Chapter One
The English and Colonial Background
American colonists brought English law, or rather some of it, with themto the new world. English law provided Americans with ready-made rationalesfor the suppression of speech: freedom of the press was no morethan protection against prior restraint, truth did not justify criticisms ofgovernment or its officials, and the law punished circulation of ideaswith a tendency to cause harm. (A major harm was bringing governmentor its officers into disrepute; the harm did not have to be imminentor even likely.) These ideas were initially developed for a monarchy inwhich the king was sovereign. They continued to serve a mixed governmentof king and Parliament, in which a very oligarchic Parliament wassupreme. These English justifications for suppression appear again andagain in the struggle for representative government and free speech inearly American history.
Still, this legal orthodoxy was hotly contested. A radical seventeenth-centurycritique insisted that the people (not Parliament) were sovereignand that government was the agent or trustee of the people. In thisview, free speech was an essential mechanism to ensure representativegovernment and to see that governmental officials did not abuse thepeople's trust. The radical critique also rejected the orthodox legal viewof the role of the jury—which held that the judge, not the jury, shoulddecide, for example, if a book was seditious.
SEVENTEENTH-CENTURY ORIGINS
American revolutionaries saw the history of seventeenth-century Englandas a guide to the meaning of liberty. As one scholar has noted, they"argued their case against Parliament and the King largely in the languageof Whig history and the supposedly ancient Anglo-Saxon rightsof Englishmen." This tradition of dissent, which developed in Englandin the seventeenth and eighteenth centuries, shaped the later Americanstory of free speech.
The interrelated struggles of the seventeenth century were strugglesbetween contending groups for political power and the right to definethe nature of the nation: a contest between king and Parliament over thepower of Parliament, struggles over freedom of debate in Parliament andover basic legal liberties—including the power of the king to imprisonwithout trial. There were also major conflicts over religion. One importantfigure in the political conflicts was Edward Coke, a former judgeand distinguished legal writer and champion of the view that the kingwas limited by the law. Coke and others led Parliament to adopt the Petitionof Right of 1628. The petition proclaimed several rights, includingrights against taxation without the consent of Parliament, against imprisonmentwithout cause shown, against denial of due process of law,and against quartering troops in private homes.
Seventeenth-century opponents of the king were routinely prosecuted.The crown arrested and punished printers and publishers of unorthodoxpolitical and religious tracts. Religious dissenters, includingmany whose idea of religious freedom was the freedom to suppress thosewith different views, were also victims of the king's courts. Like many ofthose facing arrest and punishment, the critics of the king and, later, ofParliament developed an intense interest in the law and looked to legalprocedures for protection. Although they appealed to history for justification,they were also innovators. Many sought the future in their visionof the past.
THE LEVELLERS AND CONSTITUTIONAL LIMITATIONS
In England in the 1640s, religious ideas about the equality of all soulsand the accessibility of religious truths to all people led some to a secularegalitarianism that threatened existing hierarchies. These dissentersheld that government, like religion, was something ordinary peoplecould understand, and that ordinary people should enjoy free speechabout government. Free speech and press implies the right of anyone toinvestigate (and challenge) existing political, economic, social, or religioushierarchies. In that respect it is profoundly egalitarian.
During the English Civil War of the 1640s, one group of English dissenters(eventually known as the Levellers) developed a theory of popularsovereignty that was similar to the American revolutionary view.Popular sovereignty became, in turn, a primary justification for broadprotection of speech related to public affairs. The Levellers were also suspiciousthat those with governmental power might abuse that power forpersonal ends. This suspicion became a second rationale for broaderprotection of speech. Levellers appealed to the jury as a shield againstoppressive governmental power. (Their arguments for a broad role forthe jury also reappear in later English and American arguments overgovernmental power and free speech.) The Levellers also developed theidea of a constitution that expressed the wishes of the sovereign peopleand limited governmental power.
As understood by some present-day historians, the English Civil Warthat produced the Levellers was a conflict between a powerful landedgentry represented in Parliament and the king and his supporters. Theopponents of the king appealed to the "people" to support their causeand to man the armies that confronted the king. With the defeat of theking, the broad parliamentary coalition fractured. Some more middlingsupporters of the parliamentary cause, members of the army, merchantsand artisans, and members of dissenting religious sects, demandedgreater religious toleration and a greater share of power—including theright to vote for members of Parliament. They looked for meaning in thebloody struggle of the Civil War and found that meaning in a rebirthof freedom—electoral, political, and religious. They thought they werepursuing a "rebirth" of freedom because they believed in a golden age ofAnglo-Saxon liberty that had been destroyed by the Norman Conquest.
