Conceived in Liberty (121 page)

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.