27. The Communication of Ideas: Postal Service and the Freedom of the Press

One of the most important domestic developments shared by the colonies in the first half of the eighteenth century was the emergence of more regular and effective channels for the sharing and dissemination of ideas. No newspapers had existed in seventeenth-century America, which had virtually no printing of any kind. Through that century Massachusetts was the only colony containing a press, and this was under tight censorship and government control. By the eighteenth century, printers had begun to spread throughout the colonies, and slowly a newspaper press emerged. Books and news still emanated mainly from England, but the colonies were slowly developing a press of their own.

Unfortunately, the press was long hobbled by tight government regulation, expressed first through prior licensing, then through the law of seditious libel and parliamentary privilege. Effective control of the press was also exercised through lucrative contracts for public printing, and by the valuable and ever necessary tie-in of the press with the royal postmasters, who had the power to exclude all papers but their own from the mails. Control through the important postal service was assured at the turn of the eighteenth century by the compulsory monopolization of the post in the hands of the Crown.

Postal service began in the early American colonies as freely competitive private enterprises of varying forms and types. Letters between neighboring villages were sent by special messengers, who were often Indians. For longer journeys, letters were carried by travelers or regular merchants. Letters to or from England were carried by private ship captains, who often hung a bag in the local coffeehouse to receive letters for shipment. The price was generally a penny for a single letter and two pence for a double letter or parcel.

Unfortunately, English precedent held out little hope for the unhampered development of a freely competitive postal service. In 1591 the Crown had issued a proclamation granting itself the monopoly of all foreign mail, and in 1609 the Crown’s proclamation extended its own monopoly to all mail foreign or domestic. The purpose of this postal monopoly was quite simple: to enable governmental officials to read the letters of private citizens in order to discover and suppress “treason” and “sedition.”

Thus, when the Privy Council decided in 1627 to allow merchants to operate an independent foreign post, the king’s principal secretary of state wrote sternly: “Your lordship best knoweth what account we shall be able to give in our places of that which passeth by letters in or out of the land, if every man may convey letters under the course of merchants to whom and what place he pleaseth... how unfit a time this is to give liberty to every man to write and send what he list....” And in 1657 when the Commonwealth Parliament continued the English governmental postal monopoly, the preamble of the act stated a major objective: “to discover and prevent many dangerous and bigoted designs, which have been and are daily contrived against the peace and welfare of this Commonwealth, the intelligence whereof cannot well be communicated, but by letter of script.”

The first government meddling in the postal service in America came as early as 1639 in Massachusetts. At that time the government appointed Richard Fairbanks to be a receiver and deliverer of foreign letters for the price of one penny; no monopoly privilege was granted, and no one was prevented from using other postal intermediaries. The Dutch government in New Netherland went far beyond this when in 1657 it awarded itself a compulsory monopoly of receipt of foreign mail; anyone presuming to board a vessel first to obtain his own mail was fined thirty guilders. Ship captains were fined heavily for carrying letters for anyone except the government postal monopolist.

The first governmental postal service was established by Governor Lovelace in New York in 1673, primarily for carrying intergovernmental mail between New York and Boston, but the Dutch wars rendered this attempt abortive. Massachusetts and Connecticut established government posts in 1673 but only for governmental and not for private letters. In 1677 Massachusetts appointed John Hayward to carry private mail, and in 1680 Hayward was granted the monopoly of the postal business in the colony. Pennsylvania established a public but not monopoly post for private mail in 1683.

The specter of a single colonial monopoly was now beginning to loom on the horizon. Parliament had granted the revenues of the British post office to the Duke of York, and Governor Dongan of New York outlined in 1684 an ambitious scheme for a vast intercolonial system of post houses, a good part of the profit of which would also accrue to the Duke of York. The rates charged were to be three pence a letter, and more for letters carried over one hundred miles. This and similar plans, however, again proved abortive

None of these actions and restrictions had gone beyond one or two colonies. The true monopolization of the entire American postal service came in 1692, when the king granted a “patent” of monopoly privilege over all the American colonies for twenty-one years to Thomas Neal, a court favorite whom he designated as postmaster general. Neal’s agent in operating the post was Andrew Hamilton, who also served as governor of East New Jersey and who persuaded some colonial Assemblies to pass legislation enforcing the monopoly. Thus, a New York law of 1692 prohibited posts from competing with Hamilton’s, and prescribed postage rates ranging from four and one-half pence for nearby mail to twenty-four pence to more distant colonies. The enormous rise in postal rates from the days of free competition make clear how valuable the monopoly privilege was. Most of the colonies followed suit. The particularly free and independent colonies of Rhode Island and North Carolina, on the other hand, passed no enabling legislation at all.

