THE LIBERTY OF THE PRESS
IN THE AMERICAN COLONIES BEFORE THE REVOLUTIONARY WAR, WITH PARTICULAR REFERENCE TO CONDITIONS IN THE ROYAL COLONY OF NEW YORK.
CHAPTER IV (Concluded)
THE LIBERTY OF THE PRESS IN NEW YORK
In the fall of 1767 a pamphlet of which a few copies were reprinted from a London edition, appeared in New York and created considerable excitement. It was entitled “The Conduct of Cadwallader Colden, Esq. Lieutenant-Governor of New York, relating to the judges’ commissions:—Appeals to the King; and Stamp Duty.” It had been presented by the grand jury in October as a libellous reflection on the Council, the Assembly and the Courts of Justice in the province of New York, and, as its sub-title would indicate, was a defense of Colden’s conduct, when acting as Governor. In the course of the argument reference was made to the action of the two branches of the Assembly in these matters, and both bodies took umbrage and appointed a joint committee to investigate, and if possible discover, the author and the person responsible for the republication in New York.[[3]]
The committee carried on its work with vigor, summoning among others the printers of the province and also Colden’s son and son-in-law,[[4]] and the matter finally ended in a report by the committee to the General Assembly and the adoption of the following resolutions.[[5]]
“Resolved, ... That the said pamphlet highly reflects upon the honor, justice and dignity of his Majesty’s Council, the General Assembly, and the Judges of the Supreme Court; and contains the most malignant aspersions, upon the inhabitants of this colony in general.
Resolved, That the said pamphlet tends to destroy the confidence of the people, in two of the branches of the legislature, and the officers concerned in the due administration of justice; to render the government odious and contemptible, to abate that due respect to authority, so necessary to peace and good order, to excite disadvantageous suspicions and jealousies in the minds of the people of Great Britain, against his Majesty’s subjects in this colony, and to expose the colony in general, to the resentments of the crown and both houses of Parliament.
Resolved, That as the House has not been able to discover the author of the said pamphlet, a dissolution of the general assembly is speedily expected; his Excellency the Governor be humbly requested, in case the author should hereafter be discovered, to order a prosecution to be issued against him, that such punishment may be inflicted on so great an offender as the law directs.”
This is an instance where neither branch of the Assembly can force an avowal of authorship from those who are suspected; a little later we shall find in the Parker-McDougall case that the Governor and Council did not consider it beneath their dignity to resort to very questionable actions when they were trying to find the person responsible for a pamphlet which displeased them.
It is not necessary to enter here on the details of the circumstances which finally led to the repeal of the Stamp Act and the passage of the Mutiny Act.[[6]] The more extreme party had viewed with great disquietude the passage of the latter act, and the way in which the Assembly had yielded in the matter of meeting its provisions. When the Governor, Sir Henry Moore, died on Sept. 11th, 1769 and Lieutenant-Governor Colden once more took up the reins of government, the feeling was intensified, and on Dec. 16th, two printed papers appeared, the first signed “A Son of Liberty,” and the second “Legion” in which “the betrayed inhabitants of the City and Colony of New York” were invited to meet on the following Monday at the House of De La Montayne in the Fields near the City, and there take steps to set forth their rights and vindicate the privileges which the Assembly seemed unable to successfully assert.
At this meeting which was largely attended a speech was made by John Lamb a prosperous merchant of the city.
Meanwhile the Assembly had had its attention called to the papers and had declared the first to be “false, seditious and infamous,” and had branded the second as “an infamous libel,” and had requested the Lieutenant-Governor to issue his proclamation, offering a reward of £100 for the discovery of the author.[[7]] After the meeting in the Fields the Assembly ordered Lamb to appear before it, and examined him as to “his conduct about the two libels” but as it did not appear that his actions at the Fields had been in consequence of the two libels he was allowed to depart.[[8]] But the Assembly had not given up all hope of finding and prosecuting the author of the two pamphlets. One of Parker’s journeymen for the sake of the reward, gave information against him, and on Feb. 7th Parker was arrested and examined by the Governor and Council. While the latter was detained in a room off the Council Chamber, his apprentices were arrested, and brought before the Council, and although for a long time they stoutly refused to admit any knowledge of the papers, one of them by gross intimidation was finally brought to admit that the papers had been printed in his master’s office.
