C HRISTOPHER H UNTER Reevaluating Press Freedom in Colonial America Introduction: A Contentious Legacy “What signifies a declaration that ‘the liberty of the press shall be inviolably preserved? ’ What is the liberty of the press? ,” a skeptical Alexander Hamilton challenged readers of “Federalist” 84. “Who can give it any definition which would not leave the utmost latitude for evasion? ” 1 When he wrote those words in 1788 Hamilton was fighting a losing battle against the Bill of Rights, which he considered not only unnecessary but potentially dangerous. But Hamilton sounded a prophetic note when he concluded that the liberty of the press, “whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all… must we seek for the only solid basis of all our rights.” 2 Advocates of unpopular causes have found this guarantee cold comfort indeed. The aim of this study is to provide an overview of the theory and practice of press freedom during the colonial period. Thanks in large part to the vibrant scholarly traditions in a variety of fields, including the history of the book, legal and constitutional history, and Early American political science and political philosophy, the complications attending such a project are at least as much interpretive as evidentiary. Much of the difficulty has hitherto been located in the first term of “Liberty of the Press,” in defining its precise limits and contours, but there is also a profound terminological confusion inherent in the phrase’s second term. Is “press” simply shorthand for “printing press,” a device for reproducing words and images (which can, as in the case of moveable type and copperplate engravings, in fact compass two distinct technologies)? Or does it refer to the institution of the press, a concatenation of presses and people fulfilling a culturally-specific set of social roles (including uniting the imagination and organizing the temporality of the citizens of the modern nation-state it constructed, disseminated, and managed)? Attempts to define ideologically fraught concepts like “the liberty of the press” are invariably inflected by the position of the writer vis-à-vis the context in which they are written. As such, the history of the 1 Publius [Alexander Hamilton, James Madison, John Jay], The Federalist (New York, 1788) 349-50. 2 Publius 349-50. 74 C HRISTOPHER H UNTER freedom of the press in America is inextricably linked to - indeed, is inseparable from - the historiography of press freedom. Twentieth-century answers to Hamilton’s difficult questions have attempted to define the phrase as it appears in the First Amendment to the Constitution: “Congress shall make no law… abridging the freedom of speech, or of the press.” Beginning with Zechariah Chafee, Jr.’s Freedom of Speech, American scholars produced a series of works whose primary aim, as one recent commentator has described his own project, is to explain the changing definitions of “the freedom of the press” and the “competing understandings of the justifications of free expression” those definitions imply - to produce, that is, “a conceptual history of press liberty.” 3 Published just two years after the passage of the 1918 Sedition Act, Chafee’s book argues for the widest possible construction of the First Amendment, defining the meaning of “freedom of speech” in broadly libertarian terms that could be applied to contemporary cases. Freedom of Speech argues that the First Amendment “was written by men to whom Wilkes and Junius were household words, who intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America.” 4 Unhappily for its author, in the wake of World War I “Red” and “Menace” were household words. Chafee’s critics were not slow to react to what they perceived as his dangerous radicalism, if not outright bolshevism. Edward S. Corwin, writing in the Yale Law Journal, found it “very improbable that [the Founders] had entertained any such idea” 5 as banishing the crime of sedition. The New York Times Book Review dismissed Freedom of Speech as “thoroughly untrustworthy as an analysis of either law or the facts relating to the subject matter treated.” 6 Chaffee was the subject of a Justice Department probe, and the Bureau of Investigation’s dossier on him was later used in an unsuccessful attempt by conservative Harvard Law alumni to secure his ouster. As the threat of bolshevism waned and Americans became less hostile to contemporary critics, they also became more willing to accept such toleration from their Revolutionary forebears. In the years between the World Wars Chafee’s views gained respectability, and when the revised edition of Freedom of Speech was published in 1940 it 3 Robert W.T. Martin, The Free and Open Press: The Founding of American Democratic Press Liberty, 1640-1800 (New York: New York UP, 2001) 3. 4 Zechariah Chafee, Freedom of Speech (New York: Harcourt, Brace and Howe, 1920) 21. 5 Edward S. Corwin, “Freedom of Speech and Press under the First Amendment: A Resume,” Yale Law Journal 30 (1920): 48. 6 Archibald E. Stevenson, “The World War and Freedom Of Speech,” New York Times Book Review and Magazine 13 Feb. 1921: 19. Reevaluating Press Freedom in Colonial America 75 was hailed in the American Political Science Review as “the Areopagitica of the present hour.” 7 The comparison to John Milton’s 1644 attack on prior restraint was more apt than the reviewer intended: like Areopagitica, Chafee’s book places history in the service of propaganda. In a country eager to contrast its ancient liberties with Soviet suppression, the book’s portrait of a tradition of tolerance stretching back to the Revolution was both timely and appealing, and its author, safe now from charges of Anti-Americanism, assumed his place in the pantheon of defenders of civil liberties. Freedom of the Press remained the definitive work on the subject until Leonard Levy challenged Chafee’s findings in his 1960 Legacy of Suppression. 8 Levy’s central claim in Legacy, which he modifies but does not repudiate in its 1985 revision Emergence of a Free Press, 9 is that “a broad libertarian theory of freedom of speech and press did not emerge in the United States until the Jeffersonians, when a minority party, were forced to defend themselves against the Federalist Sedition Act of 1798.” 10 This claim, in these uncharacteristically conciliatory terms, may seem less than revolutionary today, but it was no less than that when it first appeared, couched in Levy’s often willfully inflammatory rhetoric. Levy flatly rejects Chafee’s claim that the revolutionary generation meant to wipe out the crime of sedition, contending they would have found nothing objectionable in William Blackstone’s assertion that the liberty of the press “consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” 11 For the authors of the Bill of Rights, as for the oracle of the common law, “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 consequence of his own temerity.” 12 If the Framers differed from Blackstone as to what they considered “improper, mischievous, or illegal,” this difference is of quality, not of kind. The analogy Blackstone’s borrows from Jonathan Swift illustrates the hostility to licentiousness Levy contends persisted into the Early Republic: “A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials.” 13 Up to a point 7 R.E. Cushman, American Political Science Review 36.1 (1942): 136. 8 Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (Cambridge: Belknap-Harvard UP, 1960). 9 Leonard W. Levy, Emergence of a Free Press (New York: Oxford UP, 1985). 10 Levy, Emergence x. 11 William Blackstone, Commentaries on the Laws of England, vol. 4 (Oxford: Clarendon Press, 1769) 151. 12 Blackstone 151-52. 13 Blackstone 152. 76 C HRISTOPHER H UNTER Americans tolerated the bracing tonic of a lively opposition to invigorate the emerging public sphere of rational debate, but they reserved and regularly exercised the right to punish “poisonous” licentiousness. This alone was reason enough for Levy to draw a conclusion that has lost little of its stridency: “American experience with freedom of political expression,” he announces, “was as slight as the theoretical inheritance was narrow.” 14 As might be expected from a direct assault on what had become comfortingly conventional wisdom, Legacy reinvigorated the study of press freedom in Early America. Historians, including Merrill Jensen, pointed out that Levy’s focus on the law blinded him to the “nearly epidemic degree of seditious libel that infected American newspapers after Independence” and the fact that American presses “operated as if the law of seditious libel did not exist.” 