Despite the enormous rise in rates, the postal monopoly suffered net losses, for the service was slow and inefficient—and undoubtedly Hamilton had priced himself out of the consumer market. But, typical of monopolists, his only suggested remedy was to raise the rates still further: from six pence to forty-two pence per letter. The U.S. postmaster general, however, incisively held that the proposed rates were much too high and that a greater revenue would be obtained by lowering rather than raising the rates, for then “the easy and cheap correspondency thus encouraged people to write letters.” He also charged that the colonial governments did not grant enough subsidies to the posts and were insisting on free and special-delivery transmissions of all governmental letters. On Neal’s death the patent of postal privilege fell partly to his creditor, Hamilton, and after Hamilton’s death in 1703, the latter’s creditors carried on the work.

In 1707, however, the Crown refused to consider renewing the grant and instead purchased the privilege back from the owners, for somewhat less than seventeen hundred pounds. The American postal service became from that point on a Crown monopoly. The Crown moved immediately to raise its postal rates. In the Act of 1711 it established a range of some four pence to six pence on local mail to one shilling six pence on letters to distant colonies. The act also appointed a royal postmaster general for the whole empire, with a deputy postmaster general stationed in New York to run the post for the English colonies on the American continent. The colonies proceeded to evade the postal monopoly and its charges more than ever before. Officially the bulk of the colonies accepted the imposition without protest, with the honorable exception of Virginia. Virginia pointed out that the establishment of postal rates by the Crown in effect constituted taxation, and a crucial point in Crown-colony relations was always that England could not impose taxation on the colonies without the consent of their Assemblies. The Virginia House of Burgesses therefore refused to grant any money for the post office and also passed laws crippling its operation. Virginia, however, was induced to join the royal continental monopoly when its former governor Alexander Spotswood became deputy postmaster general in 1732. All in all, the Crown was no more able than Hamilton to make the postal service self-sufficient, and it continued to lose money.

The royal postmasters soon found a peculiarly unfortunate way to use their posts to enrich their personal coffers. The law made no provision for admission of newspapers to the mails, and so the various postmasters adopted the custom of publishing their own newspapers, circulating them in the mails, and prohibiting the post riders from delivering any competing papers. The effect on freedom of the press may well be imagined. Not that the content of the press was free anyway. Indeed, the first newspaper in America, the Boston Public Occurrences, had been issued by Benjamin Harris in 1690 and was suppressed by the governor and Council after the first issue for being critical of the war being prosecuted against France. The excuse was that the paper was unlicensed and therefore illegal.*

The first continuous newspaper in the colonies was the Boston News-Letter, a weekly founded in 1704 by Boston postmaster John Campbell. Campbell’s paper, which kept carefully away from political criticism, was warmly approved and assisted by the Massachusetts authorities, by whom it was licensed despite the ending of press licensing in the mother country in 1695. Campbell asked for and obtained several governmental subventions for his News-Letter; his editorial policies were in keeping with this cozy relationship. When the tyrannical and widely hated ex-governor Joseph Dudley died in 1720, the News-Letter wildly exalted the deceased as “the glory of [his country]; early its darling, always its ornament, and in his age its crown.” It was not until 1758, upon orders of Benjamin Franklin, deputy postmaster general for the colonies, that the repressive system of prohibiting the mails to the postmasters’ competitors was ended, and the post was ordered to accept all newspapers at a uniform rate.

John Campbell’s toadying weekly remained the sole newspaper in the colonies until about 1720, around which year two new papers were opened in Boston. One was the Boston Gazette, begun by Campbell’s successor as postmaster and continued in turn by each succeeding postal officer. Campbell’s old News-Letter, however, continued to be as fawning as the official organ of the royal postmaster. On the other hand, the other new Boston newspaper, the New England Courant, begun by Benjamin Franklin’s older brother James, was a hard-hitting, critical, and unlicensed publication. The Franklins soon lined up the Courant with the lower house against tyrannical intrusions by the governor and the Council. The Courant could remain unlicensed because in the spring of 1721 Governor Shute had urged the legislature to pass a law for censorship through licensing of the press. The Council had approved it but the lower house had quickly rejected the bill

James Franklin directed much of his withering fire against the venerable despot, the Reverend Increase Mather. After Mather’s standard invocation of the judgment of God failed to deter Franklin even a little, the old minister warned the public against the “wicked paper” edited by “children of the old serpent.” Mather wistfully recalled that in the old days “the civil government would have taken an effectual course to suppress such a cursed libel, which, if be not done, I am afraid that some awful judgment will come upon this land, and the wrath of God will arise, and there will be no remedy.” But this time Mather faced a foe who hit back as effectively as he received. It must have been liberating indeed for the Massachusetts citizenry merely to read in the Courant that Mather was a “reverend scribbler” who “quarrels with his neighbors because they do not look and think just as he would have them.”

