Conceived in Liberty (122 page)

It is certainly significant that of the hapless defendants appearing before the New York Assembly twenty years after Zenger, none bothered to justify himself on the basis of liberty of the press. Editor James Parker, battling for his own conception of freedom of the press in 1759, summoned up the most enlightened of American opinion: “Liberty truly reigns,” wrote Parker, where “everyone hath a privilege of declaring his sentiments upon all topics with the utmost freedom, provided he does it with proper decency and a just
regard to the laws.” And the laws, let it not be forgotten, included punishment of seditious libel and breach of parliamentary privilege. Indicative of more reactionary opinion was an editorial in 1753 by a trio of prominent young New York lawyers and friends of Parker. These lawyers—William Livingston, John Morin Scott, and William Smith—radical republicans all, averred that wherever a printer “prostitutes his art by the publication of anything injurious to his country it is criminal... it is high treason against the state.” Treason, of course, constituted a capital crime, in contrast to the mere misdemeanor involved in seditious libel.

Thus, far from the Zenger case establishing freedom of the press in either thought or action, we find New York opinion a generation later backsliding to the pre-Zenger status quo. James Alexander’s narrow advance for the freedom of the press turned out to be an isolated spark rather than the spearhead of a mighty move forward. During the remainder of the colonial period, only Thomas Bollan (in 1766), an eminent lawyer in Massachusetts, reached the modest height of Alexander’s devotion to freedom of the press.

Nor were the points pressed by the Zenger defense original, as some writers have stated. The principle of truth as a defense against libel was taken by Alexander from the famous
Cato’s Letters
written in the early 1720s by two leading English liberals, John Trenchard and Thomas Gordon. The argument that the jury should decide the law as well as the facts in seditious libel was explicitly put forward in 1692 by William Bradford, defendant in the first criminal trial for seditious libel in the colonies.
*
Moreover, Bradford’s trial judge was convinced by his argument and so instructed the jury, which deadlocked on the issue. Bradford’s successful example was followed four years later in Massachusetts by Thomas Maule, a Quaker merchant, who had published a book attacking tyranny in Massachusetts Bay. Maule also succeeded and was acquitted by the jury, but on religious rather than on freedom-of-the-press grounds.

The case of William Bradford highlights an ironic aspect of the Zenger affair. Bradford was soon appointed royal printer by Governor Fletcher of New York, who at that time was briefly in control of Pennsylvania. Bradford’s minimal devotion to freedom of the press, despite his own experiences, is shown by his editorship of the very fawning and licensed
New York Gazette
against which Zenger and his backers were rebelling. Bradford’s reaction to the arrest of Zenger was characteristic: he condemned the defendant for publishing “pieces tending to set the province in a flame and to raise sedition and tumults.” A further irony is the earlier role of the presumed champion of freedom of the press, Andrew Hamilton. In 1719, Bradford’s son Andrew founded the first newspaper in Philadelphia, the
American Weekly
Mercury.
Three years later, the Council hauled young Bradford before it to answer the charge of publishing a pamphlet and article criticizing the government. Bradford not only humbly apologized but treacherously tried to place responsibility for the printing on his assistants. The governor and Council, not yet mollified, ordered Bradford that “he must not for the future presume to publish anything relating or concerning the affairs of this government or the government of any other of His Majesty’s colonies without the permission of the governor or secretary of the province.” Such was the state of freedom of the press in colonial Pennsylvania. The ironic twist is the fact that one of the councillors laying down this appalling and despotic order was none other than Andrew Hamilton.

As it happened, Andrew Bradford was again in trouble in 1729 when his
Mercury
published a letter critical of the British government. The Council of Pennsylvania denounced the letter as “a wicked and seditious libel.” Bradford was jailed and his home and shop searched. Characteristically, Bradford saved himself by pleading innocence and naming the author as a Reverend Mr. Kimble of Long Island. Bradford was recommitted to jail for his sins but was finally released for his cooperative attitude. Again it is interesting to note that the recorder of the Council and one of the major persecutors of Bradford was Andrew Hamilton. Hamilton, moreover, was able to use the young and ambitious Benjamin Franklin to pursue a vendetta against Bradford: by aiding Franklin’s new
Pennsylvania Gazette
against the rival
Mercury
and by giving Bradford’s coveted public printing contract to his young protégé. It is no surprise that in this intercolonial struggle of factions, Andrew Bradford should join his father in taking a leading role in approving the persecution of Zenger. Bradford’s acid stricture against Hamilton that a “single attempt on the side of liberty” hardly overweighed Hamilton’s long record of hostility to a free press, is not refuted by the Bradfords’ own lack of consistent dedication to the libertarian cause.