15 Levy responded that the crime of seditious libel persisted even if offenses were rarely punished. Others noted that Levy’s revision ignores the insights of such historians as Bernard Bailyn and Gordon Wood, whose studies of republican ideology animated a quarter-century of historical work between Legacy and Emergence of a Free Press. 16 In spite of the profusion of hostile reviews none of Levy’s gainsayers produced a work of comparable scope to Legacy and Emergence until Robert W.T. Martin’s The Free and Open Press: The Founding of American Democratic Press Liberty, 1640-1800 appeared in 2001. Martin argues that those who uncritically marshal examples of seditious speech, simply “rescue old myths by stressing the grand struggle for republican liberty while largely ignoring Levy’s solid evidence of recurrent suppression.” 17 Martin’s solution is to divide the discourse of press liberty into “a predominately ‘republican’ stress on public liberty and the public good (free press doctrine) and a more nearly ‘liberal’ notion of individual rights (open press doctrine).” 18 He contends that these two strains “coexisted in a single, ambivalent tradition throughout much of the eighteenth century.” 19 Then, “the arrival of the crisis in imperial relations in the 1760’s brought these vague ideals down to the sullied and imperfect level of specificity and pragmatism. The struggle for control of the colonies was the long-expected battle between power and liberty. And … the ambiguous unity of free and open press tradition would not survive unscathed.” 20 Martin’s thesis attempts to reconcile the two sides of the debate that had 14 Levy, Legacy vii. 15 Levy, Emergence x. 16 David M. Rabban, “The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History,” Stanford Law Review 37.3 (1985): 795-856. 17 Martin 10. 18 Martin 11. 19 Martin 11. 20 Martin 47. Reevaluating Press Freedom in Colonial America 77 had little to say to one another and it connects those traditions to the mainstream of Early Republican scholarship. Martin praises Stephen Botein’s essay “‘Meer Mechanics’ and an Open Press: The Business and Political Strategies of Colonial American Printers” 21 for identifying a distinct strain of “open press” doctrine in the writing of Eighteenth Century newspaper publishers. By emphasizing the physical nature of their profession - its mechanical quality as opposed to its intellectual one - publishers of newspapers were able to postpone open partisanship and avoid alienating either side of an increasingly polarized readership. But Botein, Martin writes, got it backwards: “whereas Botein saw economics as the main determinant of press theory and practice … [t]he main forces of change were ideological and political.” 22 This argument, for all its rhetorical force, is tautological. Martin reduces Botein’s argument to an economic base and ideological superstructure and then inverts its terms, reinforcing the logic of his own project without questioning the dichotomy on which it is premised, concluding that “it is only by examining these concepts that we can begin to explain the pivotal conceptual evolutions of the eighteenth century.” 23 Of course an examination of concepts will result in a better understanding of conceptual change; what it will not do is resolve the still too-great distance between our understanding of the material conditions of textual production and dissemination and the kind of freedom or suppression actually enjoyed or suffered by the speakers, writers, and printers whose textual legacy it examines. The present work differs from Chaffee, Levy, and Martin in that it is not primarily “conceptual.” Its purpose is instead to illuminate the relationship between the rhetoric and practice by treating the conceptual and practical not as separate elements in a causal chain but as an indivisible whole. By covering only the Colonial period, I hope to avoid the temptation to interpret Colonial developments in light of the later debates over Constitutional hermeneutics that overshadow previous accounts. The Seventeenth Century: From the Penumbra of Other Liberties Speech was the object of official regulation and popular restraint in Colonial America well before the arrival of the first press provided the technological condition of possibility for the restraint of the press. Such regulation and 21 Stephen Botein, “‘Meer Mechanics’ and an Open Press: The Business and Political Strategies of Colonial American Printers,” Perspectives in American History 9 (1975): 127-225. 22 Martin 9. 23 Martin 9. 78 C HRISTOPHER H UNTER restraint provide much-needed insights into the context within which early discussions of press liberty emerged. Larry Eldridge, who reviews over 1,200 colonial court records of seditious speech prosecutions in his book A Distant Heritage, 24 notes that speech was only one of the behaviors Colonial governments attempted to control “to uphold prevailing moral and social values, to preserve public peace, to maintain respect for authority.” 25 Clothing, comportment, sexual behavior, and a wide spectrum of other non-verbal acts were also objects of official sanction. These behaviors were constrained not only in Puritan New England, and not only, as we might imagine, in the early part of the century. Behavior, including expression, was the object of oversight in all the colonies of British North America throughout the seventeenth century. In practice, verbal crimes held a conspicuous place within this wide array of offenses. In Protecting the Best Men, an interpretive history of the law of libel, legal scholar Norman Rosenberg identifies the colonists’ persistent interest in the “small politics” of personal status. The “politics of reputation” 26 made up a significant proportion of colonial legal proceedings because, as an oft-cited 1647 Rhode Island statute has it, “[a] good name is better than precious ointment, and slanders are worse than dead flies to corrupt and alter the savour thereof.” 27 Civil actions did not result in sensational sentences of ear cropping, tongue boring, arm breaking, and other forms of “bodily correction” that occasionally accompanied criminal libel judgments and commonly enliven modern accounts of colonial jurisprudence. 28 In the small, closely-knit communities of seventeenth-century America libel cases were utterly ubiquitous, an inescapable corollary to the vital importance of reputation. Early America was not so much litigious as collaborative: policing expression was a community project. In addition to civil infractions, colonists recognized a number of crimes arising form mere words. There were three principle types of criminal libel: blasphemous libels were statements against religion, obscene libels which militated against public morality, and seditious libels, which assaulted the policies or members of the government. In practice, purely personal libels 24 Larry D. Eldridge, A Distant Heritage: The Growth of Free Speech in Early America (New York: New York UP, 1994) 3. 25 Eldrigde 5. 26 Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel, Studies in Legal History (Chapel Hill: University of North Carolina Press, 1986) 12-28. 27 John Russell Bartlett, ed., Records of the Colony of Rhode Island and Providence Plantations, vol. 1 (Providence, 1856) 184. 28 Only 3.3 percent of all seditious speech offenders before 1660 suffered bodily correction (excluding whippings) and that none did after 1660 (Eldridge 97). Reevaluating Press Freedom in Colonial America 79 between common citizens were rarely if ever treated as criminal, and magistrates and legislators in criminal cases did not always take great care to distinguish between the different classes of libel. The medieval English statutes commonly known as Scandalum Magnatum outlawed “False News or tales whereby discord or occasion of discord or slander may grow between the King and his People or the Great Men of the Realm.” 