Popular Constitutionalism in Philadelphia: How Freedom of the Press Was Won

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POPULAR CONSTITUTIONALISM IN PHILADELPHIA: How Freedom of Expression Was Secured by Two Fearless Newspaper Editors Author(s): JEFFREY L. PASLEY Source: Pennsylvania Legacies, Vol. 8, No. 1 (MAY 2008), pp. 6-11Published by: The Historical Society of PennsylvaniaStable URL: http://www.jstor.org/stable/27765126Accessed: 15-05-2015 20:51 UTC

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6 Pennsylvania Legacies may 2008



CONSTITUTIONALISM IN PHILADELPHIA ^

freedom of Expression

Secured by

Two fearless

D^ewspaper Editors

BY JEFFREY L. PASLEY

- II

X f n the early days of the American republic, the

I Constitution was a do-it-yourself project. Americans I believed that keeping government within its constitu I tional limits was a duty that fell ultimately upon the I people themselves; almost no one thought courts I would be the sole means of enforcing the rules. If

^ the elected representatives proved unfaithful, it was

up to the people to defend their own rights, with their votes, their voices, and, if necessary, their bodies. Thus the early batdes for freedom of speech and especially the press were not won

by lawyers in court but through the actions of real people. Two remarkable Philadelphia editors and their newspaper,

the Aurora General Advertiser, were key figures in these bat tles. Benjamin Franklin Bache, his namesake s favorite grand son, founded the newspaper in 1790. Bache spent much of his childhood in France while Franklin was American minister there during the Revolution. His ardent Francophilia led the

Aurora to bitterly oppose the Washington administrations

increasingly British-tilted foreign policy and to support the Democratic Republican opposition figureheaded by Thomas

Jefferson and James Madison. William Duane, Bache s assistant and successor, arrived in

America after twice fleeing British persecution. An Irish

printer, Duane emigrated to India and started a successful

newspaper there, only to be summarily expelled and stripped of his property for mild criticisms of the British East India

Company. Finding work in the London printing trade, Duane was swept up in the working-class political-reform movement that formed in response to the French Revolution. He had to flee Britain when war with the French Republic broke out and the authorities cracked down on political dissent.

Arriving in Philadelphia, Americas political and publishing center, Duane naturally sided with the anti-British Republicans. The truculent duo of Bache and Duane produced a radical

newspaper of unusual authority and almost boundless tenacity. The Aurora deserves much of the credit for establishing the new nations most basic understanding of press freedom, namely that the Constitution prohibits the federal government from

using the law to silence its political critics in the press. Pennsylvania and the other 12 original states created the

_ !

may 2008 Pennsylvania Legacies 7



^^^^ j^jj_ George Washington, John Adams, Alexander Hamilton, Thomas Jefferson, and James Madison. Washington, Adams, and Jefferson

after portraits by Gilbert Stuart. Society Portrait Collection.

worlds first written constitutions at the beginning of American Revolution. While the early state constitutions were all about protecting rights from government, the major pur pose of the 1787 federal Constitution was to create a stronger government. This goal led to a different, much less limiting form of constitutionalism. Omitting the customary bill of

rights, the framers also inserted clauses designed to guarantee that the new federal government would have any powers it deemed "necessary and proper" to execute its duties.

Almost immediately, however, those who wanted limits more clearly marked out challenged this new form of constitu tionalism. Facing an outcry against the lack of a bill of rights, supporters of the federal Constitution promised that they

would add explicit protections for free expression and many other rights as soon as the new federal government took office. This promise was fulfilled but the amendments were framed

very narrowly: Congress shall make no law... abridg ing the freedom of speech, or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress of

grievances." During the 1790s this approach allowed President Washington and the man who acted as his

prime minister, Alexander

Hamilton, to set a series of

precedents as to how the new

regime would actually oper ate, including the use of the

"necessary and proper" clause

to skate over seeming consti

tutional limitations on its

ability to implement broad new

policies.

Still, no one in the early federal government would have considered action against the press if not for the rise of the divisions that eventually produced an opposition polit ical party. This was a most unwelcome occurrence for all

the founders, but especially

for conservatives like Washington and John Adams who feared that their young republic would never survive the stresses of an internal conflict. The divisions that first surfaced in Congress and the cabinet spread to the press when Jefferson and

Madison, believing that newspapers had been crucial to the success of the American Revolution, arranged for the short lived National Gazette to be the oppositions public voice. With the demise of the National Gazette, Benjamin Franklin

Baches paper stepped in to fill the gap, defending the French Revolution and condemning the policies of the Washington administration, which Bache considered as tantamount to a

new, elective monarchy. The Aurora championed the emergence of the political debating clubs known as democratic republican societies, and Bache was a leader of the Philadelphia chapter.