The Assembly’s rejection of licensing did not mean, however, that the lower house was at all libertarian. Indeed the house’s main reason for rejection was fear of aggrandizing executive power over the press at its own expense. Thus when James Franklin criticized the government for laxity in pursuit of pirates in the summer of 1722, both houses censored Franklin and summarily imprisoned him for a month on the simple order of the Speaker.

The Assembly continued to refuse to pass a press-licensing bill, but in early 1723, the Courant again angered the government. Both houses of the General Court then censored the paper and ordered the prohibition of Franklin’s further publishing of the Courant. Franklin continued to publish the paper without a license and courageously continued to attack the government. The Council tried to arrest him for contempt, but Franklin cleverly managed to evade the legislative order by naming his younger brother Benjamin publisher of the paper, and the grand jury failed to indict.

The Franklin case ended prior censorship and licensing of the press in Massachusetts. This did not mean that the press was now free. As in all the other colonies, it was subject, albeit after publication, to the vague and pernicious common-law doctrine of seditious libel, affecting virtually any criticism of the government, and to the unlimited parliamentary privilege of a legislature to arrest and punish its critics Of these the most pernicious and unchecked was the power of the legislature; as we have seen in the Franklin case, the legislature needed only to vote its punishment. It had no need for a nongovernmental expression of the people such as a grand jury to indict or a petty jury to convict. In the colonies the Assembly as well as the governor-and-Council could and did summon and invoke criminal penalties against anyone who it decided had impeached its behavior—or had traduced its honor or affronted its dignity. These were all seditious scandals against the government and punishable as a breach of parliamentary privilege.

That under these twin engines of oppression the press was still not free in Massachusetts was dramatically illustrated the following year in the case of the Reverend John Checkley, the leading Anglican minister in Massachusetts. In 1719, Checkley had written a tract criticizing Calvinist doctrines. With the governor still exercising prior censorship, Checkley was prevented from publishing his essay. Returning from England in 1724 with a printed stock of his book, Checkley was denounced by the Council for “vile and scandalous passages... reflecting on the [Puritan] ministers of the gospel established in this province, and denying their sacred function and the holy ordinances of religion as administered by them.” The Council ordered the attorney general to try Checkley, who was convicted of seditious libel, fined fifty pounds, and bonded for future good behavior.

There were virtually no intrusions on freedom of the press in Massachusetts in the next two decades, but only because this freedom was not exercised very vigorously. After Franklin discontinued the Courant in 1726, the newspapers settled down to being timid sheets with no editorial viewpoint of their own. The boldest publisher was Thomas Fleet, publisher of the Boston Evening Post. Fleet maintained the general practice of giving equal hearing to both sides of every controversial question, but more vigorously and trenchantly than did his competitiors. For daring to publish unorthodox opinions, however, the ministers denounced Fleet and urged the magistrates to suppress the Evening Post as a “dangerous engine, a sink of sedition, error, and heresy.” In the spring of 1742, Fleet published an item critical of Britain’s conduct of the war with Spain, and the Council immediately ordered prosecution for libel against the Crown. Fleet was able to avoid prosecution, but only by proving the truth of the item in question. Thus newspapers were alerted to the narrow bounds within which they could engage in political comment.

In the fall of 1754 the Massachusetts lower house demonstrated its power to punish criticism as a supposed breach of its privileges. A pamphlet was anonymously written and published satirizng debates in the house on an unpopular tax bill. The lower house angrily denounced the humorous piece as a “false, scandalous libel,” ordered the hangman to burn the pamphlet publicly, and to drag before it Daniel Fowle, suspected of doing the printing. Fowle was induced to confess his deed and to implicate his brother as well as Royal Tyler, a prominent merchant, as the author. Fowle did not, however, beg mercy from the lower house and he was summarily thrown into prison incommunicado on the mere charge of suspicion and prevented from writing to his wife. After five days of such imprisonment under foul conditions, the lower house bitterly reprimanded Fowle for publishing seditious libel and sent him back to his cell until he could pay the costs of the case. Tyler, in the meanwhile, had demanded a lawyer and, when this was denied him by the house, refused to incriminate himself by answering any questions. He was thrown into jail without bail but was suddenly released after two days along with Fowle’s apprentice. After six days in prison Fowle himself was released to visit his sick wife; the lower house finally bowed to an upsurge of public sympathy for the printer and did not resume its harassments.