By the mid-1640s, a persistent and courageous group of Leveller dissenterscoalesced around John Lilburne, an extraordinary and charismaticcrusader for what he termed "the rights of freeborn Englishmen."Lilburne had remarkable abilities to mobilize, express, personify, andfocus discontent. Under King Charles I, he had been whipped, pilloried,and imprisoned by the bishops presiding over the royal court of theStar Chamber for refusing to answer incriminating questions about hisrole in importing Protestant religious books. From the pillory Lilburnemade a speech attacking his prosecution as illegal and unjust. When theauthorities gagged him, he reached under his shirt, where he had concealedsome of his outlawed tracts, and threw copies to the crowd. Duringthe Civil War, Parliament freed him and declared his imprisonmentillegal. Lilburne joined the parliamentary army and rose to the rank oflieutenant colonel, but he eventually resigned rather than take an oathto support a Presbyterian religious establishment.
Lilburne and his supporters sought a unicameral Parliament that reflectedthe population and that was elected by broader suffrage. Theyalso sought the abolition of the hereditary House of Lords, protection ofbasic liberties against the power of Parliament, and greater freedom ofreligion. When Lilburne and his followers appealed to Parliament to enactbroader suffrage and religious toleration, they soon found themselvesat odds with their former parliamentary allies. Lilburne's groupwas branded as "Levellers" by their opponents, who claimed that generaladult male suffrage would lead to economic leveling.
Leaders in Parliament and in Cromwell's government attempted toforce Levellers to answer self-incriminating questions. They targetedthem with searches for incriminating papers and pamphlets, with attemptsto keep their tracts from the public by requiring a governmentlicense before publication, with search-and-destroy missions aimed attheir hidden printing presses, and with charges of sedition and treason.In the face of these attacks, Lilburne and other Leveller leaders appealedto the rights of freeborn Englishmen, set out, as they thought, in theMagna Carta, in the Petition of Right, in the common law, in parliamentarydeclarations, and in the writings of Sir Edward Coke. They also appealedto natural law.
In many of their appeals to what they considered historic liberties,they put parliamentary declarations against the king to new uses. Lilburneand other Leveller leaders insisted that Magna Carta limited Parliamentas well as the king. But Leveller William Walwyn, a merchantand prolific pamphleteer, insisted that Magna Carta itself representedonly a part of the liberties of the people. "MAGNA CARTA (you mustobserve)," Walwyn wrote, "is but a part of the peoples rights and liberties,being no more but what with much striving and fighting, was by theblood of our Ancestors, wrested out the pawes of those Kings, who byforce had conquered the Nation, changed the lawes and by strong handheld them in bondage."
When the letter of the law did not provide protection, embattled Levellerleaders turned elsewhere. They appealed to the spirit of the law overits letter. They made innovative legal claims. In 1649, Lilburne was triedfor treason by Cromwell's government for political and (as Cromwellsaw it) essentially revolutionary activity. Lilburne demanded proceduralrights for which no precedent existed, such as the right to counsel (unavailablein cases of treason) and to see a copy of the indictment. He objectedto questions calling for self incrimination. In his various trials,Lilburne asserted a host of rights that later appeared in American bills ofrights: the rights to counsel, to public trial, to have a copy of the indictment,and against self-incrimination. Tried by judges he believed to bebent on his conviction, Lilburne insisted that his jury was the judge oflaw as well as fact. The jury in Lilburne's 1649 treason trial acquitted him,in spite of a hanging charge from the bench. In addition to purely legalclaims, Lilburne and other Leveller leaders appealed to natural rights.
The Levellers proposed that their written constitution should becomelaw by an agreement of the people, or at least the "well affected" part ofthem. As the Leveller leaders saw it, the people were the principal; Parliamentand, indeed, any officers of the government were merely theiragents. Levellers feared that the governmental agents might seek to increasetheir power at the expense of the people. To respond to what theysaw as the aggressive nature of power, the Leveller constitution, theAgreement of the People, protected basic liberties—freedom of religion,a right against self-incrimination, and a right to counsel, to jury trial,and against ex post facto laws. It decreed that government was withoutpower to infringe these enumerated liberties.