The Aurora served as the main vehicle for publicizing these clubs'

meetings, statements, and their members' campaigns for political

Design for Franklin's Works showing hand press; the Aurora; the

Latin motto describing Benjamin Franklin attributed to French finance minister Turgot, "He seized lightning from the heavens and

the scepter from tyrants"; and an inscription by William Duane.

office. The Federalists regarded the clubs as completely illegit imate, the probable beginnings of a revolutionary conspiracy.

The Aurora soon attracted a small network of like-minded

Republican newspapers in

Boston, New York, and other

major towns. Meanwhile,

journalistic reinforcements

began to arrive in the form of

refugee radicals from Great

Britain, including William Duane. With their help, the

opposition press came into its own during the 1795-96

controversy over the Jay Treaty, widely regarded as a

gross capitulation to the British. Though the Senate met in secret session to ratify the treaty, Bache obtained its

contents, printed thousands of copies, and personally dis tributed them in New York and Boston while a fellow democratic republican society member headed south. Massive

political rallies erupted as Bache made his major stops.

8 Pennsylvania Legacies may 2008



"Congress shall make no law . . . abridging

the freedom of speech\ or

of the press; or the right

of the people peaceably to assemble, and to petition the Government for

a redress ofgrievances. "

As it became apparent that this initial public pressure would fail to stop the treaty, Bache and his circle of Philadelphia rad icals launched an all-out assault on Washington's reputation that made the thin-skinned president's last months in office

miserable. These attacks reinforced his decision not to stand for a third term in 1796. The Republicans mounted a strong challenge to Vice President John Adams in that years election but fell just short of winning the office for Thomas Jefferson. At the same time, fear and anger toward the opposition and the increasingly belligerent French galvanized the Federalists,

who mobilized the merchant community and won the largest congressional majority they would ever enjoy When the French began attacking American ships and insulted American diplomats in 1797, the Federalists were ready for war. The first target they trained their sights on was the

enemy within, in the form of the opposition press. The

Philadelphia Aurora was Enemy #1. If possible, the Federalists had an even higher estimation of

the power of the press than the Democratic Republicans. "Give to any set of men the command of the press, and you give them command of the country," complained Pennsylvania's Judge Alexander Addison. Thus the press was far too dangerous to leave in the hands of unprincipled foreigners and dangerous incendiaries like Bache and Duane. There was raw politics in this determination, a desire to shut down their critics, but also raw fear. The bloody "spirit of jacobinism" had acquired "a

more, gigantic body" and was "armed with more powerful weapons than it ever before possessed," Alexander Hamilton wrote in 1797. The opposition press was worse than "the three great scourges of mankind, WAR PESTILENCE and FAMINE" and threatened "the political and moral world with a complete overthrow."

II ?TECTION br

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<?a?Bvo^?tF?iif? This ft?&waty otfewtad, not "Iflf ,tjh? Eavojrc, tot for

of America, fr? ?fe. t tbetn, th*t Franc?

^itir rfwor along

S cert ificat* wm

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orfooii

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"The Detection of Bache: or French Diplomatic Skill Developed," 1798 (above), recounting how the government believed Bache obtained a letter from French

diplomatic minister Talleyrand. William Duane's first American publication (left), under the pseudonym of Jasper Dwight, A Letter to George Washington, President of the United States... (Philadelphia, 1796).

may 2008 Pennsylvania Legacies 9



Long before any Supreme Court decision, the Aurora cited the "Congress shall make no law

stipulation of the First Amendment as obviously

barring something like the Sedition Act.

Such was the mood when the Federalist Congress enacted the Alien and Sedition Acts in 1798. The Alien Acts made it easier for the president to deport noncitizens he deemed

threats, like the refugee radicals, and lengthened the delay for

immigrants seeking citizenship. The Sedition Act made crit icism of the government a criminal offense, imposing penalties of up to $2,000 and two years in prison on anyone who should "write, print, utter, publish . . . any false, scandalous and malicious writing . . . against the government of the United States . . . with intent to defame the said government

... or to bring them . . . into contempt or

disrepute; or to

excite against them the hatred of the good people of the United States." Of course, it was almost impossible to engage in the normal activities of a democratic opposition without

trying to bring those in power into some degree of public "contempt

or disrepute."

