WEBVTT NOTE 27. The Communication of Ideas: Postal Service and the Freedom of the Press 1 00:00:00.000 --> 00:00:06.240 Volume 2, Chapter 27 The Communication of Ideas, Postal Service 2 00:00:06.240 --> 00:00:12.560 and the Freedom of the Press One of the most important domestic developments 3 00:00:12.560 --> 00:00:18.660 shared by the colonies in the first half of the 18th century was the emergence of more 4 00:00:18.660 --> 00:00:25.120 regular and effective channels for the sharing and dissemination of ideas. No newspapers 5 00:00:25.120 --> 00:00:31.760 Printers had existed in 17th century America, which had virtually no printing of any kind. 6 00:00:31.760 --> 00:00:37.600 Through that century, Massachusetts was the only colony containing a press, and this was 7 00:00:37.600 --> 00:00:44.480 under tight censorship and government control. By the 18th century, printers had begun to 8 00:00:44.480 --> 00:00:51.560 spread throughout the colonies, and slowly a newspaper press emerged. Books and news 9 00:00:51.560 --> 00:00:57.620 still emanated mainly from England, but the colonies were slowly developing a press of 10 00:00:57.620 --> 00:01:04.620 their own. Unfortunately, the press was long hobbled by tight government regulation, expressed 11 00:01:05.840 --> 00:01:12.360 first through prior licensing, then through the law of seditious libel and parliamentary 12 00:01:12.360 --> 00:01:18.880 privilege. Effective control of the press was also exercised through lucrative contracts 13 00:01:18.880 --> 00:01:24.400 Postal Service for Public Printing and by the valuable and ever-necessary tie-in of 14 00:01:24.400 --> 00:01:30.720 the press with the Royal Postmasters, who had the power to exclude all papers but their 15 00:01:30.720 --> 00:01:33.240 own from the mails. 16 00:01:33.240 --> 00:01:38.720 Control through the important Postal Service was assured at the turn of the 18th century 17 00:01:38.720 --> 00:01:45.640 by the compulsory monopolization of the Post in the hands of the Crown. 18 00:01:45.640 --> 00:01:51.360 Special service began in the early American colonies as freely competitive private enterprises 19 00:01:51.360 --> 00:01:57.480 of varying forms and types. Letters between neighboring villages were sent by special 20 00:01:57.480 --> 00:02:04.160 messengers who were often Indians. For longer journeys, letters were carried by travelers 21 00:02:04.160 --> 00:02:10.960 or regular merchants. Letters to or from England were carried by private ship captains who 22 00:02:10.960 --> 00:02:16.840 You often hung a bag in the local coffee house to receive letters for shipment. The price 23 00:02:16.840 --> 00:02:23.120 was generally a penny for a single letter and two pence for a double letter or parcel. 24 00:02:23.120 --> 00:02:28.880 Unfortunately, English precedent held out little hope for the unhampered development 25 00:02:28.880 --> 00:02:36.380 of a freely competitive postal service. In 1591, the Crown had issued a proclamation 26 00:02:36.380 --> 00:02:44.300 granting itself the monopoly of all foreign male. And in 1609, the Crown's proclamation 27 00:02:44.300 --> 00:02:52.040 extended its own monopoly to all male, foreign or domestic. The purpose of this postal monopoly 28 00:02:52.040 --> 00:02:59.160 was quite simple, to enable governmental officials to read the letters of private citizens in 29 00:02:59.160 --> 00:03:04.000 in order to discover and suppress treason and sedition. 30 00:03:04.000 --> 00:03:11.840 Thus, when the Privy Council decided in 1627 to allow merchants to operate an independent 31 00:03:11.840 --> 00:03:17.920 foreign post, the King's Principal Secretary of State wrote sternly, 32 00:03:17.920 --> 00:03:24.400 Your Lordship best knoweth what account we shall be able to give in our places of that 33 00:03:24.400 --> 00:03:30.840 which passeth by letters in or out of the land, if every man may convey letters under 34 00:03:30.840 --> 00:03:36.520 the course of merchants, to whom and what place he pleaseth. How unfit a time this is 35 00:03:36.520 --> 00:03:42.120 to give liberty to every man to write and send what he lists. 36 00:03:42.120 --> 00:03:47.640 And in 1657, when the Commonwealth Parliament continued the English governmental postal 37 00:03:47.640 --> 00:03:55.000 and Monopoly, the preamble of the act stated a major objective, to discover and prevent 38 00:03:55.000 --> 00:04:01.680 many dangerous and bigoted designs which have been and are daily contrived against the peace 39 00:04:01.680 --> 00:04:08.800 and welfare of this commonwealth, the intelligence whereof cannot well be communicated but by 40 00:04:08.800 --> 00:04:11.840 letter of script. 41 00:04:11.840 --> 00:04:18.000 The first government meddling in the Postal Service in America came as early as 1639 in 42 00:04:18.000 --> 00:04:24.520 Massachusetts. At that time the government appointed Richard Fairbanks to be a receiver 43 00:04:24.520 --> 00:04:31.400 and deliverer of foreign letters for the price of one penny. No monopoly privilege was granted 44 00:04:31.400 --> 00:04:37.940 and no one was prevented from using other postal intermediaries. The Dutch government 45 00:04:37.940 --> 00:04:45.860 in New Netherland went far beyond this when in 1657 it awarded itself a compulsory monopoly 46 00:04:45.860 --> 00:04:51.200 of receipt of foreign mail. Anyone presuming to board a vessel first to obtain his own 47 00:04:51.200 --> 00:04:57.980 mail was fined thirty guilders. Ship captains were fined heavily for carrying letters for 48 00:04:57.980 --> 00:05:05.200 anyone except the government postal monopolist. The first governmental postal service was 49 00:05:05.200 --> 00:05:12.200 was established by Governor Lovelace in New York in 1673, primarily for carrying intergovernmental 50 00:05:12.640 --> 00:05:19.640 mail between New York and Boston. But the Dutch Wars rendered this attempt abortive. 51 00:05:19.640 --> 00:05:26.440 Massachusetts and Connecticut established government post in 1673, but only for governmental 52 00:05:26.440 --> 00:05:33.440 and not for private letters. In 1677, Massachusetts appointed John Hayward to carry private mail, 53 00:05:33.440 --> 00:05:41.560 Mail, and in 1680, Hayward was granted the monopoly of the postal business in the colony. 54 00:05:41.560 --> 00:05:49.360 Pennsylvania established a public but not monopoly post for private mail in 1683. 55 00:05:49.360 --> 00:05:55.800 The specter of a single colonial monopoly was now beginning to loom on the horizon. 56 00:05:55.800 --> 00:06:00.920 Parliament had granted the revenues of the British Post Office to the Duke of York and 57 00:06:00.920 --> 00:06:08.840 Governor Dongan of New York outlined in 1684 an ambitious scheme for a vast inter-colonial 58 00:06:08.840 --> 00:06:14.080 system of post houses, a good part of the profit of which would also accrue to the Duke 59 00:06:14.080 --> 00:06:20.360 of York. The rates charged were to be three pence a letter, and more for letters carried 60 00:06:20.360 --> 00:06:27.680 over 100 miles. This and similar plans, however, again proved abortive. 