Daniel Fowle, outraged at the injustice of the whole affair, wrote a pamphlet about the case, A Total Eclipse of Liberty (1755), and then bravely proceeded to sue the Speaker of the house, the house’s messenger, and its jail-keeper for illegal imprisonment. But the inferior and superior courts ruled against the unfortunate Fowle. Government officials have rarely been liable for any deed done in their official capacity, these official duties apparently being enough to invoke a double standard of justice and criminality—one for ordinary citizens and the other for government officials.

The best-known and most highly touted case concerning freedom of the press in the colonies was the trial of John Peter Zenger in New York. Historians have been prone to wild exaggeration of the importance and significance of the Zenger case. A typical example: the case was a “monument to freedom” and “established the freedom of the press in North America.” Actually it did nothing of the sort.

Before the Zenger case, there was little freedom to speak or publish criticism of the government. In the early eighteenth century the main enemy of freedom of criticism was the Assembly. Between 1706 and 1720 the New York Assembly prosecuted four such cases, one of which involved the mass arrest of nine people and another of seventeen grand jurors for “seditious” remarks about the New York Assembly. As for the press, the first newspaper in New York was the New York Gazette, founded in 1725. The only paper in the colony, the Gazette was the licensed and pampered organ of the government, its editor William Bradford also serving as the official public printer.

The arrival in 1732 of William Cosby as governor of New York soon set off a bitter factional dispute in the politics of the province. The historical zealots for Zenger have grandiloquently referred to the opposition to Cosby as the “popular party”; in reality the dispute was strictly between two factions of the landed oligarchy and the trouble was raised over extremely petty issues. The opposition was headed by such oligarchs as Lewis Morris, the Livingstons, and the Stuyvesants, while the Cosby faction was led by DeLancey and Philipse. There were here no great liberal issues or principled liberal opposition. To advance their cause, the Morris faction established the New York Weekly Journal in 1733, with the learned lawyer James Alexander as its editor and John Peter Zenger, of Palatine-German descent, as printer.

While the Morris faction was not rooted in vital issues, the slashing, bitter nature of the Weekly Journal’s attacks on the administration was in itself a bracing exercise of the freedom of the press in an America that badly needed such an example. Furthermore, the corollary exposés of Cosby’s tyrannies and misdeeds had a liberal effect even though not so intended by the authors. The articles were anonymous and written by various members of the Morris faction.

Cosby soon decided to strike back by moving against the vulnerable Zenger. Twice he tried to obtain a grand-jury indictment for seditious libel and twice the jury refused. He then ordered the public burning of the Journal and, on November 17, 1734, the governor and Council ordered the summary arrest of Zenger on the charge of seditious libel. Avoiding the need for a grand-jury indictment, the government placed the bail at the enormous sum of 400 pounds, forcing Zenger to remain in prison for nine months before coming to trial. Futhermore, for protesting Cosby’s packing of the court with the two leading members of his faction—DeLancey and Philipse—the selfsame court summarily disbarred his lawyers, James Alexander and William Smith. The Morris faction now secured the venerable Pennsylvania lawyer Andrew Hamilton, a stalwart of the proprietary party and patron of Benjamin Franklin, to argue Zenger’s case.

The struggle against Cosby was not at root a popular or liberal affair. But in the Zenger case, it became transformed, for the already unpopular Cosby was now generally hated, and the popular sympathies were all with the defendant. On August 4, 1735, Andrew Hamilton won acquittal of Zenger by the trial jury. Two things were significant about this decision. First, Hamilton was able to persuade the jury to broaden its jurisdiction to cover the law as well as the facts. The customary practice, insisted on by the court, had been to limit the jury severely to deciding whether or not an item had been published by the defendant. It was then supposed to be the judge’s role to decide whether the item was indeed libelous. Now Hamilton persuaded the jury to broaden its powers so as to decide the guilt or innocence of the defendant on the charge. Secondly, Hamilton defended the Journal’s articles on the ground that they were true, and thus was able to establish a precedent for truth as a valid defense against seditious libel. This contrasted to the earlier despotic practice that “the greater the truth the greater the libel,” since then government was put into greater public disrepute.