29 Because of the emphasis on false news, a defendant who could prove the truth of an alleged libel was innocent as a matter of law. In England truth remained a defense against libel until the 1606 Star Chamber case de Libellis Famosis established a range of new precedents. Among these was the provision that the truth of the libel is at best immaterial and at worst an aggravation of the crime. The criminality of a libel lies in its “bad tendency” to incite breaches of the peace or a diminution of respect for authority, and true libels are more likely to be believed than false ones. 30 This precedent became so rooted in Colonial jurisprudential practice that fifty years after the Zenger case the idea that truth could be defense for libel struck James Madison and John Adams as an “innovation.” 31 Separate prohibitions against spreading false news were enacted as early as 1645 - almost 60 years before the first sustained newspaper appeared. Citizens of Massachusetts “of the age of discretion, which is accounted fourteen years, who shall wittingly and willingly make or publish any lie which may be pernicious to the public weal… shall be punished.” 32 The law, with minor variations, was adopted by Plymouth in 1653. 33 The Frame of Government of Pennsylvania’s “Laws Agreed Upon in England” (May 5, 1682) provided that “all scandalous and malicious reporters, backbiters, defamers and spreaders of false news, whether against Magistrates, or private persons, shall be accordingly severely punished as enemies to the peace and concord of this province.” 34 Virginia enacted a similar measure in 1649, as did New York in 1664, and South Carolina in 1692. Punishments ranged from a fine of 10 shillings for a first offense in New York to death in Virginia for “false reports and malicious rumors… tending to the change of government or to the lessening of the power and authority of the Governor 29 Fredrick Seaton Siebert, Freedom of the Press in England, 1476-1776, the Rise and Decline of Government Controls (Urbana: U of Illinois P, 1952) 118. 30 Siebert 119. 31 Levy, “On the Origins of the Free Press Clause” 200, 205. 32 Eldridge 31. 33 Eldridge 31. 34 Francis Newton Thorpe, The Federal and State Constitutions, colonial charters, and other organic laws of the state[s], territories, and colonies now or heretofore forming the United States of America, vol. 5 (Washington: Govt. Print. Off., 1909) 3062. 80 C HRISTOPHER H UNTER or government.” 35 As with criminal libels, a conviction for spreading false news could result in fines, imprisonment, exclusion from public office, banishment, corporal punishment, humiliation, or some combination of these. In the specie-strapped monoculture of the Chesapeake, statutes accompted fines in pounds of tobacco, though “country pay” was accepted in every colony. Although laws of criminal libel and false news governing both speech and print remained more or less consistent throughout the century, the frequency and severity of actual penalties for seditious words waxed and waned. In Virginia in the wake of Bacon’s rebellion, for example, Governor Berkeley’s Council stiffened the penalties for verbal crimes. In language foreshadowing Washington’s 1794 justification of military action against “certain self-created societies,” 36 the statute of 1677 noted that “seditious and scandalous libels are the usual forerunners of tumult and rebellion” and held that none “shall presume to speak, write, disperse or publish by words, writing or otherwise any matter tending to rebellion, or in favor of the late rebels or rebellion.” 37 Although the firm prohibition against criticism of officials remained throughout the century, the enforcement of those prohibitions was not so consistent. The law itself indicates the government’s understanding of the gap between law and practice. Rightly fearful that the tremendous power and authority centered in Jamestown was not translating into control of the backcountry, Virginia’s 1677 seditious speech law added that county court justices who did not enforce its provisions would be subject to double the fine the offender would have faced. 38 British North America’s first application of the sedition laws to printed matter occurred in Massachusetts in 1650. The General Court found William Pynchon’s The Meritorious Price of Our Redemption (London, 1650) to be “erronyous and hereticale,” and ordered it “burned by the common executioner in the market-place in Boston.” 39 Unwilling to reform his opinions about the sufferings of Christ to the extent demanded by the legislature, Pynchon had to emigrate to England to avoid prosecution. In the years leading up to the 1662 Half-Way Covenant and the 1664 uncoupling of church membership and citizenship book burnings became increasingly common. Massachusetts authorities were as creative in their use of discipli- 35 William W. Henning, ed., The Statutes at Large, Being a Collection of all the Laws of Virginia, vol. 1 (Richmond, 1809) 361. 36 James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents 1789-1897, vol. 1. (Washington [D.C.]: U.S. Govt. Print. Off., 1896) 162. 37 Eldridge 36-37. 38 Eldridge 24. 39 Clyde Augustus Duniway, The Development of Freedom of the Press in Massachusetts (1906; New York: B. Franklin, 1969) 32. Reevaluating Press Freedom in Colonial America 81 nary categories as they were religiously intolerant. On August 24, 1654, the General Court ordered “that all & euery the inhabitants of this jurisdiction that haue any of the bookes in their custody that haue lately bin brought out of England vnder the names of John Reeues & Lodowick Muggleton” had to surrender them to the magistrate or else “forfeit the sume of ten pounds for euery such booke that shalbe found, or knowne to be in the hands of any inhabitant after one moneths publication hereof.” Well aware of the difficulty of finding the pamphlets, the Court put a bounty on the books, in effect enlisting Massachusetts inhabitants as executors: “the one halfe to the informer, the other halfe to the country.” As with The Meritorious Price of our Redemption, Reeves and Muggleton’s books were “to be burned by the executiono r , at Boston.” 40 The pair were prolific pamphleteers, and at least five of their tracts had been published in the three years immediately preceding the General Court’s injunction against them. 41 As part of their campaign against heterodoxy the Court further ordered that anyone in its jurisdiction who possessed or imported “any Quakers bookes or writings concerning theire diuilish opinions” would have to pay £5. 42 Book burnings, dramatic demonstrations of the governmental power, were part of a largely rear-guard action to combat apostasy and steadily declining church membership. The effects of these ritualistic purgations were more symbolic than real. Colonial America remained a provincial book market until well into the eighteenth century, and as such imported more printed matter than it produced. Benjamin Franklin would recall in his Autobiography that in 1730 “there was not a good Bookseller’s Shop in any of the Colonies to the Southward of Boston. In New-York & Philad a the Printers were indeed Stationers, they sold only Paper, &c. Almanacks, Ballads, and a few common School Books. Those who lov’d Reading were oblig’d to send for their Books from England.” 43 Local authorities could not possibly hope to regulate England’s presses, and their attempts to control the products of those presses were not particularly successful, as Hugh Amory’s brief catalogue of some of the more unusual items in colonial 40 Duniway 36. 41 The pamphlets are: A Transcendent Spiritual Treatise upon Severall Heavenly Doctrines from the Holy Spirit of the man Jesus, the only true God (London, 1652), A letter presented unto Alderman Fouke, Lord Mayor of London (London, 1653), A Remonstrance from the Eternall God, declaraing severall spirituall transactions unto the Parliament, and Common-wealth of England (London, 1653), A General Epistle, from the Holy Spirit: unto all prophets, ministers, or speakers in the world (London, 1653), and Answers to Several Queries (London, 1654). 42 Duniway 36-37. 43 Benjamin Franklin, Writings, ed. J.A. Leo Lemay (New York: Library of America, 1987) 1379. 82 C HRISTOPHER H UNTER libraries suggests: “John Usher imported a salacious novel, The London Jilt, a pornographic classic, Venus in the Cloister, and the Earl of Rochester’s libertine Poems. Massachusetts and Connecticut ports were officially closed to Catholic, Quaker, and Baptist books, but Benjamin Lynde, a future Massachusetts chief justice, had acquired copies of Dryden’s agnostic poem, Religio Laici (1682) and his allegorical apology for Catholicism, The Hind and the Panther (1687) shortly after their publication.” 