61 00:06:27.680 --> 00:06:32.960 None of these actions and restrictions had gone beyond one or two colonies. The true 62 00:06:32.960 --> 00:06:41.400 monopolization of the entire American postal service came in 1692, when the King granted 63 00:06:41.400 --> 00:06:49.240 a patent of monopoly privilege over all the American colonies for 21 years to Thomas Neel, 64 00:06:49.240 --> 00:06:55.640 a court favorite whom he designated as postmaster general. Neel's agent in operating the post 65 00:06:55.640 --> 00:07:01.960 was Andrew Hamilton, who also served as governor of East New Jersey and who persuaded some 66 00:07:01.960 --> 00:07:06.920 colonial assemblies to pass legislation enforcing the monopoly. 67 00:07:06.920 --> 00:07:15.920 Thus, a New York law of 1692 prohibited post from competing with Hamilton's and prescribed 68 00:07:15.920 --> 00:07:22.660 postage rates ranging from four and one-half pence for nearby mail to 24 pence to more 69 00:07:22.660 --> 00:07:24.660 distant colonies. 70 00:07:24.660 --> 00:07:30.920 The enormous rise in postal rates from the days of free competition make clear how valuable 71 00:07:30.920 --> 00:07:38.120 the monopoly privilege was. Most of the colonies followed suit. The particularly free and independent 72 00:07:38.120 --> 00:07:43.940 colonies of Rhode Island and North Carolina, on the other hand, passed no enabling legislation 73 00:07:43.940 --> 00:07:51.940 at all. Despite the enormous rise in rates, the postal monopoly suffered net losses, for 74 00:07:51.940 --> 00:07:58.140 For the service was slow and inefficient, and undoubtedly Hamilton had priced himself 75 00:07:58.140 --> 00:08:04.960 out of the consumer market. But typical of monopolists, his only suggested remedy was 76 00:08:04.960 --> 00:08:12.760 to raise the rate still further, from 6 pence to 42 pence per letter. The U.S. Postmaster 77 00:08:12.760 --> 00:08:18.620 General, however, incisively held that the proposed rates were much too high and that 78 00:08:18.620 --> 00:08:29.620 He said 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. 79 00:08:29.620 --> 00:08:41.620 He also charged that the colonial governments did not grant enough subsidies to the post and were insisting on free and special delivery transmissions of all governmental letters. 80 00:08:41.620 --> 00:08:47.820 On Neal's death, the patent of postal privilege fell partly to his creditor, Hamilton, and 81 00:08:47.820 --> 00:08:54.220 after Hamilton's death in 1703, the latter's creditors carried on the work. 82 00:08:54.220 --> 00:09:00.900 In 1707, however, the Crown refused to consider renewing the grant and instead purchased the 83 00:09:00.900 --> 00:09:06.460 privilege back from the owners for somewhat less than 1,700 pounds. 84 00:09:06.460 --> 00:09:12.500 The American Postal Service became, from that point on, a crown monopoly. 85 00:09:12.500 --> 00:09:16.420 The crown moved immediately to raise its postal rates. 86 00:09:16.420 --> 00:09:23.020 In the Act of 1711, it established a range of some four pence to six pence on local mail 87 00:09:23.020 --> 00:09:27.300 to one shilling six pence on letters to distant colonies. 88 00:09:27.300 --> 00:09:32.340 The Act also appointed a royal postmaster general for the whole empire, with a deputy 89 00:09:32.340 --> 00:09:37.420 Postmaster General stationed in New York to run the post for the English colonies on the 90 00:09:37.420 --> 00:09:43.780 American continent. The colonies proceeded to evade the postal monopoly and its charges 91 00:09:43.780 --> 00:09:49.660 more than ever before. Officially, the bulk of the colonies accepted the imposition without 92 00:09:49.660 --> 00:09:55.940 protest, with the honorable exception of Virginia. Virginia pointed out that the establishment 93 00:09:55.940 --> 00:10:02.940 of Postal Rates by the Crown in effect constituted taxation, and a crucial point in Crown-Colony 94 00:10:03.540 --> 00:10:10.540 relations was always that England could not impose taxation on the colonies without the 95 00:10:10.580 --> 00:10:16.340 consent of their assemblies. The Virginia House of Burgesses therefore refused to grant 96 00:10:16.340 --> 00:10:23.340 any money for the post office and also passed laws crippling its operation. Virginia, however, 97 00:10:23.340 --> 00:10:35.340 The Crown, however, was induced to join the Royal Continental Monopoly when its former governor, Alexander Spotswood, became Deputy Postmaster General in 1732. 98 00:10:35.340 --> 00:10:45.340 All in all, the Crown was no more able than Hamilton to make the Postal Service self-sufficient, and it continued to lose money. 99 00:10:45.340 --> 00:10:54.340 The Royal Postmasters soon found a peculiarly unfortunate way to use their posts to enrich their personal coffers. 100 00:10:54.340 --> 00:11:00.340 The law made no provision for admission of newspapers to the mails. 101 00:11:00.340 --> 00:11:07.340 And so the various postmasters adopted the custom of publishing their own newspapers, 102 00:11:07.340 --> 00:11:14.340 circulating them in the mails and prohibiting the post writers from delivering any competing papers. 103 00:11:14.340 --> 00:11:18.340 The effect on freedom of the press may well be imagined. 104 00:11:18.340 --> 00:11:22.340 Not that the content of the press was free anyway. 105 00:11:22.340 --> 00:11:27.340 Indeed, the first newspaper in America, The Boston Public Occurrences, 106 00:11:27.340 --> 00:11:33.340 had been issued by Benjamin Harris in 1690 and was suppressed by the governor and council 107 00:11:33.340 --> 00:11:39.340 after the first issue for being critical of the war being prosecuted against France. 108 00:11:39.340 --> 00:11:47.340 The excuse was that the paper was unlicensed and therefore illegal. A licensing requirement 109 00:11:47.340 --> 00:11:53.820 for all publications had long been in effect in Massachusetts and had effectively prevented 110 00:11:53.820 --> 00:11:59.860 the publication of seditious literature for over 20 years. 111 00:11:59.860 --> 00:12:06.740 The first continuous newspaper in the colonies was the Boston News Letter, a weekly founded 112 00:12:06.740 --> 00:12:14.060 in 1704 by Boston Postmaster John Campbell. Campbell's paper, which kept carefully away 113 00:12:14.060 --> 00:12:20.860 from political criticism, was warmly approved and assisted by the Massachusetts authorities, 114 00:12:20.860 --> 00:12:26.500 by whom it was licensed despite the ending of press licensing in the mother country in 115 00:12:26.500 --> 00:12:35.240 1695. Campbell asked for and obtained several governmental subventions for his newsletter. 116 00:12:35.240 --> 00:12:39.800 These editorial policies were in keeping with this cozy relationship. 