Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech

Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech

by Stephen D. Solomon

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ISBN-13: 9781250185372
Publisher: St. Martin's Press
Publication date: 04/26/2016
Pages: 368
Sales rank: 889,398
Product dimensions: 5.90(w) x 8.90(h) x 1.10(d)

About the Author

STEPHEN D. SOLOMON is an associate professor at the Arthur L. Carter Journalism Institute at New York University. A graduate of Georgetown University Law Center, he teaches First Amendment law to graduate and undergraduate students. He has written for numerous national publications including The New York Times Magazine, Fortune, and The New Republic, and has been recognized with the Gerald Loeb Award and the Hillman Prize. His last book, Ellery's Protest, told the story of the Supreme Court's controversial decision forbidding state-sponsored prayer and Bible reading in public schools.

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Revolutionary Dissent

How the Founding Generation Created the Freedom of Speech


By Stephen D. Solomon

St. Martin's Press

Copyright © 2016 Stephen D. Solomon
All rights reserved.
ISBN: 978-1-4668-7939-3



CHAPTER 1

THE MINISTER


John Wise arrived in the evening, along with other prominent citizens of Ipswich, Massachusetts. The town clerk, John Appleton Jr., had volunteered his house for the crowded meeting, which he knew was best completed before the long light of the summer day ebbed from the room, leaving only oil lamps to break the darkness. A few selectmen were there, as was the lieutenant of the town's militia, several other militia officers, and a couple of church and town officials. It was Wise, however, minister of one of the local Puritan churches, to whom everyone looked for direction. The date was August 22, 1687, and the town, located north of Boston, was gathering its strength to oppose the imposition of taxes by the British royal governor. None of these men, of course, would be alive nearly eight decades later, when the colonies would erupt in protest against another tax, the hated Stamp Act, and start down the road to independence.

As the meeting began, the constable of Ipswich read the tax act and the related instructions. A heated discussion ensued, with Wise denying its legality because Governor Edmund Andros had imposed it unilaterally without action by a general assembly that was representative of the people. The group strongly agreed with Wise that the tax violated their rights as Englishmen, and then planned the town meeting that was to follow.

The citizens of Ipswich gathered on the next day to debate the tax. Although a number of people spoke, once again Wise took the lead. As he later recalled, he argued that the people "had a good God and a good King, and should do well to stand by our privileges." After the citizens agreed to oppose the tax, the town clerk, Appleton, left the meeting and quickly drafted a note setting out the sentiments of the citizens. The new tax law, his draft of the note said, violated their freedom as English subjects by levying taxes without "consent of an assembly chosen by the freeholders." The meeting unanimously approved the defiant message. The town sent the note along to Andros and his General Council. Other communities, including Andover and Haverhill, also refused to cooperate.

A tax revolt was under way.


Wise had emerged from humble origins. His father had been an indentured servant to a prominent deacon in Puritan society and had been given a heifer when he received his freedom around 1641. He married the same year, and then through a series of jobs made the long climb to respectable society. His son John, born in 1652, the fifth of approximately thirteen children, entered Harvard College at the age of seventeen. Since Harvard had been started some decades earlier with a mission of educating clergy to serve congregations in the colonies, it was not surprising that Wise accepted a ministry at a church in Branford, Connecticut, after his graduation in 1673. Wise was a young man of considerable intellect, but the first thing people noticed about him was his imposing physical presence — tall, broad, and strong. In fact, Wise was reputed to be one of the best wrestlers for hundreds of miles around. Challenged by another man who traveled the twenty miles from Andover for a bout, Wise put him on his back and claimed victory within a few minutes.

Wise looked forward to returning to the Boston area. Residents of the Chebacco section of Ipswich, south of the town center, were weary of traveling the six or seven miles to church in bitter winter weather, so they started a new church and then called on Wise to take the pulpit in 1683. Ipswich was of modest size, with a population of about fourteen hundred people. Like many towns in the colony, it had expansive fields planted with corn, wheat, barley, and hay, and there was a smattering of grist mills and saw mills. But the town hugged the coastline as well, and so some residents put up wharves and others earned a living fishing. The most successful of them built timber-framed clapboard houses with steep hipped or gambrel roofs. Many residents enjoyed properties of at least a few acres and often much more.