Neither did the Zenger case establish freedom of the press in the colonies beyond New York. We have already seen its lack of influence in Massachusetts. In 1758, the Quaker-run Pennsylvania Assembly decided to take revenge on its old enemy, the Reverend William Smith, an Anglican, a leader of the Proprietary party, and the head of the University of Pennsylvania. Smith was an outstanding advocate of war against the French and furthermore had proposed disenfranchising the Quakers. Smith’s future father-in-law, Judge William Moore, had been investigated in late 1757 for conduct of his office. The judge’s defense was printed in Smith’s German-language newspaper (as well as in other papers) and the Assembly used this as an excuse to arrest Smith and Moore for criminal libel of itself. Moore was imprisoned for five days and convicted by the Assembly for “false, scandalous, virulent, and seditious libel” of itself. The public hangman was ordered to burn the publication, and the sheriff to keep him in jail
indefinitely and to ignore any writs of habeas corpus. After this act of high-handed despotism, the Assembly turned its tender ministrations to the Reverend Mr. Smith. Smith was now charged with abetting the publication of the vicious libel by Moore. The Assembly took the precaution of voting Smith’s guilt by a large majority even
before
his so-called trial began, thereby launching the fascinating procedure of deciding upon the verdict before the trial was under way. The imprisoned Smith was denied bail and the Assembly took the further pretrial precaution of not permitting Smith either to dispute its authority or to argue that Moore’s article was not a libel.

Witnesses against Smith and Moore were procured by intimidation. Smith’s friend, Dr. Phineas Bond, first refused to answer questions against Smith. He was thereupon found guilty of “high contempt” by the Assembly, and thrown into jail for an indefinite period. After a few hours of this treatment, Bond changed his mind and gave testimony along with other chastened friends of Smith. Anthony Ambruster, printer of the German paper involved, also proved an easy mark for the Assembly. At first refusing to answer certain questions, Ambruster was committed to jail indefinitely; after one day he begged the Assembly’s pardon and answered all of its questions.

The “trial” of Smith, with the Assembly functioning as prosecutor, judge, and jury with its verdict already pronounced, proceeded to its foregone conclusion. Smith was denied the privilege of appeal to the king, and was sentenced to jail until he should purge himself of his crime by humble submission and confession of error. Smith proved a tougher nut to crack than the witnesses. He rose to protest his innocence and, “striking his hand upon his breast, assured them no punishment they could inflict, would be half so terrible to him, as the suffering his tongue to give his heart the lie.”
*
Smith also had the courage and the vision to invoke at least fleetingly the freedom of the press as part of his defense. Smith’s noble and dramatic speech moved several people in the audience to burst into applause. They were of course promptly arrested, and only released after being forced to beg the pardon of the mighty Assembly. As for Smith, he was returned to jail for an indefinite term, and the sheriff was again ordered to disregard any writs of habeas corpus.

The embattled Smith and Moore petitioned the chief justice and the governor for habeas-corpus writs, but the highest court ruled that while the Assembly sat in session its power to punish for breach of privilege was absolute. Smith and Moore were only released when the Assembly was recessed in three months’ time, but they were arrested again in three weeks when the Assembly reconvened. Fortunately, the Assembly adjourned for the summer and the hapless prisoners were again released. But, on meeting
again in the fall, the Assembly yet again ordered the arrest of Smith and Moore. This time the two victims had wisely turned fugitives and could not be found. In hiding, Moore courageously published another attack on the Assembly. Once again a new session of the Assembly reordered his and Smith’s arrest. But Smith had fled to England to appeal to the Crown, while the Assembly continued to seek the elusive Moore.

In England, Smith’s battle against the despotism of the Assembly was strenuously opposed by that great fighter for freedom, Benjamin Franklin, English agent for the Assembly. Finally, however, the Privy Council issued its ruling in 1759. It decided that Moore’s criticism had indeed been a libel (thus continuing the law of seditious libel in full force), but ruled that the Assembly had no power to imprison for breach of privilege or to suspend the writ of habeas corpus. Their long ordeal over, Smith and Moore were finally allowed to return to Philadelphia. Future Assemblies, sad to say, paid little attention to the Crown’s attempt to check their power to imprison the seditious.