117 00:12:39.800 --> 00:12:47.640 When the tyrannical and widely hated ex-Governor Joseph Dudley died in 1720, the newsletter 118 00:12:47.640 --> 00:12:55.240 wildly exalted the deceased as the glory of his country, early its darling, always its 119 00:12:55.240 --> 00:12:59.160 ornament and in his age its crown. 120 00:12:59.160 --> 00:13:06.080 It was not until 1758, upon orders of Benjamin Franklin, deputy postmaster general for the 121 00:13:06.080 --> 00:13:12.720 colonies, that the repressive system of prohibiting the mails to the postmaster's competitors 122 00:13:12.720 --> 00:13:19.320 was ended, and the post was ordered to accept all newspapers at a uniform rate. 123 00:13:19.320 --> 00:13:25.640 John Campbell's toting weekly remained the sole newspaper in the colonies until about 124 00:13:25.640 --> 00:13:34.840 1720, around which year two new papers were opened in Boston. One was the Boston Gazette, 125 00:13:34.840 --> 00:13:41.000 begun by Campbell's successor as postmaster and continued in turn by each succeeding postal 126 00:13:41.000 --> 00:13:47.520 officer. Campbell's old newsletter, however, continued to be as fawning as the official 127 00:13:47.520 --> 00:13:53.800 organ of the royal postmaster. On the other hand, the other new Boston newspaper, the 128 00:13:53.800 --> 00:14:01.120 The New England Courant, begun by Benjamin Franklin's older brother James, was a hard-hitting, 129 00:14:01.120 --> 00:14:05.400 critical and unlicensed publication. 130 00:14:05.400 --> 00:14:10.900 The Franklins soon lined up the Courant with the lower house against tyrannical intrusions 131 00:14:10.900 --> 00:14:13.200 by the governor and the council. 132 00:14:13.200 --> 00:14:19.420 The Courant could remain unlicensed because in the spring of 1721, Governor Shute had 133 00:14:19.420 --> 00:14:26.240 had urged the legislature to pass a law for censorship through licensing of the press. 134 00:14:26.240 --> 00:14:31.820 The council had approved it, but the lower house had quickly rejected the bill. James 135 00:14:31.820 --> 00:14:37.740 Franklin directed much of his withering fire against the venerable despot, the reverend 136 00:14:37.740 --> 00:14:45.220 Inquis Mathur. After Mathur's standard invocation of the judgment of God failed to deter Franklin 137 00:14:45.220 --> 00:15:00.740 Mathur wistfully recalled that in the old days the civil government would have taken 138 00:15:00.740 --> 00:15:07.180 an effectual course to suppress such a cursed libel, which if be not done, I am afraid that 139 00:15:07.180 --> 00:15:13.020 some awful judgment will come upon this land and the wrath of God will arise and there will 140 00:15:13.020 --> 00:15:20.020 will be no remedy. But this time Mather faced a foe who hit back as effectively as he received. 141 00:15:20.680 --> 00:15:25.860 It must have been liberating indeed for the Massachusetts citizenry merely to read in 142 00:15:25.860 --> 00:15:32.260 the current that Mather was a reverend scribbler who quarrels with his neighbors because they 143 00:15:32.260 --> 00:15:38.380 do not look and think just as he would have them. The assembly's rejection of licensing 144 00:15:38.380 --> 00:15:44.060 Dealing did not mean, however, that the lower house was at all libertarian. Indeed, the 145 00:15:44.060 --> 00:15:51.060 house's main reason for rejection was fear of aggrandizing executive power over the press 146 00:15:51.340 --> 00:15:57.900 at its own expense. Thus, when James Franklin criticized the government for laxity in pursuit 147 00:15:57.900 --> 00:16:04.900 of pirates in the summer of 1722, both houses censored Franklin and summarily imprisoned 148 00:16:04.900 --> 00:16:16.020 The assembly continued to refuse to pass a press licensing bill, but in early 1723, the 149 00:16:16.020 --> 00:16:19.320 Courant again angered the government. 150 00:16:19.320 --> 00:16:24.900 Both Houses of the General Court then censored the paper and ordered the prohibition of Franklin's 151 00:16:24.900 --> 00:16:28.340 further publishing of the Courant. 152 00:16:28.340 --> 00:16:34.060 Franklin continued to publish the paper without a license and courageously continued to attack 153 00:16:34.060 --> 00:16:40.940 The Council tried to arrest him for contempt, but Franklin cleverly managed to evade the 154 00:16:40.940 --> 00:16:47.820 legislative order by naming his younger brother Benjamin publisher of the paper, and the grand 155 00:16:47.820 --> 00:16:50.380 jury failed to indict. 156 00:16:50.380 --> 00:16:56.500 The Franklin case ended prior censorship and licensing of the press in Massachusetts. 157 00:16:56.500 --> 00:16:59.860 This did not mean that the press was now free. 158 00:16:59.860 --> 00:17:06.180 As in all the other colonies, it was subject, albeit after publication, to the vague and 159 00:17:06.180 --> 00:17:12.980 pernicious common law doctrine of seditious libel, affecting virtually any criticism of 160 00:17:12.980 --> 00:17:20.080 the government, and to the unlimited parliamentary privilege of a legislature to arrest and punish 161 00:17:20.080 --> 00:17:22.080 its critics. 162 00:17:22.080 --> 00:17:26.640 Of these, the most pernicious and unchecked was the power of the legislature. 163 00:17:26.640 --> 00:17:32.780 As we have seen in the Franklin case, the legislature needed only to vote its punishment. 164 00:17:32.780 --> 00:17:38.960 It had no need for a non-governmental expression of the people, such as a grand jury to indict 165 00:17:38.960 --> 00:17:41.080 or a petty jury to convict. 166 00:17:41.080 --> 00:17:47.260 In the colonies, the assembly as well as the governor and council could and did summon 167 00:17:47.260 --> 00:17:54.080 and invoke criminal penalties against anyone who had decided had impeached its behavior 168 00:17:54.080 --> 00:18:00.120 or had traduced its honor or affronted its dignity, these were all seditious scandals 169 00:18:00.120 --> 00:18:06.000 against the government and punishable as a breach of parliamentary privilege. That under 170 00:18:06.000 --> 00:18:12.600 these twin engines of oppression the press was still not free in Massachusetts was dramatically 171 00:18:12.600 --> 00:18:18.520 illustrated the following year in the case of the Reverend John Checkley, the leading 172 00:18:18.520 --> 00:18:26.120 Anglican Minister in Massachusetts In 1719, Checkley had written a tract criticizing 173 00:18:26.120 --> 00:18:32.400 Calvinist doctrines. With the governor still exercising prior censorship, Checkley was 174 00:18:32.400 --> 00:18:39.680 prevented from publishing his essay. Returning from England in 1724 with a printed stock 175 00:18:39.680 --> 00:18:46.740 of his book, Checkley was denounced by the council for vile and scandalous passages reflecting 176 00:18:46.740 --> 00:18:52.740 on the Puritan ministers of the Gospel established in this province, and denying their sacred 177 00:18:52.740 --> 00:18:59.240 function and the holy ordinances of religion as administered by them. The Council ordered 178 00:18:59.240 --> 00:19:05.500 the Attorney