As Wise was just establishing his leadership in his new church and community, big changes and even bigger troubles were gathering over the Massachusetts Bay Colony. In London, the Royal Charter that had provided for the political governance of the colony was revoked in 1684. In its place came a new system destined to aggravate citizens who were used to running much of their own affairs.

To centralize control under the Crown, James II established the Dominion of New England in 1686, unifying the Massachusetts Bay Colony with several other New England colonies. The Crown sent Edmund Andros to govern the new dominion, at the same time stripping residents of their right to local representation in an assembly. Instead, the governor would rule along with an appointed council. Andros and the council immediately tried to impose taxes without the consent of a representative body.

Each town had to appoint its own commissioner to assure local compliance with the law. It was the refusal of Ipswich, led by its local minister John Wise, to appoint a commissioner that brought the first serious tax troubles to the colonies.


Wise surely knew that speaking out against the governor and his council, whether on tax policy or on anything else, was a crime in colonial New England and indeed throughout the colonies. In fact, just nine years before the tax revolt that Wise sparked in Ipswich, a man had been prosecuted in Connecticut for complaining about taxes. After asserting that officials in New London County "sit here to pick men's pockets" — a sentiment shared widely by grudging citizens from the dawn of tax collection — he went before the Connecticut General Court and drew a fine of five pounds for his impertinence. And the Maine Court of Sessions fined another man in 1685 for what the judges regarded as an insolent response to a tax collector who came to his door.

There were no newspapers in Wise's time to publish accounts of trials in Massachusetts and other colonies, but the legal restrictions on speech were clear enough to everyone. The colonies had inherited from England the crime of seditious libel, whose crosshairs brought into easy range any person who spoke out against the government, any of its officers, or public policy in general. These restrictions came from both English common law — the accumulation of legal decisions over long periods of time — and from statutes enacted in the colonies.

One historian who studied colonial court records found 1,244 seditious speech cases before 1700 alone. Seditious speech against high officials, including governors and magistrates, was illegal across all the colonies and made up the majority of cases. Maryland, for example, deemed it a crime to engage in "scandalous or contemptuous words or writings to the dishonor of the Lord Proprietary or his Lieutenant General [Governor] for the time being or any of the Council." Pennsylvania made it a criminal offense for anyone to "speak slightingly or carry themselves abusively against any magistrate or person in office." Criticism did not have to be directed against a specific official, though. Many prosecutions were launched against people who criticized the government generally, including criticisms of its laws and its courts, rather than an individual. In Plymouth Colony, for example, a law in 1659 prohibited anyone who would "speak contemptuously of the laws" — including, presumably, against that law as well. And the legal code in Rhode Island punished people with fines, whippings, and imprisonment for merely speaking badly of any acts of the assembly.

In colonial America, the government had several venues for punishing its critics. One, of course, was the court system. But without strict separation of powers to limit their authority, the other branches of the government could take action as well. Royal governors and their councils had quasi-legal powers and could punish dissidents. So, too, could the provincial assemblies, acting alone or with the executive branch. The assemblies were the most effective at this task, since they acted directly themselves without the need for a grand jury or petit jury — and, conveniently, sat in judgment of those who had offended them. With any criticism of an assembly or its members, or any challenge to its authority, the legislators could summon the speaker or writer before them to answer for a breach of privilege. They could interrogate and threaten, and finally bring down the bludgeon of criminal sanctions.