Long before any Supreme Court decision, the Aurora cited the "Congress shall make no law" stipulation of the First

Amendment as obviously barring something like the Sedition Act. Bache, Duane, and their editorial allies had few illusions about what it would take to overturn the law. The courts

would be little help. Instead, the opposition would have to stand and fight in the arena of public debate and, eventually, at the ballot box. Without such active citizenship "no Constitution however excellent, ever yet secured, or ever will secure the interest of the governed against those who govern," a widely republished item asserted. Continued political criti cism and organization against men in power was the only thing that could stop repressive, unconstitutional measures: "If

through the fear of incurring the pain and penalties of this same sedition bill, individuals are deterred from animadverting on the conduct of those employed in public affairs, then farewell to Liberty." Luckily, Benjamin Franklin Bache and

William Duane were far from deterred. The Federalists failed to shut down the opposition press, but

not for lack of trying. Both Aurora editors and most of the other major Republican journalists were prosecuted under the new laws, but the harassments went far beyond the Sedition Act. In May 1798, mobs twice attacked the Aurora office, which was also the Bache family home, and physically assaulted the editor on two other occasions. The legal harassment of the

Aurora actually began before the Sedition Act was even law. When Bache published a copy of a conciliatory diplomatic letter from the French foreign minister, the Adams administration

made, but failed to prove, charges of "treasonable correspon dence." It then had the editor arrested for seditious libel, without

benefit of a statute, for remarks he had made in the Aurora

defending himself against the treason accusation. Far from

quieting Bache, these tactics resulted in a long summer of invective and detailed accounts of the proceedings against the

editor, summed up in a pamphlet called Truth Will Out! Bache was out on bail and awaiting trial when he died of yellow fever in the September 1798 epidemic. His successor, William Duane, who relaunched the Aurora in

November 1798, endured an even more epic struggle with the authorities. In February 1799, Duane and three other Irishmen were charged with "seditious riot" for trying to collect signatures

Truth Will Out! The Foul Charges of the Tories against the Editor

of the Aurora Repelled by Positive Proof and Plain Truth and His Base Calumniators Put to Shame (Philadelphia, 1798), preface

For some time past the Editor of the Aurora has

experienced persecution in almost every shape. A free

press is a most formidable engine to tyrants of every description; and when it was determined to enlist this country on the side of despotism and then to pass alien, treason and sedition bills, that have not a parallel even in the British code, it was neces

sary to put down the press. Combinations were first tried

to deprive the Editor of sup port; but independence enough was found in the Public to baf fle the attempt; and tho' by this

means the establishment of the Aurora has not been as lucrative as it might have been, it has been sufficiently so to support itself and its editor. The friends of order next tried

assassination. The cowardly, pre meditated and unprovoked attack on him on board the frigate, in which his life was put in jeopardy, also failed of success. The cham

pion of the faction, on this occa

sion, was prosecuted

to convic

tion; but his fine was paid for

him; and he has since been sent

by the Federal Executive in a

public capacity to France, tho' still under the operation of the sen tence pronounced against him, by a State Tribunal; according to which he was bound over to keep the peace for a certain term.

For asserting the freedom of his press against the arbitrary mandate of the Speaker of the

House, the Editor next was, by the Speaker, removed from the floor of the House, and thus pre vented from furnishing his paper with a sketch of the debates. This act of tyranny might have had a double effect: To injure his press and to prevent a free and firm statement of the proceedings from meeting the public eye.

To enumerate the many sub

ordinate attempts to ruin the

Editor, or to awe him into a base dereliction of his duty would not come within the

-ii

IO Pennsylvania Legacies may 2008



on a memorial against the Alien Acts. Acquitted after a circus like trial, Duane was immediately indicted for seditious libel for insinuations that British secret service money had influenced

American politics,. Unfortunately for the prosecutors, the Aurora had obtained an old letter making the very same charge from the pen of none other than John Adams. Secretary of State

Timothy Pickering then had Duane indicted for criticizing the

newly expanded federal military forces. Later the U.S. Senate held the editor in contempt for publishing a leaked bill and forced him into hiding for a time. The Auroras complaints about the troops brought on. the

most horrific attack on freedom of expression during this whole period. On May 15,1799, Philadelphia soldiers irritated

by Duane's comments on their expedition against the so-called Fries Rebellion in Northampton County, entered the Aurora office with revenge on their minds. After punching Duane in the mouth when he attempted to ignore them, they held back his family and staff and dragged the editor into the street. There the soldiers formed a circle and took turns striking Duane, who got back to his feet after each blow until stunned

by one to the back of his head. Once Duane was helpless, they flogged him for good measure. Injured but not intimidated, the editor rewarded his attackers with a long article recounting the

incident in the next day s Aurora.