General to try Checkley, who was convicted of seditious libel, fined fifty 179 00:19:05.500 --> 00:19:12.500 pounds and bonded for future good behavior. There were virtually no intrusions on freedom 180 00:19:12.500 --> 00:19:17.820 of the Press in Massachusetts in the next two decades, but only because this freedom 181 00:19:17.820 --> 00:19:24.820 was not exercised very vigorously. After Franklin discontinued the Courant in 1726, the newspapers 182 00:19:26.140 --> 00:19:32.980 settled down to being timid sheets, with no editorial viewpoint of their own. The boldest 183 00:19:32.980 --> 00:19:39.700 publisher was Thomas Fleet, publisher of the Boston Evening Post. Fleet maintained the 184 00:19:39.700 --> 00:19:45.900 The General Practice of giving equal hearing to both sides of every controversial question, 185 00:19:45.900 --> 00:19:51.580 but more vigorously and trenchantly than did his competitors. For daring to publish 186 00:19:51.580 --> 00:19:57.540 unorthodox opinions, however, the ministers denounced Fleet and urged the magistrates 187 00:19:57.540 --> 00:20:06.180 to suppress the evening posed as a dangerous engine, a sink of sedition, error and heresy. 188 00:20:06.180 --> 00:20:11.340 In the spring of 1742, Fleet published an item critical of Britain's conduct of the 189 00:20:11.340 --> 00:20:16.500 war with Spain, and the Council immediately ordered prosecution for liable against the 190 00:20:16.500 --> 00:20:23.080 Crown. Fleet was able to avoid prosecution, but only by proving the truth of the item 191 00:20:23.080 --> 00:20:29.300 in question. Thus, newspapers were alerted to the narrow bounds within which they could 192 00:20:29.300 --> 00:20:41.060 In the fall of 1754, the Massachusetts lower house demonstrated its power to punish criticism 193 00:20:41.060 --> 00:20:47.100 as a supposed breach of its privileges. A pamphlet was anonymously written and published 194 00:20:47.100 --> 00:20:54.100 satirizing debates in the house on an unpopular tax bill. The lower house angrily denounced 195 00:20:54.100 --> 00:21:00.900 the humorous piece as a false, scandalous libel, ordered the hangman to burn the pamphlet 196 00:21:00.900 --> 00:21:07.900 publicly and to drag before it Daniel Fowle, suspected of doing the printing. Fowle was 197 00:21:08.420 --> 00:21:14.700 induced to confess his deed and to implicate his brother as well as Royal Tyler, a prominent 198 00:21:14.700 --> 00:21:21.340 merchant as the author. Fowle did not, however, beg mercy from the lower house and he was 199 00:21:21.340 --> 00:21:26.200 The lower house was summarily thrown into prison, incommunicado, on the mere charge 200 00:21:26.200 --> 00:21:33.060 of suspicion and prevented from writing to his wife. After five days of such imprisonment 201 00:21:33.060 --> 00:21:39.740 under foul conditions, the lower house bitterly reprimanded Foul for publishing seditious 202 00:21:39.740 --> 00:21:45.940 libel and sent him back to his cell until he could pay the cost of the case. Tyler in 203 00:21:45.940 --> 00:21:51.820 In the meanwhile had demanded a lawyer, and when this was denied him by the house, refused 204 00:21:51.820 --> 00:21:55.580 to incriminate himself by answering any questions. 205 00:21:55.580 --> 00:22:00.780 He was thrown into jail without bail, but was suddenly released after two days, along 206 00:22:00.780 --> 00:22:03.100 with Fowle's apprentice. 207 00:22:03.100 --> 00:22:08.300 After six days in prison, Fowle himself was released to visit his sick wife. 208 00:22:08.300 --> 00:22:13.960 The lower house finally bowed to an upsurge of public sympathy for the printer and did 209 00:22:13.960 --> 00:22:23.240 Daniel Fowle, outraged at the injustice of the whole affair, wrote a pamphlet about the 210 00:22:23.240 --> 00:22:31.360 case, A Total Eclipse of Liberty, 1755, and then bravely proceeded to sue the Speaker 211 00:22:31.360 --> 00:22:38.480 of the House, the House's messenger and its jailkeeper for illegal imprisonment. But the 212 00:22:38.480 --> 00:22:44.800 The inferior and superior courts ruled against the unfortunate fowl. Government officials 213 00:22:44.800 --> 00:22:50.860 have rarely been liable for any deed done in their official capacity. These official 214 00:22:50.860 --> 00:22:56.680 duties apparently being enough to invoke a double standard of justice and criminality, 215 00:22:56.680 --> 00:23:02.360 one for ordinary citizens and the other for government officials. 216 00:23:02.360 --> 00:23:07.680 The best known and most highly touted case concerning freedom of the press in the colonies 217 00:23:07.680 --> 00:23:11.320 was the trial of John Peter Zenger in New York. 218 00:23:11.320 --> 00:23:15.440 Historians have been prone to wild exaggeration of the importance and 219 00:23:15.440 --> 00:23:18.000 significance of the Zenger case. 220 00:23:18.000 --> 00:23:19.760 A typical example, 221 00:23:19.760 --> 00:23:23.040 the case was a monument to freedom 222 00:23:23.040 --> 00:23:26.800 and established the freedom of the press in North America. 223 00:23:26.800 --> 00:23:29.600 Actually, it did nothing of the sort. 224 00:23:29.600 --> 00:23:33.920 Before the Zenger case, there was little freedom to speak or publish criticism of 225 00:23:33.920 --> 00:23:35.280 the government. 226 00:23:35.280 --> 00:23:41.440 In the early eighteenth century, the main enemy of freedom of criticism was the Assembly. 227 00:23:41.440 --> 00:23:48.700 Between 1706 and 1720, the New York Assembly prosecuted four such cases, one of which involved 228 00:23:48.700 --> 00:23:54.640 the mass arrest of nine people and another of seventeen grand jurors, for seditious 229 00:23:54.640 --> 00:24:00.080 remarks about the New York Assembly. As for the press, the first newspaper in New York 230 00:24:00.080 --> 00:24:06.680 New York was the New York Gazette founded in 1725, the only paper in the colony. The 231 00:24:06.680 --> 00:24:12.560 Gazette was the licensed and pampered organ of the government, its editor William Bradford 232 00:24:12.560 --> 00:24:20.560 also serving as the official public printer. The arrival in 1732 of William Cosby as Governor 233 00:24:20.560 --> 00:24:27.360 of New York soon set off a bitter, factional dispute in the politics of the province. The 234 00:24:27.360 --> 00:24:33.720 The historical zealots for Zenger have grand eloquently referred to the opposition to Cosby 235 00:24:33.720 --> 00:24:41.240 as the Popular Party. In reality, the dispute was strictly between two factions of the landed 236 00:24:41.240 --> 00:24:48.240 oligarchy, and the trouble was raised over extremely petty issues. The opposition was 237 00:24:48.240 --> 00:24:54.480 headed by such oligarchs as Louis Morris, the Livingstons and the Stuyvesants, while 238 00:24:54.480 --> 00:25:01.480 While the Cosby faction was led by Delancey and Phillips, there were here no great liberal 239 00:25:01.480 --> 00:25:08.280 issues or principled liberal opposition. To advance their cause, the Morris faction established 240 00:25:08.280 --> 00:25:14.680 the New York Weekly Journal in 1733, with the learned lawyer James Alexander as its 241 00:25:14.680 --> 00:25:22.520 editor and John Peter Zenger of Palatine German descent as printer. While the Morris faction 242 00:25:22.520 --> 00:25:28.360 was not rooted in vital issues, the slashing, bitter nature of the weekly journal's attacks 243 00:25:28.360 --> 00:25:34.800 on the administration was in itself a bracing exercise of the freedom of the press in an 244 00:25:34.800 --> 00:25:42.640 America that badly needed such an example. Furthermore, the corollary exposés of cause-beast 245 00:25:42.640 --> 00:25:49.280 tyrannies and misdeeds had a liberal effect, even though not so intended by the authors. 