Benjamin quarreled afresh with his brother and went to Philadelphia.

James was imprisoned a second time, in June of 1722, because the "Courant" charged the authorities with tardiness in the matter of a pirate who appeared off Block Island. The Council resolved that "said paragraph is a high affront to this government" and sent James to jail. After a week he said in a petition that he was truly sensible and heartily sorry for the offense he had given, acknowledged his inadvertency and folly, as well as his indiscretion and indecency when before the court, and on the score of ill health was permitted the liberty of the prison house and yard. The next month the Council voted that his paper should not be published "without the same be first perused and allowed by the Secretary, as has been usual"; and put him under bonds to be of good behavior.1

William Penn's Frame of Government of 1682 had this provision: "All scandalous and malicious reporters, backbiters, defamers, and spreaders of false news, whether against Magistrates, or private persons, shall be accordingly severely punished, as enemies to the peace and concord of this province." The authorities of Pennsylvania remembered this when the first newspaper there, the "Mercury," which was started in 1719, printed in 1721 this paragraph: "Our General Assembly are now sitting, and we have great expectations from them, at this juncture, that they will find some effectual remedy to revive the dying credit of this Province, and restore us to our former happy circumstances."

For this apparently harmless expression the publisher was summoned before the Council. Upon his averring that it was written and inserted by a journeyman without his knowledge, and his regretting the publication, he was discharged with a reprimand, and a warning never to publish anything more relative to the affairs of any of the colonies. Later, for an equally harmless paragraph that Benjamin Franklin had written, the publisher was arrested, committed to prison, and bound over to the court, but this time he showed some pluck and the matter ended.2

When in 1704 the Assembly of Carolina voted that every person thereafter chosen a member should receive the sacrament of the Lord's Supper according to the rites and usages of

1 Frederic Hudson, Journalism in the United States, 51-71. 2 Ibid., 60.

the Church of England, the Rev. Mr. Marston declared that many of the members of the Commons House passing the act were constant absentees from church and that eleven of them were never known to have received the sacrament. From his pulpit he violently assailed the act and all who supported it. Ordered by the House to lay the minutes of his sermons before its bar, he refused, whereupon he himself was summoned to the bar, was censured, and ultimately was deprived of his living. At the same session Landgrave Thomas Smith was committed to the custody of the Messenger because he had reflected very sharply on the conduct of the House, in private letters that fell into the hands of the Governor. Smith was chosen Speaker of the next House and had the satisfaction of seeing the tables turned, for one of his persecutors, Colonel Risbee, the author of the bill against dissenters, was brought to the bar on a charge of vilifying the Assembly while over a bottle of wine at his tavern. In 1722 when twenty-eight of the merchants of Charleston, among the leading men in the province, presented a petition and memorial against a new issue of paper money, they called attention to the bad faith of the Assembly in repealing several of the sinking fund acts before these could be put in operation. Thereupon the House retorted by declaring the memorial "false and scandalous" and ordered the signers to be taken into custody, where they remained until five or six days later they acknowledged their fault and were discharged after paying heavy fees to the Clerk and Messenger.

Faultfinders much excited the lawmakers of New Jersey. We are told that the overthrow of Coxe and his party in 1716 caused especially bitter feelings in the province, and rendered the members of the loyal party in the Assembly extremely unpopular in certain districts. The supporters of Coxe added fuel to the fire by circulating various writings attacking their opponents. Thus stung to action, the reorganized 7th Assembly named a committee on libels, with power to send for persons and papers, and numerous complaints of insult were brought before the House. William Lawrence reported that he had been insulted by one Benjamin Johnstone, of Monmouth, who declared in slanderous terms that Lawrence had been false to his trust in the Assembly. The House voted the words false and scandalous, and ordered the Sergeant to arrest Johnstone, but he, having 1 Edward McCrady, Hist. of So. Carolina, 1, 408 et sqq.

notice, escaped. A more serious charge was soon after made against Major Sandford and Thomas Van Buskirk, of Bergen, for scandalizing Philip Schuyler, the representative of the same county. Sandford and Van Buskirk were brought in by the Sergeant and charged with reporting that Schuyler "drank a health to the damnation of the Governor and the justices of the peace." Sandford acknowledged this utterance, and presented an affidavit of John Wright, coroner of Bergen, to prove its truth. Schuyler denied the statement of the affidavit, but admitted a quarrel and that he had kicked John Wright. In the end the House voted that Schuyler was not guilty and he took his seat.1

In New York John Peter Zenger, who started the "Weekly Journal" in 1733, got into trouble a year later. After repeated attacks on the government he was arrested on the first charge of newspaper libel in America. The arrest produced great excitement and his trial created intense interest. In the opinion of Gouverneur Morris, Zenger's acquittal was "the dawn of that liberty which afterward revolutionized America." His counsel was the celebrated Andrew Hamilton of Philadelphia. The Common Council of New York presented to Hamilton the freedom of the city for the remarkable service done by him to the city and colony "by his learned and generous defence of the rights of mankind, and the liberty of the Press."