On the issue of freedom of religion, the Leveller Agreement of 1649provided: "[W]e do not impower or entrust our said representatives tocontinue in force or to make any Lawes, Oaths, or Covenants, wherebyto compell by penalties or otherwise any person to anything in or aboutmatters of faith, Religion or Gods worship or to restrain any person fromthe profession of his faith, or exercise of Religion according to hisConscience." Leveller William Walwyn made psychological argumentsagainst compulsion in religious matters. "[C]onscience being subjectonly to reason (either that which is indeed, or seems to him which hearsit to be so) can only be convinced ... thereby, force makes it runne backe,and struggle." Walwyn argued against forced worship on spiritualgrounds: compelling a person against conscience was compelling him orher "to doe that which is sinfull: for though the thing may be in it selfegood, yet if it doe not apeare to be so to my conscience, the practicethereof in me is sinful." Finally, as one Leveller pamphlet argued, therewas a sphere of a person's nature beyond the power of the state. Peopleowned themselves: "[A]ll just humaine powers are but betrusted, confer'dand conveyed by joint and common consent, for to every individuallin nature, is given an individuall propriety by nature, not to be invaded orusurped by any ... and by naturall birth, all men are equal and alike borneto like propriety and freedome." Some rights were beyond the power ofthe people to delegate to their government. The principal could not givehis agent powers the principal did not possess. So as to worship "compell,yee cannot justly; for ye have no Power from Us so to doe, nor couldyou have; for we could not conferre a Power that was not in our selves,there being none of us, that can without wilfull sinne binde ourselves toworship God after any other way, then what (to a tittle,) in our owne particularunderstandings, wee approve to be just."
The Levellers insisted that guarantees of liberty had to be general, toapply to all. Factions that denied liberty to others ultimately endangeredit for themselves. In this view they expressed a theme of equality of libertythat became a powerful tradition. As Walwyn wrote: "I wish youwould be but as carefull to preserve intirely, the due and formall courseof Law to every man, without exception, friend, or foe, as we have been:and though at present you may please your selves with the sufferings ofyour adversaries (as you fancy them) yet you therein but treat down yourown hedges, and pluck up that Bank that lets in the sea of will, andpower, overwhelming your own liberties." As John Lilburne put it,"[F]or what is done to any one, may be done to every one." Since all were"members of one body, that is, the English Commonwealth, one manshould not suffer wrongfully, but all should be sensible, and endeavorhis preservation; otherwise they give way to an inlet of the sea of will andpower, upon all their laws and liberties, which are the boundaries to keepout tyranny and oppression." The person who failed to assist in suchcases, Lilburne insisted, "betrays his own rights, and is over-run, and ofa free man made a slave when he thinks not of it ... and incurs the guiltof treachery to the present and future generations."
Government Control of the Press in the
Seventeenth and Eighteenth Centuries
The Levellers claimed and exercised a freedom to criticize government,but precedent was squarely against them. Initially and in the early seventeenthcentury, the crown had punished the crime of sedition or seditiouslibel in a special court—the Court of the Star Chamber. The jurywas no problem for government prosecutors because the Court of theStar Chamber operated without a jury. The court required defendants toanswer questions about their activities under oath; failure to answer wastreated as a confession. Though the Court of the Star Chamber wasswept away in the Civil War of the 1640s, seditious libel and many of itsrepressive legal rules survived in the common law courts. For critics,the doctrine of seditious libel was tainted by its origin in an oppressivecourt.
Even by the orthodox eighteenth-century view, freedom of the pressdid not limit seditious libel prosecutions, because of the doctrine thatfreedom of the press consisted only of freedom from prior restraint. Theclaim that "no prior restraint" is the full definition of free press willmake a number of appearances in the free speech stories that follow, aswill the claim for a broader role for the jury in free speech cases. So it isuseful to explain these ideas here before resuming the story of the Levellers.
Prior Restraint
In seventeenth-century England, the government required a licensefrom a government censor before a book, pamphlet, or newspaper waspublished. The censor's task was to make sure published books were acceptableto the government. Unacceptable books were denied a license.Publishing a book without a license was a crime, much as driving a carwithout a license is a crime today. Requiring a license was a "prior restraint."
The use of prior restraints gave government a powerful way of controllingthe press and thus suppressing dissent. To punish the crimeof publishing without a license, the government did not need to provethat the book, pamphlet, or newspaper was treasonous or seditious. Itneeded only to prove that the defendant had published the book and thathe lacked a license, just as a person may be punished for driving withouta license although her driving might otherwise be perfect.