246 00:25:49.280 --> 00:25:54.360 The articles were anonymous and written by various members of the Moors faction. 247 00:25:54.360 --> 00:26:00.320 Cosby soon decided to strike back by moving against the vulnerable Zenger. 248 00:26:00.320 --> 00:26:07.600 Twice he tried to obtain a grand jury indictment for seditious libel, and twice the jury refused. 249 00:26:07.600 --> 00:26:14.220 He then ordered the public burning of the journal, and on November 17, 1734, the governor 250 00:26:14.220 --> 00:26:21.620 Governor and Council ordered the summary arrest of Zenger on the charge of seditious libel. 251 00:26:21.620 --> 00:26:26.460 Avoiding the need for a grand jury indictment, the government placed the bail at the enormous 252 00:26:26.460 --> 00:26:34.260 sum of £400, forcing Zenger to remain in prison for nine months before coming to trial. 253 00:26:34.260 --> 00:26:39.760 Furthermore, for protesting Cosby's packing of the court with the two leading members 254 00:26:39.760 --> 00:26:46.760 The struggle against Cosby was not, at root, a popular or liberal affair, but in the Zenger 255 00:27:09.760 --> 00:27:20.760 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. 256 00:27:20.760 --> 00:27:27.760 On August 4, 1735, Andrew Hamilton won acquittal of Zenger by the trial jury. 257 00:27:27.760 --> 00:27:31.760 Two things were significant about this decision. 258 00:27:31.760 --> 00:27:38.880 First, Hamilton was able to persuade the jury to broaden its jurisdiction to cover the law 259 00:27:38.880 --> 00:27:45.720 as well as the facts. The customary practice insisted on by the court had been to limit 260 00:27:45.720 --> 00:27:52.880 the jury severely to deciding whether or not an item had been published by the defendant. 261 00:27:52.880 --> 00:27:59.520 It was then supposed to be the judge's role to decide whether the item was indeed libelous. 262 00:27:59.520 --> 00:28:06.000 Now Hamilton persuaded the jury to broaden its powers so as to decide the guilt or innocence 263 00:28:06.000 --> 00:28:12.320 of the defendant on the charge. Secondly, Hamilton defended the journal's articles on 264 00:28:12.320 --> 00:28:18.720 the ground that they were true, and thus was able to establish a precedent for truth as 265 00:28:18.720 --> 00:28:25.760 a valid defense against seditious libel. This contrasted to the earlier despotic practice 266 00:28:25.760 --> 00:28:43.760 These were legal advances to be sure, but they hardly justify the payens of praise that have been delivered for the Zenger decision. 267 00:28:43.760 --> 00:28:52.760 The important point is that the root evil, the common law of seditious libel, remained virtually intact. 268 00:28:52.760 --> 00:28:59.360 The jury is a protection against government judges, to be sure, but juries too can be 269 00:28:59.360 --> 00:29:03.620 despotic and rule against the liberty of the person. 270 00:29:03.620 --> 00:29:09.700 And truth as a defense is a very shaky read, for in political criticism there is no simple 271 00:29:09.700 --> 00:29:13.360 and precise method of demanding truth. 272 00:29:13.360 --> 00:29:19.920 If X prints the charge that Y is a tyrant, is this truth? 273 00:29:19.920 --> 00:29:29.000 And is a jury qualified to determine its truth? Should it have the power to do so? James Alexander, 274 00:29:29.000 --> 00:29:35.840 the legal mastermind of the Zanger defense, along with Andrew Hamilton, had conceded that 275 00:29:35.840 --> 00:29:42.240 to infuse into the minds of the people an ill opinion of a just administration is a 276 00:29:42.240 --> 00:29:48.720 crime that deserves no mercy. But how could a defendant be expected to prove the truth 277 00:29:48.720 --> 00:30:18.720 The Theory of Money and Credit 278 00:30:18.720 --> 00:30:25.820 Law Code, so essential to the orderly administration of justice. Each jury would then be deciding 279 00:30:25.820 --> 00:30:31.460 the law of the case on its arbitrary whim, and no citizen could know in advance whether 280 00:30:31.460 --> 00:30:38.460 his utterances or writings would be libelous or not. Furthermore, the Zenger case did not 281 00:30:38.460 --> 00:30:45.460 establish either of its two major contentions, narrow as they were, in English or in American 282 00:30:45.460 --> 00:30:53.920 Law. English law did not accept the power of juries to judge guilt until 1792, or truth 283 00:30:53.920 --> 00:31:01.500 as a defense until 1843. In America, the Chief Justice of New York was still maintaining 284 00:31:01.500 --> 00:31:08.500 that truth did not constitute a defense against seditious libel as late as 1804. 285 00:31:08.500 --> 00:31:14.500 Finally, perhaps the most important reason for belittling the importance generally given 286 00:31:14.500 --> 00:31:20.420 to the Zanger case is the fact that royal judges were not the major threats to freedom 287 00:31:20.420 --> 00:31:26.740 of the press in the colonial era. The main threat was the use of parliamentary privilege 288 00:31:26.740 --> 00:31:34.260 by which the assembly or the governor and council tried and punished the seditious libeler 289 00:31:34.260 --> 00:31:40.780 without benefit of jury. Trials for seditious libel at court were few and far between in 290 00:31:40.780 --> 00:31:46.540 in the colonial period. It was, in fact, the very rarity of the phenomenon that gave 291 00:31:46.540 --> 00:31:53.220 the Zenger case its fame. Far more important were the actions of the legislature. As Dean 292 00:31:53.220 --> 00:32:00.880 Levy writes, the traditionally maligned judges were virtually angels of self-restraint when 293 00:32:00.880 --> 00:32:07.080 compared with the intolerance of community opinion, the tyranny of governors, acting 294 00:32:07.080 --> 00:32:15.360 in a quasi-judicial capacity with their councils, and especially the popularly-elected assembly, 295 00:32:15.360 --> 00:32:20.420 that the law bore down so harshly on verbal crimes in colonial America was the result 296 00:32:20.420 --> 00:32:28.500 of inquisitorial propensities of the non-judicial branches which bide with each other in ferreting 297 00:32:28.500 --> 00:32:34.800 out slights on the government. The law of seditious libel was enforced in America chiefly 298 00:32:34.800 --> 00:32:41.640 by the provincial legislatures, exercising their power of punishing alleged breaches 299 00:32:41.640 --> 00:32:45.160 of parliamentary privilege. 