Parker was then brought back before the Council, told that his apprentice had admitted that it had been printed by him, and threatened, in case he refused to name the author, with the loss of his position as Secretary of the Post Office. Finally Parker, being promised indemnity, gave information which resulted in the arrest on a bench warrant of Alexander McDougall, who was taken before the Chief Justice, and on refusal to admit the fact of authorship, committed to prison.
Some seven years before this, in 1763, John Wilkes, member of Parliament, and editor of the “North Briton” had been arrested on a general warrant for having attacked in No. 45 of his journal the Bute administration and abused the King, charging the latter with falsehood. Wilkes was discharged on the ground of parliamentary privilege, and the question being carried before the Chief Justice, Lord Camden, the latter declared general warrants to be illegal. Wilkes was expelled by a subservient Parliament, but was regarded by great numbers in the nation as a martyr to the cause of liberty and freedom of discussion.
Now it happened that the vote of the Assembly declaring the hand bills libellous had been printed on the forty-fifth page of the journal. For either this reason, or more probably because of No. 45 of the “North Briton” (which number was often used as a party-cry in England), “Forty-five” became the watchword of the Sons of Liberty, at this time a numerous body. McDougall was overrun with visitors at the jail and was forced to issue in the “New York Weekly Journal” for Feb. 15th, a card to his friends in which he appointed the hours from three to six in the afternoon to receive them.
In the same number of the Journal appears an account of one of these receptions:
“Yesterday, the forty-fifth day of the year, forty-five gentlemen, real enemies to internal taxation, by, or in obedience to external authority, and cordial friends to Capt. McDougall, and the glorious cause of American liberty, went in decent procession to the New Gaol; and dined with him on forty-five pounds of beef, cut from a bullock of forty-five months old, and with a number of other friends who joined them in the afternoon, drank a variety of toasts, expressive not only of the most undissembled loyalty, but of the warmest attachment to Liberty, its renowned advocates in Great Britain and America, and the freedom of the press. Before the evening the whole company, who conducted themselves with great decency, separated in the most cordial manner, but not without the firmest resolution to continue united in the glorious cause.” In April he was indicted by the Grand Jury for libel, and being brought to the bar pleaded not guilty and was admitted to bail.
While matters were in this condition the Assembly again took the matter up. On Dec. 13, 1770, the Speaker was directed to order McDougall to attend at the Bar of the House to answer a complaint made against him by Mr. De Noyellis for being the supposed author or publisher of the paper signed “A Son of Liberty.”[[9]] On his attending, McDougall was asked whether he was or was not the author of the paper. He replied “That as the grand jury and house of Assembly had declared the paper in question to be a libel, he could not answer the question. Secondly, that as he was under prosecution in the Supreme Court, he conceived it would be an infraction of the laws of Justice to punish a British subject twice for one offense, for that no line could be run, that he might be punished without end; but he would not be understood to deny the authority of the house to punish for a breach of privilege, when no cognizance is taken of it in another Court.”
The Assembly decided that this was a contempt of the authority of the house, and, since he refused to ask pardon of the house, he was ordered into the custody of the Sergeant-at-Arms, and placed in the county jail.
A writ of Habeas Corpus was sued out before the Court of Justice, whereupon the sheriff notified the house and asked what he should do. A committee was appointed on Jan. 22d, 1771, “to search the journals of the house of Commons, for precedents in cases where writs of habeas corpus have been issued, to bring persons committed by the Commons before other Courts.” The committee reported on Feb. 16, that several precedents had been found, which precedents were ordered printed in the Journal of the House. It was also determined that the sheriff should be indemnified for his action in not obeying the order of the Court.