With no regular newspapers published in seventeenth-century America, most seditious libel cases involved spoken rather than printed words. As a result, prosecutions relied on citizens who complained about words they had heard almost anywhere — on the streets, in taverns, and other public places. And because no means of recording existed, prosecutions for seditious speech depended on testimony from people relying on recall from fallible memory. Defendants were vulnerable to witnesses who exaggerated either innocently or because they wanted to settle a score. Beyond those problems, libel was such an elastic concept that virtually any kind of complaint of unfairness or incompetence could bring on a prosecution. People risked prosecution when they lost patience and merely belittled an official. In New Hampshire, Seabank Hog was dragged to court for saying that the governor and other officials were "a parcel of pitiful beggarly curs." Whether the governor was a cur was a matter on which reasonable people could disagree. But those who thought it so had to be judicious in sharing their opinion.

Many cases went beyond insults and involved serious disagreement with an official's work. In Virginia in 1653, Abraham Read was so unhappy with the governor that Read said he "would be called home into England and there they would deal well enough with him." That mild criticism cost him a fine of ten thousand pounds of tobacco.

Conviction for these speech crimes against the government exposed defendants to the possibility of physical punishment. Most convictions brought fines and imprisonment, but authorities could also inflict much worse penalty if they wanted to make a larger point to the community at large. Some colonists suffered the discomfort and humiliation of confinement in the stocks, where they were exposed to the scorn of passersby who might pelt them with garbage and excrement. But that was nothing compared to what was euphemistically called "bodily correction." Most often that meant public whippings, which courts and assemblies handed out by specifying the number of lashings and sometimes also indicating the severity with which the strokes should be administered. After he criticized the Maryland legislature in 1666 as a "turdy shitten assembly," the offended lawmakers sentenced Edward Erbery to be tied to an apple tree and lashed thirty-nine times on his bare back. Some punishment for seditious libel was worse still. Courts sometimes ordered that a defendant's ears be cropped or cut off entirely. Richard Barnes suffered even more. For his "base and detracting speeches concerning the governor" of Virginia in 1625, Barnes had his arms broken and then had to run a gauntlet of men beating him with their rifles. Concluding that they hadn't yet made their point, the authorities pierced his tongue with an awl.

Massachusetts, the home of John Wise, had plenty of cases, too. The colony passed laws during the seventeenth century punishing anyone who criticized officials or the government. Philip Radcliff denounced both the church and secular authorities at Salem in 1631, for which he was fined forty pounds and whipped. The authorities cut off both his ears and banished him from the area. In 1634, John Lee insulted Governor John Winthrop by declaring that "he was but a lawyer's clerk" and doubting "what understanding had he more than himself." That comment could not be tolerated, so the court sentenced him to a whipping and a fine. Peter Bussaker criticized some Massachusetts magistrates in 1636 and paid for it with twenty lashings to be "sharply inflicted." And in Ipswich County Court in 1659 — 60, Henry Bennett insulted the judges after losing a lawsuit against another man, and was fined five pounds for his words.


For John Wise, having spoken out against taxes, it could not have been a big surprise when the warrant came for his arrest. Towns in the Bay Colony were reaching different conclusions about whether to comply with the tax. Boston, which would become the heart of colonial protest against the taxes imposed by the Stamp Act in 1765, decided to submit to the Andros tax. Some of the satellite towns around Boston rebelled. The town of Taunton refused to appoint a commissioner to collect the tax, and on August 31 the town clerk went before Andros and the council to answer for the "scandalous, factious and seditious writeing" that conveyed the town's refusal to comply. A judge was suspended from office for attending the Taunton town meeting and not acting to prevent the tax rebellion, and several constables were held for prosecution.

Wise and other prominent citizens of Ipswich had also criticized the tax policy of Governor Andros and his council, and now the offended officials brought the law down against them. They seized the town records for detailed evidence of what had taken place during the Ipswich meetings of August 22 and 23, and they called Wise and others to appear for questioning before the council. After the council examined them, Wise and five other ringleaders — including John Appleton, at whose home the evening meeting of August 22 took place — were arrested and sent off to jail to await trial.