44 During this period of regular (if infrequent) book burnings, Massachusetts’ presses remained free of regulation. This was not, however, out of regard for the liberty of the press. The first significant event of 1639 John Winthrop records in his Journal is that “a printing house was begun at Cambridge by one Daye at the charge of Mr Glover who died on sea hitherward. The first thing which was printed was the freeman’s oath, the next was an almanack made for New England by Mr. Peirce, mariner - the next was the Psalms newly turned into metre.” 45 Winthrop’s catalogue of the first products of Colonial America’s first press provide a fairly representative picture of its early output: the oath, a broadside blank form with a space for a signature, is the administrative instrument conferring full citizenship, including the right to vote and hold public office, on one meeting its stringent religious, economic, and social criteria; 46 an almanac; and the Bay Psalm Book, a product of the collaboration between the colony’s leading divines. Although potentially dangerous or disruptive material could easily be imported, there was little chance of such material issuing from the presses at Cambridge. Glover’s widow married Henry Dunster, the first president of Harvard College. After her death the press remained under Dunster’s control until it was purchased by the college. The appearance and proliferation of acts regulating colonial presses is not simply a sign that the liberty of the press was in eclipse, for there was little enough liberty to begin with. It is, rather, a sign that the authorities apprehended a danger from private commercial printing and sought to minimize its disruptive potential. On October 1662 the General Court ordered that “For prevention of irregularities & abuse to the authority of this country by the printing press… henceforth no copie shall be printed but by the allowance first had & obteined under the hands of Capt- Daniel Gookin & Mr 44 Hugh Amory 84. 45 John Winthrop, Journal of the Transactions and Occurrences of the Settlement of Massachusetts (Hartford, 1790) 171. 46 I am fully in mind of Hugh Amory’s caution about the “powerful implication” of firsts - the first product of the Massachusetts press was also its last Freeman’s Oath. Blank forms, however, continued to make up a significant portion of the output of colonial presses. Amory 109-11. Reevaluating Press Freedom in Colonial America 83 Jonathan Mitchel, vntil this Court shall take further order therein.” 47 The Court reconsidered shortly thereafter, ordering on May 27, 1663, “that the printing presse be at liberty as formerly, till this Court shall take further order, & the late order is heereby repealed.” 48 Prior censorship was reinstated two years later in an order apparently passed for the express purpose of supervising Marmaduke Johnson. Johnson, who had come to work on Eliot’s Indian Bible, had gotten himself into trouble by seducing Samuel Green’s daughter. After completion of the book he returned to England, but he reappeared in the Bay Colony with all the equipment necessary to open a printing office. As the historian of press freedom in Massachusetts notes, “[p]rior to May, 1665, there was no strictly private commercial ownership of a press in Massachusetts.” 49 The colony’s two presses were under the control of the college, and Johnson too was forced to set up shop in Cambridge. After a number of petitions, Johnson was allowed to relocate his press to Boston in 1674, and Thomas Thatcher, and Increase Mather were added as licensers to supervise him. Johnson died shortly thereafter, but the press had found its permanent home. When Governor Edmund Andros arrived with royal instructions to regulate the press, the Council put them into effect: “no Papers, Bookes Pamphlets &c should be printed in New England untill Licensed according to Law, and that no printer have Liberty to print till he hath given five hundred pounds security to his Maj tie to observe that order.” 50 The terms were “[t]hat Coppyes of Books &c. a to be printed be first p. r used by m r Dudley late President & vpon his allowance of them for the pres that one Coppy thereof So allowed and attested by him be brought to y. e Secr. y office. to be left on record and receave from him an Imprimatur.” 51 The situation with Pennsylvania and New York’s first presses was in many ways similar to that of Massachusetts. In 1685 the London-trained printer William Bradford arrived in Pennsylvania with his press, types, and paper. He carried instructions from George Fox to print for the Friends, who, in turn, were to provide him a ready market for his product. Not only did they not keep his press occupied, they took turns with the Provincial Council censoring the publications he printed on his own account. As James Green summarizes the situation in his excellent essay “The Book Trade in the Middle Colonies, 1680-1720” in The History of the Book in America, Vol. I, “the introduction of printing in New York and Pennsylvania did not immediately foster a vital print culture… [F]or all but a few years the press 47 Duniway 41-42. 48 Duniway 46. 49 Duniway 47. 50 Duniway 66. 51 Duniway 66. 84 C HRISTOPHER H UNTER was in the hands of one family, and for all but a few months it was carefully circumscribed by religious and civil authorities, who regarded it primarily as a helpful administrative tool.” 52 During the few months Bradford’s press was at liberty, he used it to support George Keith in his dispute with the Philadelphia Meeting. In a printed defense of his conduct Bradford insisted that in spite of the one-sidedness of the printed record, he was non-partisan: And whereas it is reported, That the Printer being a favourer of G.K. he will not print for any other, which is the reason that the other party appear not in Print as well as G.K. These are to signifie, that the Printer hath not yet refused to print any thing for either party; and also signifies that he doth not refuse, but is willing and ready to print any thing for the future that G.K.’s Opposers shall bring to him. 53 This open press discourse would become a standard feature of Colonial printers’ defense of their conduct, even (perhaps especially) in cases where they did not practice it. In 1692 one of Keith’s pamphlets brought a charge of seditious libel against Bradford. During his trial Bradford argued that that the jury was empowered to decide the law as well as the facts of the case - that is, whether the pamphlet in question was seditious and not merely whether Bradford had in fact printed it. He was acquitted, however, on the grounds that his involvement in the printing could not be proved. Shortly thereafter Pennsylvania’s first printer dismantled his press and moved to New York where he became “a salaried public employee (at £40 a year) subject to dismissal at any time.” 54 The Friends, evidently, had learned the dangers that attended even a licensed independent press. Pennsylvania’s next press, and its types, was owned by the Friends, who also purchased paper and hired a printer. 55 Virginia took an even more direct route to control the dissemination of libelous prints. In 1682 John Buckner and William Nuthead arrived at Jamestown with a press and the intent to set up shop. When word reached the Governor that Nuthead had begun to print the Acts of the Assembly in spite of explicit instructions not to publish anything without prior authorization, Buckner was summoned before the Council. He informed them that he had only printed two sheets, which he was going to submit to the gover- 52 James Green, “The Book Trade in the Middle Colonies,” Hugh Amory and David D. Hall, eds., A History of the Book in America, vol. 1 (Cambridge: Cambridge UP, 2000) 199. 53 A True Copy of Three Judgments Given forth by a Party of Men, called Quakers, against George Keith and His Friends ([Philadelphia], [1692]) [16]. 54 Green 212. 55 Green 215-16. Reevaluating Press Freedom in Colonial America 85 nor for his approval before continuing with the book. This apparently satisfied the Council, but they ordered Buckner “for prevention of all troubles and inconveniences, that may be occasioned thorow the liberty of a presse” to post a bond of £100 and to print nothing further “of what nature soever, in the aforesaid presse or any other in this Colony, un till the signification of his Maj’ties pleasure shall be known therein.” 