The Assembly was prorogued on March 4, 1771, and did not come together till Jan. 7, 1772, and we hear no more of the McDougall affair. About this time Parker died and as he was the principal witness in the case it was probably considered useless to bring up the indictment before the Court.
From this time on, pamphlets, opposing the Crown and its policy of repression, continued to appear in ever increasing number, but the government made no serious sign of opposition, and seemed to have given up in despair the attempt to control a press which the majority of the people warmly supported.
CHAPTER V
THE PRESS IN THE SOUTHERN COLONIES
In the Southern colonies we find, as we should expect, an absence of any very important cases bearing on the subject under consideration.
The ideas of Sir Wm. Berkeley, (for thirty-eight years Governor of Virginia), in regard to the dissemination of information, may be gathered from a reply made by him to some enquiries of the Lords Commissioners of Foreign Plantations.
The question being “What course is taken about the instructing the people, within your government in the Christian religion; and what provision is there made for the paying of your minister?” his answer is: “The same course that is taken in England out of towns: every man according to his ability instructing his children. We have forty-eight parishes, and our ministers are well paid, and by my consent should be better if they would pray oftener and preach less. But of all other commodities, so of this, the worst is sent us, and we had few that we could boast of, since the persecution in Cromwell’s tiranny drove divers worthy men hither. But, I thank God, we have not free schools nor printing; and I hope we shall not have these hundred years. For learning has brought disobedience and heresy and sects into the world; and printing has divulged them and libels against the government. God keep us from both.”[[10]]
At the beginning of the last quarter of the seventeenth century Virginia suffered from internal disorders (as Bacon’s Rebellion), due to political disturbances having their origin in the English Civil War. Lord Culpepper, the Governor, was inclined to stretch the royal prerogative to its furthest limit and met the murmurings of the Assembly with a cold and gloomy dignity.[[11]]
The Assembly insisting on its rights as given in the charters, Lord Culpepper dissolved the body and endeavored to stamp out all remembrance of past freedom. In the Bland MS. p. 498,[[12]] we find the following entry: “Feb. 21, 1682, John Buckner called before the Lord Culpepper and his Council for printing the laws of 1680, without his Excellency’s license, and he and the printer ordered to enter into bond in £100 not to print anything thereafter, until his majesty’s pleasure should be known.” Thus, the press was strangled at its birth, since we have no record or copy of any other work, and that the government continued to watch carefully lest it should appear again is proven by the Instructions of Lord Effingham, the next Governor, in which he is ordered “to allow no person to use a printing press on any occasion whatsoever.”[[13]]
In the period between 1733, when Wm. Parks established his press at Williamsburg, and 1765 when Wm. Rind began to issue a paper at Williamsburg, there was but the single press in Virginia, and being the organ of the government it may be easily imagined that it had no great temptation to struggle for the liberty of the press.
With the exception of libel suits against Wm. Parks about the year 1740 (by which the House of Burgesses sought to punish him for publishing an article reflecting on one of the members), and the presentment in 1766 of Rind, and of Purdie and Dixon, the publishers of the two Virginia Gazettes (for referring in a way considered improper, to the bailment of Colonel Chiswell), in both of which instances the prosecution failed utterly in its attempt,—there is nothing on the subject which claims our attention.
In South Carolina the press was encouraged, liberal inducements being held out to any printer who would settle in the colony. As a result of this policy we find the printing press in operation from the year 1730, a newspaper being published in 1731. In the early period of the history of the press in the colony the only cause of serious trouble that we find was one involving Peter Timothy, of the Gazette, who had published a letter by one Hugh Bryan in which occurred the statement that “the clergy of South Carolina broke their Canons daily.” With Timothy were also arrested Bryan and George Whitefield, the Evangelist, who had corrected the manuscript. All three were admitted to bail, and the matter was dropped.