Initially, this censorship system was enforced by the Stationers Company,which was given both a monopoly on printing and powers tosearch out law violators, seize presses, and arrest sellers of unlicensedbooks. The licensing system expired in 1694. By the time of the AmericanRevolution, the licensing system had long been defunct.
The Role of the Jury
The seventeenth-century device of prior restraint kept from the jury andin the hands of the government the larger question of whether the contentsof the book were unlawful—whether the book or newspaper wasone people should be permitted to read. A major theme in the early historyof free speech is the role of the jury, which ideally represented abody of lay people beyond government control.
The demise of the licensing requirement could increase the role andpower of the jury. The expansion of the jury's power was potentially verysignificant because the jury could refuse to follow the judge's instructions,and the judge typically represented the ruling hierarchy. In seditiouslibel cases, however, English law had another device to reduce theinfluence of the jury. This was the doctrine that in those cases (basicallycases of antigovernment speech), the only issue for the jury was whetherthe defendant had published the book. The question of whether the contentsof the book were unlawful was for the judge, appointed of courseby the government. (Until 1701 in England, and in the American coloniesuntil the Revolution, judges held their offices at the pleasure of the monarch,so a ruling that displeased the monarch and his or her ministersmight mean the imminent loss of a judge's job. After 1701 judges in Englandcould be removed only by a joint address of both Houses of Parliament,but in the colonies they continued to serve at the pleasure of thecrown.)
In several landmark cases of the trials of political dissenters, the defendantsargued that the jury was the judge of law as well as fact, whichmeant, at least, that the jury should decide if the defendant's conductwas criminal and if a book or newspaper was in fact treasonous or seditious.Lilburne made the argument for a broad role for the jury in his1649 treason case and in a later case where he was prosecuted for violatinga decree banishing him. In 1670, William Penn, founder of Pennsylvania,made the claim when he was prosecuted for holding a religiousmeeting in the street after the law forbade Quakers to meet in theirmeeting houses. In the 1680s, the "seven bishops" made the claim. Theyhad petitioned the king not to be compelled to read a royal decree annullingan act of Parliament from their pulpits, and, as a result, they werecharged with sedition. In each of these cases, juries acquitted, disobeyingcontrary instructions from the court.
By the eve of the American Revolution, the question of the scope ofthe jury's decision in cases of libel and seditious libel was hotly contested,with English judges divided on the issue. Lord Mansfield continuedto insist that the jury could only decide the issue of publication,while the judge should decide whether the publication was libelous. In acase involving an alleged newspaper libel on the king, Lord Mansfieldhad instructed the jury that it was to decide only publication, notwhether the article was libelous. The jury rebelled. As judge and legalscholar Thomas Cooley noted, "[T]he jury, dissatisfied with these instructions,and unwilling to make their verdict cover matters uponwhich they were not at liberty to exercise their judgement, returned averdict of `guilty of printing and publishing only.'" (It was a tactic similarto that initially used by the jury unwilling to convict William Penn.)Lord Mansfield considered the verdict inadequate and felt constrainedto order a new trial. Lord Camden and other English judges supported abroad role for the jury. Not until 1792, did Parliament provide that thejury in cases of criminal libel should give a general verdict and would nolonger be limited to the issue of publication. At that time Parliament announcedthe act was declaratory of what the law had always been.
The Levellers on Press Freedom
The royal machinery of censorship, including the Court of the StarChamber, was swept away in the early years of the English Civil War. In1649, confronted with broad unrest, Parliament ordered the military tostrictly enforce laws against unlicensed publications. The law providedfor the destruction of printing presses, whipping the peddler of unlicensedpamphlets, and forty days' imprisonment or a forty-shilling finefor the author.
The Levellers strenuously objected to Parliament's decision to reinstitutethe licensing system for books and pamphlets. In 1644, Leveller WilliamWalwyn called for full toleration of religious opinion but suggestedthat writing dangerous or scandalous to the state could be prohibited.By 1649, after their writing was branded scandalous or seditious, Levellersclaimed a broader scope for freedom of the press. Liberty of speechand of the press, they insisted, was essential to freedom. It allowed thepeople to exercise their sovereign power. "[F]or what may not be done tothat people who may not speak or write, but at the pleasure of Licensers?"Censorship, a Leveller pamphlet insisted, "hath ever ushered in atyrannie; mens mouth being to be kept from making noise, whilst theyare robd of their liberties." In the evil days of royal prerogative "uponpretense of care of the publike, Licensers were set over the Press, Truthwas suppressed," and the people were kept ignorant. Ignorant peoplewere "fitted only to serve the unjust ends of Tyrants and Oppressors."