300 00:32:45.160 --> 00:32:52.160 The common law courts gathered a very few seditious scalps and lost as many two acquittals, 301 00:32:52.160 --> 00:32:58.120 but the assemblies, like the House of Commons, which they emulated, needing no grand jury 302 00:32:58.120 --> 00:33:05.120 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. 303 00:33:16.120 --> 00:33:23.120 Furthermore, from 1745 on, the assembly consistently prohibited the printing of the votes or debates of the legislature without prior authorization. 304 00:33:28.120 --> 00:33:38.120 In 1753, the printer Hugh Gain published the king's instructions to the new governor of New York, as well as the latter's speech to the assembly. 305 00:33:38.120 --> 00:33:48.120 Immediately, the assembly summoned Gain and demanded to know how he dared print the letter to the new governor of New York. 306 00:33:48.120 --> 00:33:53.000 New Governor of New York, as well as the latter's speech to the Assembly. 307 00:33:53.000 --> 00:33:59.180 Immediately, the Assembly summoned Gain and demanded to know how he dared print any part 308 00:33:59.180 --> 00:34:03.760 of the proceedings without license or prior approval. 309 00:34:03.760 --> 00:34:09.800 Humbly abasing himself, the startled Gain was released by the Assembly, but only after 310 00:34:09.800 --> 00:34:13.400 it forced him to pay the cost of the case. 311 00:34:13.400 --> 00:34:20.460 A more serious case occurred in 1756 when James Parker published an article on the depressed 312 00:34:20.460 --> 00:34:26.820 conditions of the country in his New York Gazette. The Assembly took this to be a grave 313 00:34:26.820 --> 00:34:34.180 reflection on itself and summarily voted Parker and his assistant to be guilty of high misdemeanor 314 00:34:34.180 --> 00:34:41.380 and contempt of authority. Seized and hauled into the Assembly, the frightened Parker and 315 00:34:41.380 --> 00:34:47.700 and his aid abjectly confessed their guilt and begged pardon and showed their good faith 316 00:34:47.700 --> 00:34:56.700 by informing on the Reverend Hezekiah Watkins of Newburgh as author of the offending article. 317 00:34:56.700 --> 00:35:01.580 Despite their abasement, the editors were put into jail for a week by the assembly, 318 00:35:01.580 --> 00:35:08.020 which also moved, of course, for the immediate arrest of the unfortunate minister. The Reverend 319 00:35:08.020 --> 00:35:14.300 Mr. Watkins proved to be no more heroic than his editors, begging forgiveness for his misplaced 320 00:35:14.300 --> 00:35:20.540 zeal. He, too, was jailed by the assembly. Watkins was discharged the next day, but only 321 00:35:20.540 --> 00:35:25.700 after being forced to pay the costs of his case. 322 00:35:25.700 --> 00:35:31.420 Two years later, Samuel Townsend, Justice of the Peace in Queens County, sent a petition 323 00:35:31.420 --> 00:35:36.140 to the Speaker of the Lower House, asking for relief for some refugees stationed on 324 00:35:36.140 --> 00:35:44.140 The speaker denounced Townsend's letters insolent, and the assembly then promptly ordered his appearance. 325 00:35:44.140 --> 00:35:52.140 When Townsend bravely failed to heed the summons, he was cited for contempt, seized and hauled before the assembly. 326 00:35:52.140 --> 00:35:57.140 Townsend surprisingly failed to show the usual abject humility. 327 00:35:57.140 --> 00:36:07.140 The Enraged Assembly voted him clearly guilty of a high misdemeanor and most daring insult and threw him into prison. 328 00:36:07.140 --> 00:36:21.140 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. 329 00:36:21.140 --> 00:36:25.140 The Assembly then graciously released Judge Townsend. 330 00:36:25.140 --> 00:36:32.140 It is certainly significant that of the hapless defendants appearing before the New York Assembly 331 00:36:32.140 --> 00:36:40.140 twenty years after Zenger, none bothered to justify himself on the basis of liberty of the press. 332 00:36:40.140 --> 00:36:48.140 Editor James Parker, battling for his own conception of freedom of the press in 1759, 333 00:36:48.140 --> 00:36:52.140 summoned up the most enlightened of American opinion. 334 00:36:52.140 --> 00:37:10.140 Liberty truly reigns, wrote Parker, where every one hath the 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. 335 00:37:10.140 --> 00:37:18.140 And the laws, let it not be forgotten, included punishment of seditious libel and breach of parliamentary privilege. 336 00:37:18.140 --> 00:37:29.140 Indicative of more reactionary opinion was an editorial in 1753 by a trio of prominent new young New York lawyers and friends of Parker. 337 00:37:29.140 --> 00:37:46.140 These lawyers, William Livingston, John Moran Scott, and William Smith, radical Republicans all, averred that whatever a printer prostitutes his art by the publication of anything injurious to his country, it is criminal. 338 00:37:46.140 --> 00:37:52.700 It is high treason against the state. Treason of course constituted a capital crime in contrast 339 00:37:52.700 --> 00:38:00.640 to the mere misdemeanor involved in seditious libel. Thus, far from the Zenger case establishing 340 00:38:00.640 --> 00:38:07.140 freedom of the press in either thought or action, we find New York opinion a generation 341 00:38:07.140 --> 00:38:14.660 later backsliding to the pre-Zenger status quo. James Alexander's narrow advance for 342 00:38:14.660 --> 00:38:19.980 of the Freedom of the Press turned out to be an isolated spark rather than the spearhead 343 00:38:19.980 --> 00:38:26.780 of a mighty move forward. During the remainder of the colonial period, only Thomas Boland 344 00:38:26.780 --> 00:38:33.620 in 1766, an eminent lawyer in Massachusetts, reached at the modest height of Alexander's 345 00:38:33.620 --> 00:38:38.820 devotion to freedom of the press. Nor were the points pressed by this angered 346 00:38:38.820 --> 00:38:42.620 and Defense Original, as some writers have stated. 347 00:38:42.620 --> 00:38:47.900 The Principle of Truth as a Defense Against Liable was taken by Alexander from the famous 348 00:38:47.900 --> 00:38:55.220 Cato's Letters, written in the early 1720s, by two leading English liberals, John Trenchard 349 00:38:55.220 --> 00:38:57.300 and Thomas Gordon. 