In 1773 one of the most important cases that ever occurred in the colonies came about through the publication in the South Carolina Gazette, then owned by Timothy and a partner whom he had lately taken, named Thomas Powell, but managed entirely by the latter, of a portion of the proceedings of the Council on the previous day. Being summoned to attend the body, he admitted that he was the publisher of the Gazette, and that he had printed the proceedings, which on being asked he said had been brought to him by the Hon. Wm. Henry Drayton, a member of the Council. The Council then adjudged him “guilty of a high breach of the privileges, and a contempt of the house.”
Powell refused to ask pardon of the Council which then,
“Resolved, That Thomas Powell, who hath this day been adjudged by this house, to have been guilty of a high breach of privilege, and a contempt of this house, be for his said offense committed to the Common Gaol of Charleston; and that his Honor, the President of this house, do issue his warrant accordingly.”
Mr. Drayton, who was present, and had acknowledged his share in the affair, protested strongly, but without avail, and Powell was placed in prison. Two days later, on Sept. 2d, the Hon. Rawlins Lowndes, and Mr. George Gabriel Powell, the former being Speaker of the Assembly, and the latter one of the members of the body, and both being justices of the peace, had Powell brought before them on a writ of Habeas Corpus and discharged him. The Council then took action in these resolutions:
“Resolved, That the power of commitment is so necessarily incident to each house of Assembly, that without it neither their authority nor dignity can in any degree whatsoever be maintained or supported.
Resolved, That Rawlins Lowndes, Esqr., Speaker of the Commons House of Assembly, and George Gabriel Powell, Esqr. member of the said house, being two justices of the peace, unus quorum, lately assistant judges and justices of his majesty’s court of Common Pleas, have, by virtue of habeas corpus by them issued, caused the body of T. Powell to be brought before them, on the second of this instant September, and the said justices, disregarding the commitment of this house, did presumptuously discharge T. Powell out of the custody of the sheriff under the commitment of this house.
Resolved, That the said justices have been guilty of the most atrocious contempt of this house.”
The resolution which follows calls upon the Assembly to disavow the action of these men and give them up to receive proper punishment. This the Assembly refused to do, and then both houses carried the matter on petition to the Crown, and it had not been settled when the breaking out of the Revolutionary War put an end to the affair.
In this case the attempt of the upper house to destroy the liberty of the press, was opposed by the desire of the lower house to uphold it, and the fact that this occurred on the eve of the Revolution is significant, teaching us that even to the last the principle that the press must be free had not been established in the American colonies.
CHAPTER VI
CONCLUSION
We have had brought before us all the instances of any importance, throughout the American colonies of efforts on the part of the government to control the liberty of the press. Let us now attempt to deduce from them the general principles which governed the matter.
In the first place it is clear that, as the several colonies differed the one from another in their relations with and dependence upon the home government and their Governor, who represented that government, so too the press was in some colonies far more free from control than in others. In Massachusetts, where interference from outside was always resisted, control by the Governor was seldom attempted. Before the administration of Governor Andros the Crown made no attempt to interfere; Andros himself appointed Edward Randolph (vide p. 9) as licenser, and Bartholomew Green, the Boston publisher testifies (vide p. 10) to the fact that in his time (the end of the seventeenth century), Lieutenant-Governor Stoughton took a keen interest in the productions of the press, and refused to allow any publications without a previous application to him, with a copy of the matter to be published. After this period the control by the Crown again was lost in that as also in political matters.
In Pennsylvania we have an instance of a Governor representing an individual proprietor. Here the struggle between the people and Penn’s representative in political matters was carried over into the field occupied by the press, and so we find in the early period of the existence of the press a dual authority exercised, the Crown and the Quarterly Meeting, both claiming the right of censorship (vide p. 23). In the first half of the eighteenth century the power of the Quakers passed away as far as our subject is concerned, but the control exercised by the Crown continued, although more and more questioned, until the breaking out of the Revolutionary struggle.