While attacking the system of licensing books, a Leveller pamphlet arguedthat counterspeech was the answer to the danger of press abuse.Significantly, it did not suggest the alternative of subsequent punishment.
As for any prejudice to Government thereby, if Government be just in its Constitution, and equal in its distributions, it will be good, if not absolutely necessary for them, to hear all voices and judgments, which they can never do, but by giving freedom to the Press; and in case any abuse their authority by scandalous Pamphlets, they will never want able Advocates to vindicate their innocency. And therefore ... to refer all Books and Pamphlets to the judgment, discretion or affection of Licensers, or to put the least restraint upon the Press, seems altogether inconsistent with the good of the Commonwealth, and expressly opposite and dangerous to the liberties of the people.
The Levellers had a distinguished predecessor in their complaintsagainst Parliament's revival of the licensing system. In 1644 John Miltonwrote Areopagitica, his famous pamphlet against licensing. Milton didnot argue against prosecutions after publication. Indeed, unlike the Levellers,he suggested that possibility as one remedy for evil books, and heexempted "papists" from his plea for religious toleration. Still, many ofMilton's arguments—the partial and scattered nature of truth, the abilityof truth to win in a fair fight, clashing opinions as producing truth,the inferiority of "cloistered virtues," and his call for "liberty to know,to utter, and to argue freely according to conscience"—exceeded his limitedgoal of arguing against licensing.
In addition to attacking licensing, Levellers also invoked a limiteddefinition of treason. In his treason trial for harsh criticisms of Cromwelland the government, Lilburne insisted that mere words could notbe treasonous.
As a result of their agitation for fundamental change, Leveller leaderswere accused of a number of crimes, including sedition—lessening theaffection of the people for the government or inciting discontent againstgovernment—and treason. Labeling criticism of government as a crimebecause it caused discontent was in conflict with Levellers' ideas of popularsovereignty. So it is not surprising that the Levellers specifically criticizedthe crime of sedition.
In 1647 the Levellers had circulated an earlier version of their "Agreementof the People" in the army. When the army commanders suppressedLeveller agitation, the Levellers again petitioned Parliament forthe adoption of their Agreement. Parliament responded by imprisoningthe petitioners—Thomas Prince, a cheesemonger, and Samuel Chidley,a printer who served as treasurer for the Levellers. They were alleged tobe guilty of "seditious and contemptuous avowing and prosecuting of aformer Petition ... stiled an agreement of the people, formerly adjudgedby this house, to be destructive to the being of Parliaments." The Levellersstrenuously objected to treating a petition as seditious, and they deniedthat sedition was a crime: "for no man knows what is sedition."
As their complaint about the crime of sedition shows, it is quite unlikelythat the Leveller view of freedom of the press merely allowed thecitizen the right to publish without a license but then gave the statebroad power to punish after publication. Proponents of fundamentalchange who were being imprisoned for critical writing needed a broaderprotection than that. But, of course, modern ideas of press freedom werenot fully developed in the seventeenth century. Although Levellers demandedfreedom of press and petition in their pamphlets, they failedfully to elaborate these rights or to include these freedoms in theirAgreement of the People.
The Levellers' Agreement
The rights that were enshrined in the Levellers' Agreement would beprotected from later parliaments because the Agreement, unlike anact of Parliament, was to be "unalterable." Furthermore, the Levellerswarned, later parliaments might be "corrupted; and besides Parliamentsare to receive the extent of their power and trust from those that betrustthem; and therefore the people are to declare what their power and trustis, which is the intent of this Agreement." This was a very early use ofthe argument that a constitution that came from the people was a supremeauthority that could limit the legislature and all aspects of government.
Although Leveller leaders like Lilburne saw the Parliament as representingthe people, still they considered Parliament clearly distinct fromthe people. So it was appropriate to organize the people to assert theirinterests to Parliament, by petitions and in other ways. Defenders of parliamentaryprerogative, on the other hand, saw Parliament as the embodimentof the people, not as their representative. Petition and othercampaigns that were directed not simply at informing Parliament but atorganizing popular will were improper because they appealed to a centerof power beyond Parliament. There was a wide gap between ideas ofpopular and parliamentary sovereignty.
(Continues...)
Copyright © 2000 Michael Kent Curtis. All rights reserved.