These were legal advances to be sure, but they hardly justify the paeans of praise that have been delivered for the Zenger decision. The important point is that the root evil—the common law of seditious libel—remained virtually intact. The jury is a protection against government judges, to be sure. But juries too can be despotic and rule against the liberty of the person. And truth as a defense is a very shaky reed, for in political criticism there is no simple and precise method of demanding “truth.” If X prints the charge that Y is a tyrant, is this truth? And is a jury qualified to determine its truth? Should it have the power to do so?* For here is a wide path indeed for a despotically inclined jury, and juries have proved to be guardians of freedom only if the particular defendant happens to have been supported by public opinion (as in the Zenger case). Moreover, allowing each jury to decide the law in each particular case prevents the formation of a uniform law code so essential to the orderly administration of justice. Each jury would then be deciding the law of the case on its arbitrary whim, and no citizen could know in advance whether his utterances or writings would be libelous or not.

Furthermore, the Zenger case did not establish either of its two major contentions, narrow as they were, in English or in American law. English law did not accept the power of juries to judge guilt until 1792, or truth as a defense until 1843. In America, the chief justice of New York was still maintaining that truth did not constitute a defense against seditious libel as late as 1804.

Finally, perhaps the most important reason for belittling the importance generally given to the Zenger case is the fact that royal judges were not the major threats to freedom of the press in the colonial era. The main threat was the use of parliamentary privilege by which the Assembly or the governor-and-Council “tried” and punished the seditious libeler without benefit of jury. Trials for seditious libel at court were few and far between in the colonial period. It was in fact the very rarity of the phenomenon that gave the Zenger case its fame. Far more important were the actions of the legislature. As Dean Levy writes:

The traditionally maligned judges were... virtually angels of self-restraint when compared with the intolerance of community opinion,... the tyranny of governors... acting in a quasi-judicial capacity with their councils... [and especially] the popularly elected Assembly. That the law bore down so harshly on verbal crimes in colonial America was the result of inquisitorial propensities of the nonjudicial branches which vied with each other in ferreting out slights on the government. The law of seditious libel... was enforced in America chiefly by the provincial legislatures exercising their power of punishing alleged breaches of parliamentary privilege.... The [common-law courts] gathered a very few seditious scalps and lost as many to acquittals; but the Assemblies, like the House of Commons which they emulated, needing no grand jury to indict and no petty jury to convict, racked up a far larger score.*

The Zenger case thus made virtually no impact on the legislative oppression of the press even in New York, let alone in the other colonies.**

Furthermore, from 1745 on, the Assembly consistently prohibited the printing of the votes or debates of the legislature without prior authorization by the Speaker. Thus, even prior censorship on publication continued throughout the colonial period in the vital field of information on the proceedings of the legislature. In 1753, the printer Hugh Gaine published the king’s instructions to the new governor of New York as well as the latter’s speech to the Assembly. Immediately the Assembly summoned Gaine and demanded to know how he dared print any part of the proceedings without license or prior approval. Humbly abasing himself, the startled Gaine was released by the Assembly but only after it forced him to pay the costs of the case.

A more serious case occurred in 1756, when James Parker published an article on the depressed conditions of the country in his New York Gazette. The Assembly took this to be a grave reflection on itself, and summarily voted Parker and his assistant to be guilty of high misdemeanor and contempt of authority. Seized and hauled into the Assembly, the frightened Parker and his aide abjectly confessed their guilt and begged pardon, and showed their good faith by informing on the Reverend Hezekiah Watkins of Newburgh as author of the offending article. Despite their abasement, the editors were put into jail for a week by the Assembly, which also moved, of course, for the immediate arrest of the unfortunate minister. The Reverend Mr. Watkins proved to be no more heroic than his editors, begging forgiveness for his misplaced zeal. He too was jailed by the Assembly. Watkins was discharged the next day but only after being forced to pay the costs of his case.

Two years later, Samuel Townsend, justice of the peace in Queens County, sent a petition to the Speaker of the lower house asking for relief for some refugees stationed on Long Island. The Speaker denounced Townsend’s letter as “insolent” and the Assembly then promptly ordered his appearance. When Townsend bravely failed to heed the summons, he was cited for contempt, seized, and hauled before the Assembly. Townsend surprisingly failed to show the usual abject humility. The enraged Assembly voted him clearly guilty of a high misdemeanor and “most daring insult” and threw him into prison. In this atmosphere, Townsend had ample opportunity to reflect on the error of his ways, and soon sent the house a profound apology and a promise to avoid all such misconduct in the future. The Assembly then graciously released Judge Townsend.

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. 113n).

*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.