side even suggested that the 47 senators be tried for violating the Logan Act, which seems to forbid unofficial attempts to influence foreign governments and official American foreign policy. The pertinent text of the Logan Act states:

Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

That's pretty specific, and it's easy to see how it could indeed be interpreted against the Republican senators. They openly carried on correspondence with a foreign government, and their intent was indeed to influence them in relation to a controversy with the United States.

But those clamoring for half of the Senate to be "brought to justice" should really think twice about what they're proposing. The history of the Logan Act is one of severe partisanship, and the constitutionality of the law is highly questionable. It has never been tested in court, leaving this question unanswered. Only one indictment was ever brought under the act, and that was in 1803, four years after it passed. The indictment was never followed up upon, however, so we have zero court cases from history to examine.

To understand this history means reaching back to one of the most polarized political periods America has ever gone through, the 1790s. President Washington tried his hardest to get America to forswear political "factions" (there were no true political parties back then), but he was unsuccessful in his attempts at comity. The Federalists and the Antifederalists were at each other's throats, no matter what General Washington had to say about things. When Washington stepped down from the presidency, he was replaced by Federalist John Adams, after the election of 1796. The election of 1800 was called the "Revolution of 1800," as the Federalists were thrown out and the Antifederalist Thomas Jefferson took over. During this period, the factional fighting was fierce.

Part of the fight was over foreign policy. The French Revolution took place right when America's constitutional government was created, and the Antifederalists were seen as sympathetic to revolutionary France, while the Federalists were drawn closer to Great Britain. When France and Britain went to war in 1792, the United States was caught in the middle. We had no navy whatsoever (we had gotten rid of our last navy ship in 1785), and so American shipping was at the whim of the two great European powers, who were at war. America tried to declare itself neutral, but suffered from both sides capturing our ships and our sailors.

America and Britain signed a treaty (the Jay Treaty) in 1795, which was supposed to stop the British deprivations on our shipping (which it didn't, they would continue through the War of 1812). This treaty was negotiated by a Federalist, John Jay, and sparked riots in America when the text was leaked to the public. Federalist Alexander Hamilton was showered with stones while trying to speak to a public meeting, and was forced to flee. While the Jay Treaty barely made it through the Senate, the House was in Antifederalist hands and in spite voted down an honor celebrating President Washington's birthday.

France was somewhat justified in attacking American shipping during this period, since America had declared that it would end paying its national debt to France, since we had borrowed money from the French monarchy, not the revolutionary government. France started seizing American ships with a vengeance, to the tune of hundreds per year. This was later given the term the "Quasi War," which has now been forgotten by all but American history students.

By the later 1790s, after the violent excesses of the French Revolution had been shown to the world, the Federalists were using the Antifederalists' friendship with France against them politically. This partisanship (or factionalism) was personified by President John Adams and Vice President Thomas Jefferson (this was before the "spoils system" was created, so the vice presidency was still awarded to the runner-up in the presidential voting).

Adams had sent three envoys over to France to try to resolve the issue. However, the French Directory (their government's name, at the time) demanded from these envoys a hefty bribe and further money to flow to France. The envoys returned home, the bribery demands were made public, and America experienced its first political scandal, the "XYZ Affair" (in the publication of what had happened, four French names were redacted and replaced by the letters "W," "X," "Y," and "Z").

What happened next is open to interpretation. Dr. George Logan, a private citizen, travelled to France to try to free the American ships and sailors being held. To much astonishment, he appeared to succeed. The French backed down considerably, lifted an embargo, and said they'd free sailors and ships. Those are the facts that both sides seemed to agree upon, at least.

Everything else surrounding the trip was bitterly fought over, however. Did Logan meet with Thomas Jefferson right before he decided to go on his trip? Were his passports signed by Jefferson? Did he even succeed in his mission, or were the French ready to offer concessions anyway? The story that the French moved ten days before Logan met with them circulated in American newspapers, contradicting his account. Was his mission really an effort by the Antifederalist faction to circumvent the Federalist president's foreign policy?

There are obviously a lot of similarities and a lot of big differences with the situation surrounding the letter sent this week by the Republican senators, but I'll leave it to the reader to draw any parallels or not, for now. Because there is more historical context to explore.