Progressively bad publicity was the typical result of Federalist persecutions against the Aurora^ effectively turning the suppression efforts back against those they meant to pro tect. In fact, during the election of 1800 there were many more Democratic Republican newspapers than there had been before the Sedition Act, and the Aurora had grown even more influential. Through all its travails, except during the two months following Bache's death, the paper maintained its

steady barrage against the Federalists. The Republican press was the crucial element in the defeat of John Adams that vin dicated the constitutional protection of press freedom. This verdict was rendered by the electoral system and the court of

public opinion, rather than by a court of law. Thanks to the

tenacity of a couple of Philadelphia newspaper editors, Federalist repression of the press had completely backfired, and the federal government would never try anything on a similar scale again.

Jeff Pasley is a professor of history at the University of Missouri-Columbia and the author ofThe Tyranny of Printers": Newspaper Politics in the Early American

Republic (2001).

object of these few pages. The attack of a loyal mob upon his house on the 7th of May last should not, however, be passed in total silence. This was, how

ever, of all others the mo?t unfortunate for the abettors of it: It served only to convince the Editor of Ae number and spirit of his friends; who shewed

themselves, in consequence of that outrage, determined, if vio lence was offered to his person or property, to assist him in

repelling force by force.

Finding, so far, that ?ombina

rions, threats and persecutions had-m tflect in ?>vmg or intim

idating the EdRtoar, it was next

attempted* since his exertions in the cause of republicanism and truth could not be paralyzed, to

destroy their effect, by rendering his character infamous in the

eyes of the People. The tools of the faction connected with the

administration, and their crea tures enjoying legislative powers and prerogatives* for this pur pose, denounced the Editor as an agent of the French and paid by ?t?$xi.?!Jh?':wn? presses of the faction, of course echoed the

charge. It was expected,

W/?? that the Public mind Height be warped by the

gp? boldness and solemnity

ffU of the accusation, if it

iff appeared supported by the slightest colourable cir

g|| cumstance, and that the 1 Editor, from the difficulty / of proving a negative, would

M not be able to exculpate S himself; especially as the

I proof of his innocence was I to be withheld. But in this ? attempt also the faction have ' been completely foiled. The

Editor dared his cdurnaiators to the proof, exposedthek: inconsis tent and contrary stories; proved his innocence and has held them up in the light they merited,?as false and malicious

detractors, and as the vile inter

ceptors of private correspon dence,?for which they may possibly yet be prosecuted.

The Editor has found it out of his power to make truth, in this transaction* pierce thro' the

misrepresentation. of bitter

enmity and the prejudices of

party malice. Many presses pub lished with avidity the charges against the Editor and have been dilatory or have altogether refused, to publish the vindica tion.?Thousands of handbills

have, besides* been scattered to

injure him with those who do not read his paper;?it Was of course necessary to take this method of c?fiusing the anti dote. The attention of the reader is respectfully called to the fol

lowing pages. It will be seen, that the accusation, in the various

shapes it assumed, is given as well as the vindication,?a proof that truth and justice are the

objects of this publication. On the very day this dark

conspiracy against the character of the Editor was fully unveiled, and charges against his calum niators of a deep die, supported by proof, were produced,?a prosecution was instituted

against him for a libel on the President On the merits of this it would be improper to say a

word. The Editor has not a

doubt, that it will furnish him with another cause of triumph; even if he is obliged to submit to the assumed jurisdiction of the Federal Court, and be tried

by a Jury summoned by an offi

cer, appointed by the party that received the alledged injury. Much hope is, however,

entertained, that the Liberty of the Press will not be suffered to remain upon that basis; but that the State Courts will assert their exclusive jurisdiction in the case; and that those of the Federal

government will not contend for

ground not warranted by the

Constitution, and even discoun tenanced by an able opinion delivered by one of the presiding Federal Circuit Judges.



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Popular Constitutionalism in Philadelphia: How Freedom of the Press Was Won