350 00:38:57.300 --> 00:39:03.100 The argument that the jury should decide the law, as well as the facts in Seditious Liable, 351 00:39:03.100 --> 00:39:10.100 was explicitly put forward in 1692 by William Bradford, defendant in the first criminal 352 00:39:10.100 --> 00:39:17.740 trial for seditious libel in the colonies. Bradford, the first printer to work in Pennsylvania, 353 00:39:17.740 --> 00:39:24.220 had been a member of the Keith faction of dissident Quakers, and for printing Keithian 354 00:39:24.220 --> 00:39:31.980 tracts he was charged with seditious libel. Moreover, Bradford's trial judge was convinced 355 00:39:31.980 --> 00:39:42.420 William Bradford's successful example was followed four years later in Massachusetts 356 00:39:42.420 --> 00:39:48.780 by Thomas Moll, a Quaker merchant who had published a book attacking tyranny in Massachusetts 357 00:39:48.780 --> 00:39:55.940 Bay. Moll also succeeded and was acquitted by the jury, but on religious rather than 358 00:39:55.940 --> 00:39:58.860 on Freedom of the Press grounds. 359 00:39:58.860 --> 00:40:05.200 The case of William Bradford highlights an ironic aspect of the Zenger affair. Bradford 360 00:40:05.200 --> 00:40:10.380 was soon appointed royal printer by Governor Fletcher of New York, who at that time was 361 00:40:10.380 --> 00:40:16.900 briefly in control of Pennsylvania. Bradford's minimal devotion to Freedom of the Press, 362 00:40:16.900 --> 00:40:24.560 despite his own experiences, is shown by his editorship of the very fawning and licensed 363 00:40:24.560 --> 00:40:30.560 New York Gazette, against which Zenger and his backers were rebelling. 364 00:40:30.560 --> 00:40:35.720 Bradford's reaction to the arrest of Zenger was characteristic. He condemned the defendant 365 00:40:35.720 --> 00:40:42.720 for publishing pieces tending to set the province in aflame and to raise sedition and tumults. 366 00:40:42.720 --> 00:40:48.880 A further irony is the earlier role of the presumed champion of freedom of the press, 367 00:40:48.880 --> 00:40:56.880 In 1719, Bradford's son, Andrew, founded the first paper in Philadelphia, the American Weekly Mercury. 368 00:40:56.880 --> 00:41:06.880 Three years later, the Council hauled young Bradford before it to answer the charge of publishing a pamphlet and article criticizing the government. 369 00:41:06.880 --> 00:41:15.880 Bradford not only humbly apologized, but treacherously tried to place responsibility for the printing on his assistance. 370 00:41:15.880 --> 00:41:23.320 The governor and council, not yet mollified, ordered Bradford that he must not for the 371 00:41:23.320 --> 00:41:29.320 future presume to publish anything relating or concerning the affairs of this government 372 00:41:29.320 --> 00:41:35.820 or the government of any other of his majesty's colonies without the permission of the governor 373 00:41:35.820 --> 00:41:41.760 or secretary of the province. Such was the state of freedom of the press in colonial 374 00:41:41.760 --> 00:41:47.880 of Pennsylvania. The ironic twist is the fact that one of the counselors laying down 375 00:41:47.880 --> 00:41:54.880 this appalling and despotic order was none other than Andrew Hamilton. 376 00:41:54.880 --> 00:42:01.380 As it happened, Andrew Bradford was again in trouble in 1729 when his Mercury published 377 00:42:01.380 --> 00:42:06.460 a letter critical of the British government. The Council of Pennsylvania denounced the 378 00:42:06.460 --> 00:42:16.380 Bradford was jailed, and his home and shop searched. Characteristically, Bradford saved 379 00:42:16.380 --> 00:42:24.180 himself by pleading innocence and naming the author as a Reverend Mr. Kimball of Long Island. 380 00:42:24.180 --> 00:42:29.780 Bradford was recommitted to jail for his sins, but was finally released for his cooperative 381 00:42:29.780 --> 00:42:36.780 of Attitude. Again, it is interesting to note that the recorder of the Council and one of 382 00:42:36.780 --> 00:42:44.260 the major persecutors of Bradford was Andrew Hamilton. Hamilton, moreover, was able to 383 00:42:44.260 --> 00:42:51.100 use the young and ambitious Benjamin Franklin to pursue a vendetta against Bradford. By 384 00:42:51.100 --> 00:42:57.940 aiding Franklin's new Pennsylvania Gazette against the rival Mercury and by giving Bradford's 385 00:42:57.940 --> 00:43:03.060 Coveted Public Printing Contract to His Young Protégé 386 00:43:03.060 --> 00:43:09.420 It is no surprise that in this inter-colonial struggle of factions Andrew Bradford should 387 00:43:09.420 --> 00:43:16.220 join his father in taking a leading role in approving the persecution of Zenger. Bradford's 388 00:43:16.220 --> 00:43:22.820 acid stricture against Hamilton that a single attempt on the side of liberty hardly overweighed 389 00:43:22.820 --> 00:43:30.020 Hamilton's long record of hostility to a free press is not refuted by the Bradford's own 390 00:43:30.020 --> 00:43:36.780 lack of consistent dedication to the libertarian cause. Neither did the Zenger case establish 391 00:43:36.780 --> 00:43:42.260 freedom of the press in the colonies beyond New York. We have already seen its lack of 392 00:43:42.260 --> 00:43:50.260 influence in Massachusetts. In 1758, the Quaker-run Pennsylvania Assembly decided to take revenge 393 00:43:50.260 --> 00:44:17.220 Smith's future father-in-law, Judge William Moore, had been investigated in late 1757, 394 00:44:17.220 --> 00:44:19.300 for conduct of his office. 395 00:44:19.300 --> 00:44:24.460 The judge's defense was printed in Smith's German-language newspaper, as well as in 396 00:44:24.460 --> 00:44:31.220 other papers, and the assembly used this as an excuse to arrest Smith and Moore for criminal 397 00:44:31.220 --> 00:44:33.980 libel of itself. 398 00:44:33.980 --> 00:44:40.340 Moore was imprisoned for five days and convicted by the assembly for false, scandalous, virulent 399 00:44:40.340 --> 00:44:43.020 and seditious libel of itself. 400 00:44:43.020 --> 00:44:48.340 The public hangman was ordered to burn the publication and the sheriff to keep him in 401 00:44:48.340 --> 00:44:56.140 in jail indefinitely and to ignore any writs of habeas corpus. After this act of high-handed 402 00:44:56.140 --> 00:45:04.140 despotism the assembly turned its tender ministrations to the Reverend Mr. Smith. Smith was now charged 403 00:45:04.140 --> 00:45:10.140 with abetting the publication of the vicious libel by Moore. The assembly took the precaution 404 00:45:10.140 --> 00:45:17.840 of voting Smith's guilt by a large majority even before his so-called trial began, thereby 405 00:45:17.840 --> 00:45:25.800 by launching the fascinating procedure of deciding upon the verdict before the trial was underway. 406 00:45:25.800 --> 00:45:32.160 The imprisoned Smith was denied bail, and the assembly took the further pretrial precaution 407 00:45:32.160 --> 00:45:38.560 of not permitting Smith either to dispute its authority or to argue that Moore's article 408 00:45:38.560 --> 00:45:41.520 was not a libel. 