The Federalists were at the height of their power by 1798. They used this position of strength to pass some rather odious laws, laws we would today consider downright un-American. The most prominent of these were the Alien and Sedition Acts, passed in 1798. These were a direct attack on the Antifederalists. The "Alien" part was aimed at Antifederalists in two ways: to undermine certain foreign-born Antifederalist politicians, and to undercut popular political support for the Antifederalists from recent American immigrants (the Federalists were a rather anti-immigrant party, for context). The "Sedition" part was aimed directly at Antifederalist newspaper publishers and editors, essentially making it a crime to criticize the Federalist government in print. As I said, pretty un-American concepts.

This was the domestic political atmosphere when Dr. Logan travelled to France, in 1798. To say the partisanship was ugly is understating the case. To say it was more vicious than today's political climate is closer to the truth. What Democrat would propose today making Fox News illegal, after all? That was the basic intent of the Alien and Sedition Acts, after all, translated to a modern setting.

Congress debated making what Logan did illegal at the end of 1798, and the bill passed in January of 1799. During this period, the fight raged in the popular press. Below are a few excerpts, to give the flavor of the debate. A few contextual notes are necessary, first, though.

"The Directory" (capitalized or not) refers to the revolutionary French government. The "chief magistrate" was the title most used by most Americans for the U.S. president, at the time. "Talleyrand" was the French government official who demanded the bribe in the XYZ affair. The Antifederalists were called "the Faction" (or "the French Faction" or even "the traitor Faction"), and the term "faction" itself was a very ugly language at the time. OK, that's really enough in the way of footnotes. Oh, one more thing: all spelling is reproduced faithfully (correct spelling was a rather fluid concept, at the time), as are the italics used.

Here are a few examples of what the Federalist papers were saying about Dr. Logan. The first is from the Gazette of the United States, AND Philadelphia Daily Advertiser (December 6, 1798):

There is an absolute connection between the directory and the abandoned leaders of a faction here. Am I asked my proofs? I refer to their constant apologies for the conduct of France; to their persevering efforts to keep the country disarmed; to the mission of the envoy Logan. Few persons can be so stupid as to believe that this man went to France entirely of his own accord. It can be proved that Jefferson was extremely intimate with him just before his departure. And at what time did he sail? Shortly after the publication of the dispatches when the faction saw their dearest hopes in the greatest danger of being blasted by that glorious enthusiasm which fired the American breast. A change of conduct on the part of France was absolutely necessary, and Dr. Logan was dispatched to instruct the directory how to deceive and manage his country. They treated him with the greatest attention, and their official journal represented him as the envoy of the French party in America. He was said in the Paris papers to have passports signed by Jefferson to Merlin and Talleyrand. Thus we have positive proof of a coalition between foreign enemies and domestic traitors. Americans! be vigilant -- Mark the leaders of the faction well -- Watch all their motions, for they can assume a thousand forms and practice a thousand deceits.

In other words, the whole thing was a plot by Jefferson. Of course, the Federalists had to come up with a good reason why peace was such a bad idea, but this didn't really faze them. After Logan publicly released a letter to his wife where he attempted to explain his side of the story, the Federalist reaction was fierce. From J. Russell's Gazette, (January 31, 1799):

So far therefore from clearing himself, Logan has fasten'd the rope to his own neck. Let him swing.

But while he dangles in air, let one thought be fixed to the general aspect of the business.

The Government has tried to negotiate, and France would not. The Faction has tried to negotiate and France would not. Say then false hearted Americans, is government to blame that peace is not to be had. Compare what government demanded with the terms humbly prayed for by the treators, and see which best loves the people, and is most faithful to their interests. Government claimed reparation for past injuries and indemnity against future. Faction softly whispers this speaking request. Let go our vessels, whose cargoes, tho not paid for, you already have -- Let them sail away empty. Let go our seamen, you have already plundered them, and you will get nothing if you let them starve, you will lose something if you still detain and feed them. Accordingly, the raising of the Embargo has not respited our plundered commerce one hour, it has not saved one shilling from the robbers hands, our armed ships have saved all that has been saved. The piritical Laws of France are still in full force -- If France then will not negotiate either with our Government, or the traitor Faction it's enemy, what excuse is there for those who will adhere to France, who condemn our government and who try even yet, to delude the citizens with the false offers of that peace, which our adversary has refused and yet refuses both to enemies and friends?