In another episode of provincial New York the reader may find less of inspiration and more of amusement. The Journal of the Assembly for 1738, for the last day but one of the session, after a formal preamble reciting, "whereas on the complaint of Colonel Chambers that one Samuel Bevier had calumniated him by saying that he was a rogue and a liar, and likewise a fool and no fit person to be an Assemblyman, and that he was always drunk, and that the other Assemblymen could always make him do as they had a mind," and whereas Bevier could not be arrested before the dissolution, records that thereupon "the House unanimously certified that the said Colonel Chambers has duly attended the service of the House in a sober and discreet manner, and that he (as far as is known to the other members) always acted as a free representative for the public services of this country." 2

1 E. P. Tanner, "The Province of New Jersey," Col. Univ. Studies, XXX, 365-66. 2 Ellis H. Roberts, New York, 1, 283.

In Virginia the struggle to protect members of the Assembly against slander continued in the eighteenth century. As in the century before, the records seem to make little distinction between the privilege of the member and the privilege of the House, for as a rule a slander of even a single member was looked upon as a breach of privilege of the House as well as of that member. Mr. Fife, a clergyman of Norfolk, preached a sermon which reflected on two Burgesses, and the committee on privileges was ordered to investigate to ascertain whether there had been a breach of privilege. In 1735, John Doncastle was declared guilty of a breach of the privilege of the House and ordered into custody because he had used abusive language toward a member. Doncastle made excuse that he was irritable because of ill health and asked pardon for the offense. An assault on or abuse of a member of the family of a Burgess, or an assault upon his servant, was regarded as a breach of privilege and the guilty party was brought before the House, reprimanded and made to pay the costs. From many cases it is clear that the House took much care not only to defend its members, but to protect its own good name. Evidently it believed that to allow an innocent member to be slandered without protest, would have invited wholesale abuse and a consequent discrediting of the House itself.1

When the revolutionary crisis expanded the conception of democratic liberty, Pennsylvania led in declaring as to this particular matter: "The printing presses shall be free to every person who undertakes to examine the proceedings of the Legislature or any part of government." The devotees of freedom, however, were not yet quite ready to practice what they preached. For example, in April of 1778 the General Court of Massachusetts dismissed its chaplain, Rev. Dr. Gordon, for some free remarks written by him, and published in the newspapers, in which the Court was charged with "intrigue" in its conduct respecting the newly proposed Constitution. Yet on paper Massachusetts was ready to surpass Pennsylvania in emphasis, and it said in 1780: "The liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this Commonwealth." A dozen years later Delaware modified slightly the Pennsylvania declaration, and added a proviso emasculating it: "The press shall be IE. I. Miller, The Legislature of the Province of Virginia, 89–91.

free to every citizen who undertakes to examine the official conduct of men acting in a public capacity; and any citizen may print on any subject, being responsible for the abuse of that liberty."

It was what they deemed the abuse of the liberty that led the Federalists in 1798 to enactment on the subject in the notorious Alien and Sedition laws which proved fatal to their party. They were goaded to it by the venomous attacks of the Republican press. One section of the Sedition Law subjected to a fine of as much as two thousand dollars or imprisonment not exceeding two years, any man who printed or published false, scandalous, and malicious writings against the government of the United States, or either House of Congress, or the President, with intent to defame them, or to bring them into contempt or disrepute, or to excite against them the hatred of the good people of the United States, or to stir up sedition, or to incite resistance to law, or to abet hostile designs of a foreign nation. Prof. Frank M. Anderson made a thorough search to learn of all the arrests that followed. There appear to have been about twenty-five persons arrested. Only ten or eleven came to trial; in ten cases the accused were found guilty, and possibly in one other case there may have been an acquittal. At least eight newspapers were attacked.1

The democratic spirit that was assailed by the Sedition Law had already led Tennessee, framing her first Constitution in 1796, to say: "The printing-presses shall be free to every person who undertakes to examine the proceedings of the Legislature, or of any branch or officer of government; and no law shall ever be made to restrain the right thereof." Ohio in 1802 copied the Tennessee language with unessential modifications, and Louisiana (1812) said much the same thing.

Meanwhile the constitution-makers were attacking from another direction restraint of speech. The common-law theory that the truth might not be urged in defense against the charge of libel, was beginning to fall into disrepute. With respect to criticism of men in public life, its harm was especially conspicuous, and there was the weak point for the first inroad. Pennsylvania in 1790 put into her Declaration of Rights: "In prosecutions for the publication of papers investigating the official 1 "The Enforcement of the Alien and Sedition Laws," Am. Hist. Assn. Ann. Report for 1912, 120.