56 When the new governor arrived the next year his letters of instruction from the King included the first royal order concerning printing in America: “whereas We have taken notice of the inconvenience that may arise by the Liberty of Printing in that Our Colony, you are to provide by all necessary orders and Directions that no person be permitted to use any press for printing upon any occasion whatsoever.” 57 This order was later amended to provide for licensing of the press rather than its outright prohibition, but it was clear to Nuthead that the business climate of Virginia was inhospitable to one in his trade. He moved to Maryland, and from that time, Virginia was without a resident printer until, nearly 50 years later, the governor invited one. Royal instructions to colonial governors included such orders relating to the licensing of the press for decades after the 1694 expiry of the licensing act removed the statutory support for such prior restraint in England. 58 “Forasmuch as great inconveniences may arise by the liberty of printing in our said province, you are to provide by all necessary orders that no person KEEP any press for printing, NOR that any book, pamphlet, or other matters whatsoever be PRINTED without your especial leave and license first obtained.” 59 In much the same way as early charters did not correspond to the geographical reality of North America (a form of imaginative world-making that invariably led to contentious boundary disputes between neighboring colonies), the eighteenth-century governors who arrived carrying these instructions found that they didn’t conform to the political realities of colonial American life. Likewise, printers found ways to circumvent Royal instructions and good behavior bonds, including importation and false or absent imprints. 60 56 Lawrence C. Wroth, A History of Printing in Colonial Maryland, 1686-1776 (Baltimore: Typothetae, 1922) 1-2. 57 Leonard Woods Labaree, Royal Instructions to British Colonial Governors, 1670- 1776, vol 1 (New York: D. Appleton-Century, 1935) 495. 58 On the circumstances surrounding the expiration of the Licensing Act in England, see Siebert 260-263. 59 Labaree 495. These orders were in effect in Maryland, 1691-98; Massachusetts, 1691- 1730; New England, 1686-89; New Hampshire, 1692-1730; New Jersey, 1702-32; New York, 1686-1732; Virginia 1683-1698. 60 In 1692 Samuel Willard’s Some Miscellany Observations on Our Present Debates was printed with the imprint “Philadelphia: Printed by William Bradford for Hezekiah Vsher.” David Hall notes that the imprint is “transparently false, since Hezekiah 86 C HRISTOPHER H UNTER Recognizable libertarian declarations of press liberty were utterly unknown in seventeenth-century British America, in part because the press did not exist as a recognizable institution. Furthermore, freedom was not necessarily good for business. In the absence of a Colonial Stationer’s Company or copyright protection, printers relied on governmental regulation to protect themselves. As Hugh Amory has noted, “[w]hatever its other virtues, freedom of the press does not pay: the margin of profit shrinks as the market grows more competitive.” 61 Expansion of the freedom of the press made poor economic sense before the commercial development of the American press. So long as printers acted as only printers they had an economic disincentive to anger their patrons. The same was true, but to an even greater degree, for salaried public printers. At the end of the century critics of the prevailing order in Massachusetts had to send their criticisms to another colony to be printed, but the weren’t forced to flee as Pynchon had been in 1650. 62 “Colonists thus came to experience a much greater degree of political free speech across the seventeenth century as a result of a coalescence of historical trends. Yet the growth of free speech before 1700 was largely unexpected and unwanted by colonial authorities, and probably only semiconsciously enjoyed and appreciated by ordinary colonists at the time. The growth of free speech in the seventeenth century, the expansion of freedom to criticize, to challenge verbally, to hold government accountable - these were not the progeny of volition. They were, rather, the fruits of circumstance.” 63 The Eighteenth Century: From Censorship to Punishment By the turn of the century press licensing was already beginning to wane. In 1700 Bartholomew Green refused to print the anonymous Gospel Order Revived, a response to Increase Mather’s The Gospel Order Professed and Practiced by the Churches of Christ in New England Justified, without either the authors’ names or an Imprimatur. When Bradford finally published the pamphlet in New York, the “Advertisement to the Reader” criticized Green. Green printed a handbill justifying his conduct by citing precedent, including Samuel Sewall’s Phœnomena Apocalyptica, half a sheet of which had to be reset and reprinted because the censor demanded altera- Senior had been dead for twenty years, while Hezekiah Jr., a merchant who appears in no other imprints, jad fallen under suspicion of witchcraft and fled for his life to New York.” Hall 130. 61 Hugh Amory, “Printing and Bookselling in New England, 1638-1713” 104 62 Hugh Amory 95. 63 Eldridge 142. Reevaluating Press Freedom in Colonial America 87 tions. 64 Thomas Brattle replied in print that “nothing can be more evident from these Depositions, which say, The said Printer after he had positively agreed for the Printing said Answer, fell off from his Bargain, and declin’d to Print it, because it would displease some of his Friends, and particularly the Mathers, who are known by all to have been his particular Friends and Imployers.” 65 Bartholomew Green replied that “the Maintenance of my self & Family of small Children, depending under God, upon the good will of them that please to set me on Work I have no intent to provoke or affront any person or Order of men; but to oblige them so far as is consistent with clearing of my Reputation; which (as little and low as I am) ought to be more eligible to me than much gainful business.” 66 Most of the imprints of the Boston press - including (as Brattle and Colman pointed out) Mather’s Gospel Order Professed - did not receive an imprimatur. That Green should feel compelled to justify his conduct is a sign that the Boston press was at least marginally independent, and that the open press discourse Bradford promulgated in Pennsylvania was gaining traction among Colonial America’s few printers. Green’s critics, however, had a point: the Mathers were good customers. According to a survey of NAIP records, Cotton Mather wrote 95 works published in the decade from 1701-1710, and Increase Mather another 29. Together, they represent over one-third of all works of personal authorship, and one-fifth of all records, 67 and they financed many of these imprints in whole or in part. Whatever may have been the laws requiring prepublication approval of all prints, in practice only a small fraction ever received an imprimatur and the punishments for unlicensed printing were declining in severity. In 1688 Marmaduke Johnson was called to account for the production of his press and was fined £5 for reprinting The Isle of Pines, Henry Neville’s far-fetched tale of shipwreck, without first obtaining a license, an offense for which his press might have been seized. 68 It was evidently the lack of a license and not the description of the manner in which William Pine’s wife’s “privities were hid” 69 that galled the Council. Johnson later appealed for a return of the 64 Duniway 75. 65 Bartholomew Green, Printer’s Advertisement (Boston, 1701) 6. 66 Green, Printer’s Advertisement 10. 67 A History of the Book in America, 517. Cotton Mather, with 95 recorded imprints, was far and away the most popular author of the decade, representing 26.91% of personally authored works and 15.83% of all imprints. The next most published author was Increase Mather, with 8.22% and 4.83%. The apparent precision of such statistics belies significant interpretive issues, but the importance to a printer of authors responsible for such an incredible volume of printed material is as clear today as it was to Green’s critics. 68 Duniway 52-53. 69 Henry Neville, The Isle of Pines (London, 1668) 4. 