Meanwhile, to the Antifederalist press, Logan achieved a status approaching sainthood. This is not much of an exaggeration. The following excerpt was immediately preceded by a paragraph where this connection is plainly made, openly using Biblical language: "The Divine Author of Christianity hath pronounced a blessing on the Peace-makers, superior to an earthly Throne." From the Alexandria Advertiser, (January 1, 1799):

When constitutions and laws shall obstruct the paths of virtue, justice & humanity, and deprive mankind of the power of doing good -- when laws shall transform noble and patriotic actions into treason and conspiracies; then will the benefits of government be overbalanced by its evils; and men would wisely prefer a state of nature, and for ever renounce such artificial fetters as regular governments. Our situation, however, is not this desperate, for we do not violate the constitution of our country or transgress its laws by becoming the bearer of dispatches from the French Directory to our chief magistrate, even though its contents should be for peace. Thanks be to Heaven that ex post facto laws are forbidden thereby; and Logan is secured from governmental resentment. Though attempts may be made by the enemies of freedom, and patrons of ministerial infallibility to prevent individuals from saving their country from all the horrors of war; if every friend of humanity will depreciate the evil, and successfully oppose the appearance of such a phenominon in legislative acts.

If Oh! Logan, thou hast deserved well of thy country, and Columbia's annals will record thy fame, when reason shall assume its throne, and men shall view the actions of the present generation with impartiality and justice -- despising a narrow policy, and rejecting pecuniary advantages, thou hast not joined the dogs of war, nor barked for the carrion of thy country's spoils. Thy name is not enrolled in the evil list -- thou glidest not down with the tide of governmental favor.

And then there were the downright conspiratorial types. Think our politics today breeds conspiracy theories? How about the granddaddy of all conspiracy theories, expressed openly in the Gazette of the United States, AND Philadelphia Daily Advertiser, on January 8, 1799:

The Doctor says he carried with him two certificates of citizenship which were addressed to no one. It is to be wished that the Doctor had told us who gave him these certificates of citizenship. One of these certificates his friends inform us was signed by the Vice-President. It surely does not come within the range of the Vice-President's functions to grant certificates of citizenship. Why in this instance has the Vice-President usurped a power with which neither the laws nor the constitution have vested him? Was this certificate to be a token or evidence that the Doctor belonged to a certain sect, and might be safely trusted by the Illuminati of all countries (for it was addressed to no one); or was it to be in the place of a symbol by which the directory might recognize him as one of the faithful Americans? It is certainly incumbent upon the Doctor to explain himself further upon this subject, and lay before the public a copy of the Vice-President's certificate of citizenship.

Logan's trip to France certainly did send ripples throughout America's politics. The Logan Act was passed in 1799 and signed into law by President Adams. Adams would become the first American president not to achieve re-election, and Thomas Jefferson took over after the "Revolution of 1800" where many Federalists were sent packing, in no small part because the public believed they had overreached their bounds when it came to playing the game of politics.

Logan himself went on to become a U.S. Senator, from Pennsylvania. After he left office (and despite the Logan Act), he would travel to Britain in 1810 in a similar effort to avoid war (which didn't work, as the War of 1812 attests). But he was not prosecuted for this trip (seeing as how the Antifederalists were still in power).

The Alien and Sedition Acts were mostly done away with by President Jefferson, and are today held up as prime "bad examples" of partisan overreach in lawmaking to students of both history and the law. However, the Logan Act was also part and parcel of this overreach, even though it still remains on the books.

So to any who are now clamoring for bringing federal charges against half the members of the United States Senate, I would offer a word of caution. Was the letter just sent to the Iranians a bad idea? Well, I tend to think so. Was it a clumsy and ham-handed effort by a freshman senator to undermine the president? Undoubtedly -- even some Republicans who signed the thing are now arguing this position. Was it illegal by federal law? That's largely unknowable, because there simply is no judicial history of the Logan Act ever being enforced, one way or the other. The constitutionality of the act has never been adequately challenged in court.

If the Logan Act were invoked and charges brought, nobody has any idea of what would happen in the courts. The Logan Act itself might just be scrapped. Even if it weren't, is this the way our government should really operate? Charging sitting senators with treason in the midst of a political dispute? Say for just one moment that prosecutions happened, were successful, and the three-year terms in jail were upheld by the Supreme Court. Is that the America we all really want to live in, where half the Senate is sent to prison for playing politics?

-- Chris Weigant

Follow Chris on Twitter: @ChrisWeigant