Wise, according to the charge, did "maliciously and seditiously say, publish and declare" that the tax "was not legal and to obey and comply with the same were to lose the liberty of freeborn English men." Hauled before the court, Wise and the other five defendants faced several hostile judges, one of whom was Joseph Dudley, who had actually ruled Massachusetts for a short time before Andros arrived as governor. Dudley was hardly a dispassionate judge. Far from that — as a member of Governor Andros's appointed council, Dudley served as a key part of the government that had imposed the tax opposed by Wise and the other five defendants. For Wise, there was no chance of getting a fair trial.

When the trial arrived on October 3, the defendants entered a plea of not guilty. Wise argued that the taxes were illegal under the Magna Carta and the laws of England that protected personal property. To that one of the judges, probably Dudley, replied, "Mr. Wise, you have no more privileges left you, than not to be sold for slaves." After the evidence was taken, Dudley gave his instructions to the twelve members of the jury, saying that he expected a "good verdict," considering that the charge "hath been so sufficiently provided." As Dudley had directed them to do, the jury returned a verdict of guilty. Wise and the five others were sent to prison for twenty-one days to await sentencing. When they returned to court, the judges imposed harsh sentences. Wise, for his part, had to pay a fine of fifty pounds plus court costs and produce a bond of one thousand pounds for a year to guarantee his good behavior. The judges also suspended him from the ministry. The other defendants received similar punishment, with a ban on holding any public office. Wise was permitted to return to his ministry about a month later, the same day that the town of Ipswich complied with the law by turning over the tax revenue that had instigated the protest.

As it turned out, the Andros government would not last long. Back in England, the Glorious Revolution of 1688 deposed James II, and Boston in turn rose up in 1689 in a kind of bloodless coup to rid itself of Andros and his cronies. With his administration at an end, Andros took shelter in a fort but was taken into custody and then sent back to England. A few years later, the town of Ipswich reimbursed Wise and the other five defendants for the fines and expenses that they had incurred in their prosecution.

With the tax issue finally resolved, and his foe, Governor Andros, thoroughly discredited, Wise now enjoyed the widespread respect that came with having taken on a perceived tyrant at the peak of his power. The following year, Wise served as chaplain in the colony's failed military expedition to take Quebec, held by the French. And he intervened personally in the witch trials taking place in nearby Salem in 1692. John Proctor, who for many years had owned a tavern and land in Ipswich, was well known there, and he and his pregnant wife stood accused of witchcraft along with many others. Aghast at the madness, Wise wrote a petition by hand — which was also signed by thirty-one of his Ipswich neighbors — that he sent to the court in an attempt to free Proctor and his wife. John Proctor was hanged, but Wise's intervention in the witchcraft trials enhanced his reputation for a steely temperament and a determination to challenge authority that he judged to be overbearing.

At its core, John Wise's defiance of Andros's tax policy was about the power of individual citizens to govern their own affairs, rejecting autocratic rule from the top in favor of democratic consent. Wise had intervened in the political affairs in Massachusetts, but he was first a man of God. When he once again played a leading role on the public stage, it was by immersing himself in the ecclesiastical conflicts that roiled the New England churches in the early years of the new century. Though it involved church affairs, the principle for Wise was the same — the right of individuals to govern themselves, now played out in the right of the individual churches to run their own affairs free of control from church elders.

The Puritan churches throughout New England had governed themselves independently for many years. But the religious atmosphere in New England was changing. As the first generation of Puritans died away, so too did much of the religious fervor and the strict devotion to orthodoxy. The power of the church began to erode as a result, and some in the ministry moved to consolidate their authority as the best way to combat loss of faith. They tried to centralize supervisory control over the local churches, a plan that Wise opposed because his and other congregations would lose their right to self-rule.


(Continues...)

Excerpted from Revolutionary Dissent by Stephen D. Solomon. Copyright © 2016 Stephen D. Solomon. Excerpted by permission of St. Martin's Press.
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Table of Contents

Acknowledgments

Prologue: The Chief Justice

1. The Minister

2. The Advocate

3. The Editors

4. The Shoemaker

5. The Merchant

6. The Silversmith

7. The Farmer

8. The Planter

9. The Framer

Afterword

Notes

Index

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