88 C HRISTOPHER H UNTER fine, insisting that he meant no offense but merely hoped to turn a profit. By 1700 legislative resistance to colonial governors opened a space within which presses could operate with a relative degree of freedom. The death knell of licensing in Massachusetts came in 1721, when Governor Samuel Shute, whose commission still instructed him to censor the press, appealed to the Massachusetts General Court for a new licensing law. The House, in a carefully worded response, conceded that licentiousness was indeed a problem but refused to grant the request. Why Shute felt the need for a new law is unclear; in 1719 he had approved no fewer than three publications, including Some Reasons and Arguments, written by Benjamin Colman and printed by James Franklin for Samuel Gerrish and John Edwards. 70 The House’s response to Shute’s request betrays a wry sense of humor: it adopts the language of Shute’s Royal instructions, but in such a way as to reframe the debate. The Royal Instructions noted that “great inconveniences may arise by the liberty of printing,” but for the legislature, the same body that had enacted British America’s first licensing law over half a century earlier, the real danger was a powerful executive. The House noted “the innumerable inconvenienceies and dangerous Circumstances the People might Labour under” were the governor in control of the press. 71 As the representatives of the people, the House was no doubt thinking at least in part of themselves, but by protecting their own access to the technology of the press they left room for its institutional expansion as well. Boston printers were not long in exploiting this fortuitous development. Were it not for the notable series of events for which it served as the catalyst, the forty-fifth issue of The New England Courant might have passed as a fairly typical example of America’s most atypical paper. Published on June 11, 1722, it carried what had become that paper’s characteristic variety: editorials, salacious gossipy “Foreign Affairs,” accounts of deaths from smallpox inoculations, an advertisement, and the shipping news. “We are advis’d, from Boston,” one note begins in the editor’s already characteristic first-person plural, “that the Government of the Massachusetts are fitting out a Ship to go after the Pirates, to be commanded by Capt. Peter Papillon, and ’tis thought he will sail sometime this month, if Wind and Weather permit.” 72 The Massachusetts legislature, some member of whom was obviously an assiduous newspaper reader, recognized the satire for what it 70 The other two are Thomas Paine, Almanack (Boston: Printed by T. Fleet, 1719); N. Whittemore, Almanack (Boston, 1719). The next year the second edition of John Williams’s staggeringly popular A Faithful History of Remarkable Occurrences appeared (Boston: Printed by T. Fleet for Samuel Phillips, 1720) with its dedicatee J. Dudley’s conspicuous Imprimatur, a vestige of its 1707 first edition. 71 Martin 38. 72 New England Courant 45 (June 11, 1722). Reevaluating Press Freedom in Colonial America 89 was. The next day the hapless publisher was haled before the legislature’s upper house, who judged the reflection on the weakness of their resolve “a High affront to this Government.” 73 The House of Representatives concurred with the Council, and ordered that “the Sherriff of the County of Suffolk do forthwith Committ to the Goal [sic] in Boston the Body of James Franklyn Printer, for the Gross affront offered to this Government, in his Courant of Munday last, there to remain during this Session.” 74 The Council concurred, the Governor assented, and Franklin was detained for the next four weeks without the benefit of a trial or the possibility of appeal. Franklin continued to rankle the legislature, and in 1723 a joint committee made up of members from the Council and the House drafted an order that Franklin not to print the Courant “except it be first Supervised by the Secretary of this Province.” 75 Shortly thereafter, the paper ran a preface to one of its anonymous contributions stating that “[t]he late Publisher of this Paper, finding so many Inconveniencies would arise by carrying the Manuscripts and publick News to be supervis’d by the Secretary, as to render his carrying it on unprofitable, has intirely dropt the Undertaking.” 76 The statement is amusingly, even provokingly equivocal. Did “The Late Publisher,” readers might have wondered, drop the undertaking of carrying manuscripts to the Secretary, or did he drop the undertaking of publishing the Courant? In fact, he did both. “There was a Consultation held in our Printing-House,” Franklin’s apprentice recalled in his Autobiography nearly 50 years after the event, where members of James Franklin’s “hellfire club” “propos’d to evade the Order by changing the Name of the Paper; but my Brother seeing Inconveniences in that, it was finally concluded on as a better Way, to let it be printed for the future under the name of Benjamin Franklin.” Because Benjamin Franklin was his elder brother’s apprentice, “to avoid the censure of the Assembly, that might fall on him as still printing it by his apprentice,” James came up with what struck his younger brother as “a very flimsy scheme.” “The contrivance was that my old indenture should be returned to me, with a full discharge on the back of it, to be shown on occasion; but to secure to him the benefit of my service, I was to sign new indentures for the remainder of the term, which were to be kept private.” 77 Franklin soon realized that his secret indentures could not be enforced without exposing the ruse and subjecting James to further 73 Duniway 163. 74 Duniway 163. 75 Duniway 164. 76 New England Courant 80 (Feb. 11, 1723). 77 Franklin, Writings 1324-25. 90 C HRISTOPHER H UNTER punishment, and he seized the opportunity to flee his brother’s overbearing and abusive dominion. The young apprentice managed the paper while his brother was in jail. During that time, he “made bold to give our Rulers some Rubs in it, which [James] took very kindly, while others began to consider [him] in an unfavorable Light, as a young Genius that had a Turn for Libeling and Satyr.” 78 Having a turn for libeling and satire would once have virtually guaranteed a punitive response from the authorities, but by the 1720s Colonial power was no longer the unified force it once was. One of the “rubs” Franklin gave his rulers was the first American reprinting of the essay “Of Freedom of Speech: That the same is inseparable from Publick Liberty,” written by English Radical Whigs John Trenchard and Thomas Gordon’s under the pseudonym “Cato.” In the guise of “Silence Dogood,” Franklin quoted approvingly, “WITHOUT Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or control the Right of another. And this is the only Check it ought to suffer, and the only bounds it ought to know.” 79 The rampant reprinting of “Cato” provided the vocabulary and ideological framework for a discourse on the freedom of the press as an institution, an institution that in 1721 was only beginning to emerge from governmental control. Since Bradford’s 1692 defense, printers had used open press doctrine to justify their professional conduct, but “Cato” went further, arguing for the structural role of the printing press that in time became the metaphor of the Fourth Estate familiar to students of the Early Republic. Andrew Hamilton, who was steeped in Cato’s Letters, would use them his 1735 defense of John Peter Zenger against a charge of seditious libel. Hamilton won his case in part by arguing, as Bradford had done, that the jury should be empowered to decide on the law as well as the facts of the case. In this, as in so many previous cases, the jury had proved a useful check on governmental power, but only because the interests of jurors coincided with those of the printers. Whatever progress the dissemination of “Cato” may have signaled for American free press discourse, John Trenchard and Thomas Gordon’s Whig tracts did not necessarily serve as a libertarian clarion call, as Benjamin Franklin’s own career illustrates. Franklin, of course, went on to become the most successful printer in Colonial America. One might therefore assume that his economic as well as his ideological position would make him gravitate towards a libertarian understanding of “the liberty of the press.” Such was not the case. In later 78 Franklin, Writings 1324. 