The situation was about the same in the other colonies. The Rhode Island legislature and the New Hampshire Assembly each imprisoned a critic in the mid-1750s. If there were fewer cases in the South, it was only because the Southern press was more passive and more under government control. Virginia had no newspapers until 1733, and the government newspaper enjoyed a monopoly in the colony until as late as 1766. The Carolinas and Georgia came to enjoy the benefits of printing and of a nongovernment press even later. Clearly, there was little chance for popular opposition to the government to develop in the Southern colonies.

Freedom of speech was of course subject to the same severe restraints for seditious libel as was expression in the press. The record of persecution of opinion in the seventeenth century included the cases of Roger Williams and Anne Hutchinson, and the Baptists and the Quakers. In 1711, Governor Spotswood of Virginia issued an order threatening loss of life or limb or imprisonment to anyone daring to disseminate “seditious principles” in the province. The Virginia Council persecuted a justice of the peace in 1714 for “many seditious speeches” and a minister six years later for “false and scandalous speeches” against the Crown. In 1758, the Virginia House of Burgesses arrested the Reverend Jacob Rowe, professor of philosophy at the College of William and Mary, for a “scandalous and malicious” criticism of itself at a private party. Rowe was forced to beg the House’s pardon and to pay its costs in the case.

There were few common-law prosecutions for seditious libel, but, as we have seen, this did not mean that freedom of expression in eighteenth-century America was well protected. In fact, its parlous state is indicated by the common-law trial in 1723 of two Pennsylvanians for uttering criticisms of the king. Upon conviction, the defendant who refused to confess
his guilt was sentenced to the pillory, and on two successive days was tied to a cart’s tail and dragged around the city, whipped forty-one times, and then imprisoned until he could pay the costs of prosecuting him. The trial judge, Robert Asheton, instructed the jury herewith: “It is greatly impudent and presumptuous for private persons to meddle with matters of so high a nature; and it will be impossible to preserve the peace unless subjects will quietly submit themselves to those whom Providence has placed over them... what severity can be too harsh for those who thus despise dominions, and speak evil of dignitaries?”
*

*
A licensing requirement for all publications had long been in effect in Massachusetts, and had effectively prevented the publication of “seditious” literature for over twenty years.

*
James Alexander, the legal mastermind of the Zenger defense, along with Andrew Hamilton, had conceded that “to infuse into the minds of the people an ill opinion of a just administration, is a crime that deserves no mercy....” But how could a defendant be expected to
prove
the truth of the injustice of an administration, or a jury to decide? See Leonard W. Levy,
Legacy of Suppression
(Cambridge: Harvard University Press, Belknap Press, 1960), p. 136.

*
Ibid., p.
20.

**
Clyde Duniway, author of the standard history of the freedom of the press in Massachusetts, notes that the Zenger case had no effect on the law or practice of that colony (Clyde A. Duniway,
The Development of Freedom of the Press in Massachusetts
[New York: Longmans Green & Company, 1906], p. 113
n
).

*
Bradford, the first printer to work in Pennsylvania, had been a member of the Keith faction of dissident Quakers, and for printing Keithian tracts he was charged with seditious libel.

*
Levy,
op. cit.,
pp.
58–59
.

*
Ibid.,
pp. 50–51.

In the eighteenth century an established church existed in most of the colonies. However, there was a fair amount of religious liberty—except for Roman Catholics—apart from the existence of the discriminatory establishment. The first years of the century saw a successful royal drive, by liberal use of chicanery, to impose an Anglican establishment on the majority of Dissenters of North Carolina and South Carolina. Maryland had also been recently saddled with an Anglican establishment and Virginia had long had a state church. When Georgia was founded, it too acquired an Anglican establishment. Never was the Anglican church able to take firm root in these colonies, however, especially in dissident North Carolina; ministerial pay was sparse, and control was firmly exercised by the local vestries rather than by the church in Great Britain. Attempts to impose an Anglican establishment on New York and New Jersey were unsuccessful; local vestries in the former colony persisted in appointing Protestant ministers of other denominations, while the New Jersey Assembly, with a heavy non-Anglican majority, refused to pass an establishment law. Massachusetts and New Hampshire suffered a Puritan Congregational establishment while Connecticut’s established church was essentially Puritan Presbyterian. Rhode Island, Pennsylvania, and Delaware, on the other hand, were completely free of an established church.