The magazine of history with notes and queries, Vol. II, No. 6, December 1905

by Various

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 VI—Concluded

It is also important to remember that the press appealed to a very much smaller percentage of the population in colonial times than it does to-day. “In Boston with a population of 8000, Campbell succeeded in selling but 3000 copies of his News Letters when it was the only newspaper printed in America.”[1] Later the circulation of all the papers increased, but it was still but a small proportion of the colonists who received first hand the opinions of the editor. And this body of subscribers was for the most part of the professional class or the wealthier part of those in trade, persons naturally of a conservative temper and apt to look with disfavor on any strong attack on or disregard of legalized and established authority.

In New York, owing to the peculiar way in which the press was introduced, it for the first forty years of its existence did nothing to put itself in antagonism to the government; in Massachusetts it at first was given a subvention by the General Court; in South Carolina a comparatively large sum was offered to any printer who would brave the dangers of the climate and establish a press. With these exceptions its early days were passed under governments which viewed with dislike or suspicion any attempts on the part of the printers to take an intelligent part in the questions that were interesting the people. For this reason the press in all the colonies early assumed a position of antagonism to the constituted authority and in return the government took every opportunity to hurt it by means of prosecutions in the courts or inquisitorial proceedings before the Governor and his Council. It is interesting to note however that these proceedings lost almost all their terrors as the period of the Revolution approached, for the press received more and more the support of the people, who had learned to appreciate the wide circulation which the newspapers gave to the new doctrines; thus we constantly find the grand juries refusing to find true bills against the printers, in this way reducing the Governor to the use of Informations which were looked on with suspicion by the people and seldom resulted in a verdict of Guilty.

But the greatest influence of the press was exerted through the flood of hand-bills and pamphlets which ever increased in volume as the period of the Revolution drew near. Printed in large numbers and circulating everywhere, we find Governors reporting to the home government that it was impossible to stop them, and that they were doing incalculable harm.

If now we attempt in a very brief way to review the whole matter of the struggle for the liberty of the press we shall find:

First: That the system in vogue in America, as in England, up to the close of the seventeenth century, was a system of administrative control by the Crown through appointed officers called Censors, to whom all writings had to be submitted before publication and who either gave or refused permission to print. That this Censorship was shared by Church and State in some instances only complicated the situation.

Second: With the failure to pass the Licensing Bill in 1695 the press became in all parts of the English dominion freed from this censorship; but a system of judicial control took its place, for all publications were now subject to the law of libel, and an attack on the dominant party was held by the courts to be a libel, and a censure of the Governor to be a personal reflection on the King. In Franklin’s case in England in 1731,[2] it was laid down by Lord Raymond that the court alone was to judge of the criminality of a libel, to the jury was given only the right to decide as to the fact of publication.

In England that doctrine continued in force until the passage of Mr. Fox’s Libel Bill in 1792. But fifty-eight years earlier the Zenger case (in 1734) had established in principle the freedom of the press in the colonies, by settling the right of juries to find a general verdict in libel cases. We have said “in principle,” for this right, which the colonists soon grew to consider as a part of their common law, was yet in practice more or less nullified in the different colonies according as the Governor was able to impose his will on the courts or was opposed by an intelligent public opinion.

In other words, liberty of the press did not and could not exist in the colonial period, but the people accepted the principle and when they obtained the opportunity incorporated it in Bills of Rights and State Constitutions. The Continental Congress in issuing, on Oct. 21st, 1774, an “Address to the people of Canada” proceeded to detail and enlarge upon the rights to which English subjects were entitled, and among them placed the freedom of the press.[3]

We see the same point made by State after State.

Maryland, 1776: “That the liberty of the press ought to be inviolably preserved.”

Virginia, 1776: “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.”

Pennsylvania, 1776: “That the people have a right to freedom of speech, and of writing, and of publishing their sentiments; therefore the freedom of the press ought not to be restrained.”

Georgia, 1777: “Freedom of the press and trial by jury to remain inviolable forever.”

Vermont, 1777: “That the public have the right to freedom of speech and of writing and publishing their sentiments; therefore the freedom of the press ought not to be restrained.”

South Carolina, 1778: “That the liberty of the press be inviolably preserved.”

Massachusetts, 1780: “The liberty of the press is essential to the security of freedom in a state; and ought not, therefore, to be restrained in this commonwealth.”

New Hampshire, 1784: “The liberty of the press is essential to the security of freedom in a state; and it ought, therefore, to be inviolably preserved.”

Pinckney’s Plan of 1787: “The Legislature of the United States shall pass no law touching or abridging the liberty of the press.”

Delaware, 1792: “The press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity, and any citizen may print on any subject, being responsible for the abuse of that liberty. In prosecutions for publications investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury may determine the facts and the law, as in other cases.”

After the Federal Convention came together in 1787 it was proposed to insert in the Constitution, “the liberty of the press shall be inviolably preserved.” This was defeated by six states against five.[4] But when the different States afterwards sent to the first Congress the proposals from which the first ten Amendments were selected we find in nearly all some reference to the liberty of the press. The article on the subject from Massachusetts was selected and now appears as a part of the First Amendment to the Constitution, “Congress shall make no law ... abridging the freedom of speech or of the press.”[5] And since that time nearly every Constitution drawn up by the different States has contained an admission of the principle so long contended for by supporters of the rights of the press, that, as David Hume says, “its liberties, and the liberties of the people must stand or fall together.”