79 New England Courant 49 (July 9, 1721). Reevaluating Press Freedom in Colonial America 91 life Franklin would uphold legislative privilege, the very same repressive power whose exercise against his brother he so much resented. Representing the Pennsylvania Assembly in London, Franklin worked behind the scenes in the 1758-59 case of his one-time friend William Smith and William Moore who had published works critical of the Quaker-dominated assembly’s pacifism. Smith and Moore were jailed for contempt of the Pennsylvania Assembly. Moore appealed his case in London, questioning the power of the assembly summarily to jail for breaches of privilege. Franklin noted in a letter to the Pennsylvania Assembly that had taken care that the solicitors representing the Assembly: should be well instructed; they performed very well, showed that the present Assembly were not Quakers; that the Libel against them was a Breach of Privilege; that all Representative Bodies must have incident to them the Powers exercis’d by the Assembly… That the Powers of Assembly were granted by our Charters and confirm’d by our Laws; and that the Power in Question was, and always had been, exercis’d by all the Assemblies in America, of which Instances were produc’d, which I had furnished. And upon the whole hoping that His Majesty would not be advis’d to infringe the Liberties and Privileges of a whole People in their Representative Body, to gratify a single factious Person, who was a common Dealer in Libels and Disturber of the publick Peace, contrary to the Duties of his Profession.” 80 Franklin’s letter reflects what R.W.T. Martin identifies as the emerging conflict between freedom and openness. Franklin certainly would have agreed with “Cato” that the free press was the people’s “bulwark” against the encroachment of tyrannical power. He would also have conceded that public liberty was endangered when personal liberty became licentious. The free press could not be absolutely open. The Assembly, as the representative of the people, had to have the power to punish abuses of the press. Too much liberty was none at all; it became licentiousness. Without the power to restrain such excesses “common dealers in libels” could infringe “The Liberties and Privileges of a whole People” by slandering their representatives. Wary of the increasing power of colonial Assemblies, the Privy Council disagreed with Franklin and ruled that the inferior Assemblies in America did not have the powers of the House of Commons to jail for breach of privilege. In a 1771 Letter To Joseph Galloway, Franklin would remember the incident. In so doing, however, he did not show any sign that he had changed his mind about the basic principle. If anything, the power of the Colonial Assemblies became even more important as imperial tensions increased. 80 Benjamin Franklin, The Papers of Benjamin Franklin, ed. Leonard W. Labaree et al., vol. 3 (New Haven: Yale UP, 1961) 61-62. 92 C HRISTOPHER H UNTER “Parliament has enough to do with the City of London concerning the Power of the House to imprison for Contempts,” he remarked, noting the jurisdictional dispute that arose when the House of Commons imprisoned an alderman and the Lord Mayor of London to the Tower. Franklin was, he owned “a little diverted in seeing that Power disputed; since… [the] Government here [e.g. in London] would not allow it to our Assemblies… what was then thought Sauce for the Goose, is now found to be Sauce for the Gander.” 81 As amused as Franklin may have been, he did not support John Wilkes, the chief architect of the dispute. Although celebrated by many in the Colonies as a martyr for free speech, Wilkes was no favorite of Franklin. In a letter to his son he wrote that he was sorry to read that Americans were “so indiscreet as to distinguish themselves in applauding his No. 45, which I suppose they do not know was a Paper in which their King was personally affronted, whom I am sure they love and honour. It hurts you here with sober sensible Men, when they see you so easily infected with the Madness of English Mobs.” 82 William Franklin agreed, and published his father’s comment in the Pennsylvania Chronicle. 83 Whatever Franklin’s personal feelings on the subject may have been, the fact that he could read about the debate in American newspapers shows how far the freedom to discuss political affairs in print had come. The first newspaper in the Colonies, a printed version of the then-common manuscript newsletter entitled Publick Occurrences both Forreign and Domestick, was printed in 1690 by Richard Pierce for Benjamin Harris and immediately suppressed. There was nothing scandalous in this; the order for its suppression printed. 84 Boston’s first continuously published newspapers, John Campbell’s Boston Newsletter (April 24, 1704) and William Brooker’s Gazette (Dec 21, 1719) were both authorized publications put out by postmasters. William Bradford’s son Andrew published the American Weekly Mercury in Philadelphia beginning in December 22, 1719, the day after Brooker’s Gazette first appeared. 85 Shortly thereafter, newspapers were being established as organs of political opposition. Such was Zenger’s New 81 Benjamin Franklin, The Papers of Benjamin Franklin, ed. Leonard W. Labaree, Helen C. Boatfield, and James H. Hutson, vol. 12 (New Haven: Yale UP, 1967) 77. 82 Benjamin Franklin, The Papers of Benjamin Franklin, ed. William B. Wilcox et al., vol. 15 (New Haven: Yale UP, 1972) 224. 83 Pennsylvania Chronicle (Dec 26, 1768). 84 “Whereas Some Have Lately Presumed to Print and Disperse a Pamphlet, Entituled, Publick Occurrences, Both Forreign and Domestick: Boston, Thursday, Septemb. 27th. 1690. Without the Least Privity or Countenance of Authority. The Governour and Council… Order That the Same Be Suppressed and Called in” (Boston, 1690). 85 Frank Luther Mott, American Journalism; a History of Newspapers in the United States through 250 Years, 1690-1940 (New York: Macmillan, 1941) 11-26. Reevaluating Press Freedom in Colonial America 93 York Weekly Journal and such was the second Virginia Gazette, published by William Rind, the official printer to the house of Burgesses. In the years preceding the Revolution, newspapers had long been a part of every day life in the colonies. By 1765 all but two colonies (Delaware and New Jersey) had at least one paper, and the larger cities had more than one. 86 By Frank Luther Mott’s count, “there were thirty-seven newspapers in course of publication in the colonies on April 19, 1775, the day of the battles of Lexington and Concord.” 87 In the decades before the war, the increasing availability and openness of American newspapers facilitated a widespread political discussion. During the War, this relative openness radically contracted to the almost complete exclusion Loyalist material. As Arthur Schlesinger put it in a pithy and much-quoted passage, “liberty of speech belonged solely to those who spoke the speech of liberty.” 88 Patriots were more than willing to sacrifice the hard-won openness of their presses on the altar of the greater liberty, and vigilantism ran rampant. Mobs led by Isaac Sears twice attacked loyalist printer James Rivington, and smashed his press. Samuel Loudon, publisher of the New York Packet had a print run of 1,500 copies of an anti-independence rebuttal to Thomas Paine’s Common Sense stolen and burned on New York Common. 89 These were by no means isolated incidents, and the British Army was equally assiduous in suppressing their opponents in the cities under their control. Just as in the seventeenth century, actions against printers were only a minute fraction of the much larger campaign to police not only the printed word but also behavior and speech. In Conclusion Neither ideological nor disciplinary structures are purely reactive. Such defenses of the liberty of the press as are to be found in he Colonial period occur in and around attempts to inhibit the practice of that freedom. It is axiomatic that liberty and suppression are mutually constituting; their relationship is dialectical, not causal. It is no less true in the case of William 86 “There were four papers in Boston and three in New York; while in Philadelphia there were two papers in English and one in German, with another German paper in nearby Germantown. In New England, Connecticut, and Rhode Island each had two papers; and in the South, the two Carolinas each had two. The other four colonies each had one paper, published at its seat of government, making a total of twentythree newspapers. All of them were weeklies” (Mott 43). 87 Mott 95. 88 Arthur M. Schlesinger Jr., Prelude to Independence (New York: Knopf, 1958) 189. 89 Martin 90. 