409 00:45:41.520 --> 00:45:47.480 Questions against Smith and more were procured by intimidation. Smith's friend, Dr. Phineas 410 00:45:47.480 --> 00:45:54.480 Bond, first refused to answer questions against Smith. He was thereupon found guilty of high 411 00:45:54.480 --> 00:46:01.320 contempt by the assembly and thrown into jail for an indefinite period. After a few hours 412 00:46:01.320 --> 00:46:07.760 of this treatment, Bond changed his mind and gave testimony along with other chastened 413 00:46:07.760 --> 00:46:14.440 Friends of Smith, Anthony Ambruster, printer of the German paper involved, also proved 414 00:46:14.440 --> 00:46:21.200 an easy mark for the assembly. At first refusing to answer certain questions, Ambruster was 415 00:46:21.200 --> 00:46:27.880 committed to jail indefinitely. After one day he begged the assembly's pardon and answered 416 00:46:27.880 --> 00:46:36.080 all of its questions. The trial of Smith, with the assembly functioning as prosecutor, judge 417 00:46:36.080 --> 00:46:43.560 and Jury, with its verdict already pronounced, proceeded to its foregone conclusion. Smith 418 00:46:43.560 --> 00:46:48.480 was denied the privilege of appeal to the King, and was sentenced to jail until he should 419 00:46:48.480 --> 00:46:56.280 purge himself of his crime by humble submissions and confession of error. Smith proved a tougher 420 00:46:56.280 --> 00:47:02.760 nut to crack than the witnesses. He rose to protest his innocence, and striking his hand 421 00:47:02.760 --> 00:47:08.240 Smith, upon his breast, assured them no punishment they could inflict would be half so terrible 422 00:47:08.240 --> 00:47:15.460 to him as the suffering his tongue to give his heart the lie. 423 00:47:15.460 --> 00:47:20.440 Smith also had the courage and the vision to invoke, at least fleetingly, the freedom 424 00:47:20.440 --> 00:47:23.600 of the press as part of his defense. 425 00:47:23.600 --> 00:47:28.760 Smith's noble and dramatic speech moved several people in the audience to burst into applause. 426 00:47:28.760 --> 00:47:34.760 They were of course promptly arrested and only released after being forced to beg the pardon 427 00:47:34.760 --> 00:47:37.080 of the mighty assembly. 428 00:47:37.080 --> 00:47:42.340 As for Smith, he was returned to jail for an indefinite term and the sheriff was again 429 00:47:42.340 --> 00:47:46.960 ordered to disregard any writs of habeas corpus. 430 00:47:46.960 --> 00:47:52.120 The embattled Smith and more petitioned the chief justice and the governor for habeas 431 00:47:52.120 --> 00:47:58.440 corpus writs, but the highest court ruled that while the assembly sat in session its 432 00:47:58.440 --> 00:48:05.440 Smith and Moore were only released when the Assembly was recessed in three months' time, 433 00:48:09.440 --> 00:48:15.000 but they were arrested again in three weeks when the Assembly reconvened. Fortunately, 434 00:48:15.000 --> 00:48:20.600 the Assembly adjourned for the summer and the hapless prisoners were again released, 435 00:48:20.600 --> 00:48:25.720 but on meeting again in the fall, the Assembly yet again ordered the arrest of Smith and 436 00:48:25.720 --> 00:48:32.720 and more. This time the two victims had wisely turned fugitives and could not be found. 437 00:48:33.800 --> 00:48:40.600 In hiding, Moore courageously published another attack on the Assembly. Once again a new session 438 00:48:40.600 --> 00:48:45.720 of the Assembly reordered his and Smith's arrest, but Smith had fled to England to appeal 439 00:48:45.720 --> 00:48:52.040 to the Crown while the Assembly continued to seek the elusive Moore. 440 00:48:52.040 --> 00:48:57.480 In England, Smith's battle against the despotism of the assembly was strenuously opposed by 441 00:48:57.480 --> 00:49:05.380 that great fighter for freedom, Benjamin Franklin, English agent for the assembly. Finally, however, 442 00:49:05.380 --> 00:49:12.880 the Privy Council issued its ruling in 1759. It decided that Moore's criticism had indeed 443 00:49:12.880 --> 00:49:21.380 been a libel, thus continuing the law of seditious libel in full force, but ruled that the assembly 444 00:49:21.380 --> 00:49:29.540 had no power to imprison for breach of privilege or to suspend the writ of habeas corpus. Their 445 00:49:29.540 --> 00:49:36.860 long ordeal over, Smith and Moore were finally allowed to return to Philadelphia. Future 446 00:49:36.860 --> 00:49:43.140 Assemblies, sad to say, paid little attention to the Crown's attempt to check their power 447 00:49:43.140 --> 00:49:50.460 to imprison the seditious. The situation was about the same in the other colonies. The 448 00:49:50.460 --> 00:49:56.140 The Rhode Island Legislature and the New Hampshire Assembly each imprisoned a critic 449 00:49:56.140 --> 00:50:04.100 in the mid-1750s. If there were fewer cases in the South, it was only because the Southern 450 00:50:04.100 --> 00:50:11.220 press was more passive and more under government control. Virginia had no newspapers until 451 00:50:11.220 --> 00:50:18.740 1733, and the government newspaper enjoyed a monopoly in the colony until as late as 452 00:50:18.740 --> 00:50:25.620 The Carolinas and Georgia came to enjoy the benefits of printing and of a non-government 453 00:50:25.620 --> 00:50:27.420 press even earlier. 454 00:50:27.420 --> 00:50:32.540 Clearly, there was little chance for popular opposition to the government to develop in 455 00:50:32.540 --> 00:50:35.060 the southern colonies. 456 00:50:35.060 --> 00:50:41.340 Freedom of speech was of course subject to the same severe restraints for seditious libel 457 00:50:41.340 --> 00:50:44.180 as was expression in the press. 458 00:50:44.180 --> 00:50:51.340 The record of persecution of opinion in the 17th century included the cases of Roger Williams 459 00:50:51.340 --> 00:50:56.740 and Anne Hutchinson and the Baptist and the Quakers. 460 00:50:56.740 --> 00:51:04.340 In 1711, Governor Spotswood of Virginia issued an order threatening loss of life or limb 461 00:51:04.340 --> 00:51:12.260 or imprisonment to anyone daring to disseminate seditious principles in the province. 462 00:51:12.260 --> 00:51:19.700 The Virginia Council persecuted a justice of the peace in 1714 for many seditious speeches 463 00:51:19.700 --> 00:51:27.660 and a minister six years later for false and scandalous speeches against the Crown. 464 00:51:27.660 --> 00:51:35.460 In 1758, the Virginia House of Burgesses arrested the Reverend Jacob Rowe, professor of philosophy 465 00:51:35.460 --> 00:51:41.700 at the College of William and Mary, for a scandalous and malicious criticism of itself 466 00:51:41.700 --> 00:51:48.700 at a Private Party. Roe was forced to beg the House's pardon and to pay its cost in 467 00:51:48.900 --> 00:51:55.900 the case. There were few common law prosecutions for seditious libel, but as we have seen, 468 00:51:57.020 --> 00:52:03.320 this did not mean that freedom of expression in 18th century America was well protected. 469 00:52:03.320 --> 00:52:10.320 In fact, its powerless state is indicated by the common law trial in 1723 of two Pennsylvania 470 00:52:11.700 --> 00:52:18.700 The Trial Judge, Robert Ashton, instructed the jury herewith, 471 00:52:41.700 --> 00:53:07.980 What severity impudent and presumptuous for private persons to meddle with matters of so high in 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?