In New York the Governor himself was responsible for the introduction of the press and for forty years (1692–1734), it took no active part in political agitations, maintaining a cautious neutrality under Bradford. In this colony it was rather a question of the right to freedom of speech, a question raised in the prosecution of Col. Nicholas Bayard. From the period of the Zenger trial newspapers continued to increase and the twenty-five years before 1775 witnessed a continuous production of pamphlets in which the Crown and its representative were attacked, the efforts to punish by the government being in almost every case entirely futile. The press divides itself into two groups, the supporters and opponents of the Governor, and the party newspaper becomes a reality.
In the Southern colonies the press never attained any liberty, the government being ever on the watch to repress the smallest attempt at freedom of discussion and criticism.
In the second place we find that the attitude assumed by the inhabitants of the colonies, as expressed by the actions of their representatives, varied in the different colonies. We do find this general similarity, that in all there was a very jealous upholding of the rights of the legislative body as against criticism. That can be easily established by a perusal of the Minutes of any of the Assemblies. But in Massachusetts a distinction seems to have been early established between a criticism of the proceedings of the General Court as such, and a criticism of the policy of the government. In Pennsylvania this view was only in the latter period arrived at; in New York the General Assembly was constantly taking offense at writings appearing in the newspapers or distributed in the form of pamphlets; while in Virginia the question never arose because there was no criticism.
Everywhere we find that there was, as time goes on, a general advance towards freedom of discussion. But this is best seen in nonpolitical matters. With the failure by Parliament in 1695 to renew the Licensing Act all publication became at least theoretically free except in so far as it was restrained by the law of libel. To just what extent this law could be stretched was always a matter of dispute. The maxim “the greater the truth, the greater the libel” must certainly have exercised an influence to deter the publications of the time from the discussion of private affairs. In fact in many instances the news contained in an issue of a newspaper was practically nothing, the few columns being occupied with a very bald statement of Indian affairs, or the relations with France or perhaps a short account of something which had taken place in England or on the Continent. The needs of the community, as better roads or the impounding of wandering cattle, were lightly touched on, but there was but slight evidence of any conception of the idea that the press could lead and direct public opinion as to municipal affairs.
In political matters not directly affecting the Crown there was also a slight advance towards freedom of discussion, which, as the time of the Revolution approached, became very much extended. But here again no general rule can be established for the more radical colonies, as Massachusetts, would naturally be far in advance of the more conservative, while between would stand New York.
Of one thing we may be confident. In no colony would the Governor, as representing the Crown, permit a criticism of its actions to pass without censure, and, if possible, punishment. When the Evening Post of Boston (vide p. 14) published in 1741 the paragraph in regard to the expected overthrow of the Walpole Ministry, the Attorney-General was at once ordered to file an Information against the printer, Thomas Fleet, and although no further proceedings were ever taken, the omission was due rather to want of confidence in the Massachusetts jury than to any leniency on the part of the Governor. In the case of McDougall (vide p. 65), we find the writer of a pamphlet obnoxious to the Crown kept in prison even against a writ of Habeas Corpus, and only released when the death of the principal witness in the case made his conviction impossible.
The liberty of the press was still further curtailed by the influence exerted by certain classes in the community. There was always a strong feeling among those who had grants of land (either directly from the Crown or by the Crown as confirmatory of purchases already made from the Indians), against any discussion of their rights over those who were their tenants. This influence would of course be of importance only in the colonies where grants were numerous, as in the colony of New York. But another class influence, that of the Clergy, was far stronger at all times and universal in its extent. In Massachusetts and Pennsylvania it is hardly possible to overestimate the importance of this influence, and in none of the colonies can it be neglected if we desire to properly appreciate the difficulties that faced the printer in his struggle for the right of free discussion. The troubles of Wm. Bradford, the elder in Pennsylvania (vide p. 26), and of James Franklin in Massachusetts (vide p. 11), give us a pretty clear idea of the troubles that would beset the man who did not keep himself out of controversy. Just as the New England Election Sermons give us perhaps the best means of understanding the influence of the Clergy in the field of politics, so these quarrels between printer and Quarterly Meeting or Presbytery show us the feeling toward freedom of discussion.
Livingston Rowe Schuyler.
New York City.
(Concluded next month.)