94 C HRISTOPHER H UNTER Bradford in 1692 than Zechariah Chafee in 1920 that clearly articulated rights claims in the absence of a perceived infringement of those rights are just as infrequent as repressive measures without an accompanying threat. Hamilton’s great insight in Federalist 84 is that concepts, like Constitutional amendments, are meaningless so long as they remain abstract. Their significance depends on the very practices to which they give meaning. I have purposely tried to outline the shifting structures of freedom and restraint without fitting them into a teleological narrative of progressive liberalism whose consonance with the expanding empire for liberty are more fortuitous than apt. More than one hundred people were convicted under the Sedition Act of 1918 for every one jailed under the Sedition Act of 1798, and in a country whose founding document includes that allegation that its former monarch “excited domestic insurrections” it remained criminal to publish or disseminate abolitionist material in the South until after the Civil War. In the seventeenth century, when prior censorship was the norm, the idea of the press as the legitimate agent for popular oversight of the government was utterly unknown for the simple reason that the press as an institution did not yet exist. Even within this restrictive atmosphere printers began to think of themselves as separate from the governments at whose behest or sufferance they practiced their profession, a necessary precondition for the development of a public sphere. An emergent “open press” doctrine actually predated and in part facilitated a broader understanding about the uses and limits of the freedom of the press, but even in the eighteenth century that freedom was far from absolute. Just as the restraint of the press has its roots in other kinds of controls, so too does the concept of the liberty of the press emerge from the penumbra of other liberties. In the eighteenth century, prior restraint weakened and disappeared, but it was replaced by an ad hoc combination of subsequent punishments that were, perhaps, not much less effective. Overt acts supplanted bad tendency as the test in sedition cases only in the twentieth century, but this only begs the question of what constitutes a criminally actionable “clear and present danger.” Leonard Levy’s persistence in the conviction that the crime of sedition is anathema to the liberty of the press invited charges of the anachronistic application of modern standards of libertarianism to the eighteenth century, but one might be forgiven for asking, with some of that alleged anachronism, whether we can take seriously a republican claim to liberty that disregards individual rights in favor of a “greater good” - whether, that is, “free” is really an apt designation for a press that is not “open,” or for a political culture that condones the use of all available means including violence to silence opposition. It is not a question Colonial Americans would have asked themselves, but it is a question we should not flinch from asking of Colonial America. Reevaluating Press Freedom in Colonial America 95 Works Cited A True Copy of Three Judgments Given forth by a Party of Men, called Quakers, against George Keith and His Friends. [Philadelphia]: [1692]. Amory, Hugh. “Printing and Bookselling in New England, 1638-1713.” A History of the Book in America. Ed. Hugh Amory and David D. Hall. Cambridge: Cambridge UP, 1999. 83-116. Bartlett, John Russell, ed. Records of the Colony of Rhode Island and Providence Plantations. Vol. 1. Providence, 1856. Blackstone, William. Commentaries on the Laws of England. Vol. 4. Oxford: Clarendon Press, 1769. Botein, Stephen. “‘Meer Mechanics’ and an Open Press: The Business and Political Strategies of Colonial American Printers.” Perspectives in American History 9 (1975). 127-225. Chafee, Zechariah. Freedom of Speech. New York: Harcourt, Brace and Howe, 1920. Corwin, Edward S. “Freedom of Speech and Press under the First Amendment: A Resume.” Yale Law Journal 30 (1920). 48-55. Cushman, R.E. Rev. of Free Speech in the United States, by Zechariah Chafee American Political Science Review 36.1 (Feb, 1942). 136-138. Duniway, Clyde Augustus. The Development of Freedom of the Press in Massachusetts. 1906; New York: B. Franklin, 1969. Eldridge, Larry D. A Distant Heritage: The Growth of Free Speech in Early America. New York: New York UP, 1994. Franklin, Benjamin. The Papers of Benjamin Franklin. Ed. Leonard W. Labaree et al. Vol. 3. New Haven: Yale UP, 1961. —. The Papers of Benjamin Franklin. Ed. Leonard W. Labaree, Helen C. Boatfield, and James H. Hutson. Vol. 12. New Haven: Yale UP, 1967. —. The Papers of Benjamin Franklin. Ed. William B. Wilcox et al. Vol. 15. New Haven: Yale UP, 1972. —. Writings. Ed. J.A. Leo Lemay. New York: Library of America, 1987. Green, Bartholomew. Printer’s Advertisement. Boston, 1701. Green, James, “The Book Trade in the Middle Colonies, 1680-1720.” A History of the Book in America. Ed. Hugh Amory and David D. Hall. Cambridge: Cambridge UP, 1999. 199-223. Henning, William W. ed., The Statutes at Large, Being a Collection of all the Laws of Virginia. Vol. 1. Richmond, 1809. Labaree, Leonard Woods. Royal Instructions to British Colonial Governors, 1670-1776. Vol 1. New York: D. Appleton-Century, 1935. Levy, Leonard W. Emergence of a Free Press. New York: Oxford UP, 1985. —. Legacy of Suppression: Freedom of Speech and Press in Early American History. Cambridge: Belknap-Harvard UP, 1960. —. “On the Origins of the Free Press Clause.” 32 UCLA Law Review. (1984). 177-218. Martin, Robert W.T. The Free and Open Press: The Founding of American Democratic Press Liberty, 1640-1800. New York: New York UP, 2001. Mott, Frank Luther. American Journalism; a History of Newspapers in the United States through 250 Years, 1690-1940. New York: Macmillan, 1941. New England Courant 49 (July 9, 1721). —. 45 (June 11, 1722). —. 80 (Feb. 11, 1723). Neville, Henry. The Isle of Pines. London, 1668. 96 C HRISTOPHER H UNTER Paine, Thomas. Almanack. Boston, 1719. Pennsylvania Chronicle. (Dec 26, 1768). Publius [Hamilton, Alexander, James Madison, John Jay]. The Federalist. New York, 1788. Rabban, David M., “The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History.” Stanford Law Review 37.3 (1985). 795-856. Reeves, John and Lodowick Muggleton. Answers to Several Queries. London, 1654. —. A General Epistle, from the Holy Spirit: unto all prophets, ministers, or speakers in the world. London, 1653. —. A letter presented unto Alderman Fouke, Lord Mayor of London. London, 1653. —. A Remonstrance from the Eternall God, declaraing severall spirituall transactions unto the Parliament, and Common-wealth of England. London, 1653. —. A Transcendent Spiritual Treatise upon Severall Heavenly Doctrines from the Holy Spirit of the man Jesus, the only true God. London, 1652. Richardson, James D., ed., A Compilation of the Messages and Papers of the Presidents 1789-1897. Vol. 1. Washington [D.C.]: U.S. Govt. Print. Off., 1896. Rosenberg, Norman L. Protecting the Best Men: An Interpretive History of the Law of Libel. Studies in Legal History. Chapel Hill: University of North Carolina Press, 1986. Schlesinger Jr., Arthur M. Prelude to Independence. New York: Knopf, 1958. Siebert, Fredrick Seaton. Freedom of the Press in England, 1476-1776, the Rise and Decline of Government Controls. Urbana: U of Illinois P, 1952. Stevenson, Archibald E. “The World War and Freedom Of Speech.” Rev. of Free Speech in the United States, by Zechariah Chafee. New York Times Book Review and Magazine. (13 Feb., 1921). 9. Thorpe, Francis Newton. The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State[s], Territories, and Colonies Now or Heretofore Forming the United States of America. Vol. 5. Washington [D.C.]: Govt. Print. Off., 1909. “Whereas Some Have Lately Presumed to Print and Disperse a Pamphlet, Entituled, Publick Occurrences, Both Forreign and Domestick … Order That the Same Be Suppressed and Called in.” Boston, 1690. Whittemore, N. Almanack. Boston, 1719. Willard, Samuel. Some Miscellany Observations on Our Present Debates. Philadelphia, 1692. Williams, John. A Faithful History of Remarkable Occurrences. Boston, 1720. Winthrop, John. Journal of the Transactions and Occurrences of the Settlement of Massachusetts. Hartford, 1790. Wroth, Lawrence C. A History of Printing in Colonial Maryland, 1686-1776. Baltimore: Typothetae, 1922.