ROGER P. MELLEN

John Wilkes and the Constitutional Right to a Free Press in the United States John Wilkes was a radical British politician who was extremely popular with many American revolutionaries and provided an powerful example of why liberty of the press was so critical. Wilkes was arrested, thrown out of Parliament, put into prison, and accused of treason and seditious libel. His legal travails, his publications, and his every movement were covered with great interest by the colonial newspapers. While a blasphemous and pornographic publication eventually tarnished his reputation, he was nonetheless an important force behind many American constitutional protections. This article explores a connection not previously developed— how John Wilkes was a key inspiration for the first-ever constitutional protection for a free press. The conclusion here is that Wilkes should be remembered for his crucial influence upon the American ideal of press freedom; his battle against seditious libel charges was a notable precedent for attitudes against control of the media on this side of the Atlantic.

nglishman John Wilkes was widely admired in the American constant indebtedness, his licentiousness, and his eventual rejection colonies as a political journalist, a radical politician, and a by his radical followers has left his image badly tarnished and his fighter for liberty. He greatly influenced the revolutionaries contributions largely ignored. Despite his downfall, Wilkes was Ewho fought for American independence, but modern historians of critically important to the development of freedom of the press as America have by and large ignored the essential role that Wilkes a constitutional right in the United States. Our enjoyment of this played in establishing the right to freedom of the press.1 Wilkes essential freedom owes much to this nearly forgotten radical British published stinging criticism of the British ministry in the infamous politician. issue no. 45 of his newspaper, The North Briton, and was accused John Wilkes and his disputes with the British authorities of seditious libel, thrown out of Parliament, and made an exile over press freedom had a greater influence on the American First from his homeland. His battles with an oppressive government Amendment than has been previously acknowledged. There are received constant attention in the colonial American newspapers. many theories about the origins of this important constitutional His arrest was noted critically in many papers, including this one protection: Leonard Levy’s premise was that American press in the Boston Post-Boy of June 1763: “The Hand of Authority being freedoms emerged directly from the British legal tradition and lifted up in order to fall heavily on such Political Writers as may did not include freedom from seditious libel prosecution.3 Other displease.”2 While he was the political darling of the London radical theorists argued that colonial legal developments (especially the lower classes and the colonial press paid him lavish attention, his celebrated John Peter Zenger case) were the impetus for a more extensive liberty of the press. Still other historians explored ROGER P. MELLEN, Ph.D., is an associate how Enlightenment philosophy directly influenced American professor in the department of journalism ideas, leading to a more liberal concept of this freedom. Several and mass communications at New Mexico historians have recognized Wilkes’s importance to the development State University. The research for this article of colonial concepts of liberty in general. Wilkes has even been was presented at a conference of the American referred to as the “father of civil liberty,”4 but the direct connection Journalism History Association. between Wilkes and the U.S. constitutional right to a free press has been underdeveloped. This research builds upon all of those theories of press freedom and Wilkes’s influence on American rights by exploring more deeply his role in the development of

2 Journalism History 41:1 (Spring 2015) the ideal of liberty of the press. Close examination of colonial which I suppose they do not know was a Paper in which their King newspaper reports on Wilkes’s struggles for liberty—specifically was personally affronted, whom I am sure they love and honour.”11 press freedom—placed side-by-side with the historical origins of Franklin even instructed his partner David Hall not to reprint the liberty of the press in the colonies add to our understanding of its infamous North Briton no. 45.12 genesis by demonstrating a straightforward, positive, and critical Other historians explored how Enlightenment philosophy influence by Wilkes upon those who enacted the first constitutional directly influenced American ideas, leading to a more liberal concept protection for the freedom of the press. of this freedom.13 Journalism historian David Copeland has looked deeply into the development of religious thought and the role of ost theories of the origins of the constitutional right to a the Enlightenment in the evolution of the concept of press freedom free press largely ignore Wilkes’s contributions. Leading in this period. He views the freedom to speak and write openly as theorist Leonard Levy briefly noted Wilkes’s battles a logical extension of the struggle for liberty of conscience, and Mwith British authorities, even reporting that he had an “inflated points to Enlightenment thinkers (such as John Milton and John reputation among the colonists,” and that they associated Wilkes Locke) as the theoretical underpinnings of American free press with freedom of the press. Levy, however, does not recognize any theory. Copeland’s work builds on that of Frederick Siebert, who connection between Wilkes and the development of the American suggests that “Locke would have agreed that a free and open press constitutional right, directly stating that Wilkes “did nothing was the way to usurp tyranny.”14 What Locke actually proposed whatever to advance freedom of the press,” since he never actually was simply an end to licensing, or prior restraint and he did very repudiated the legality of prosecution for seditious libel and did little to develop the philosophy of freedom of the press.15 He had not write any detailed theory of what liberty of the press actually an opportunity to give constitutional protection to free press and meant.5 Rather than focus on Wilkes or the contemporary British speech when he co-authored a new constitution for the colony of political struggles, Levy’s premise was that American press freedoms Carolina, but it contains no such clause. In fact, “The Fundamental emerged directly from British legal tradition, especially the Constitutions of Carolina” included licensing of the press as part of influential Sir William Blackstone, and while it precluded the need the law as a function of the “councillor’s court.”16 for a license prior to publication, it did not include freedom from For John Milton, the freedoms of printing, speech, thought, seditious libel prosecution.6 “Theliberty of the press,” as Blackstone and religion were closely tied together, “Give me the liberty to restated the common law current in the 1760s, “is indeed essential know, to utter, and to argue freely according to conscience, above to the nature of the free state; but it consists in laying no previous all liberties.”17 He argued unsuccessfully against English licensing restraints upon publications, and not in freedom from censure for and censorship of the press in “Areopagitica: A Speech for the criminal matter when published.”7 But that common-law practice Liberty of Unlicensed Printing” to Parliament in 1644. However, was being superseded by the actions of juries on both sides of as Copeland notes, Milton’s thesis was not widely read at that time, the Atlantic, including the jury that refused to convict Wilkes of and his argument gained little traction.18 Milton did not argue for seditious libel.8 complete freedom to publish anything, rather he argued against As later theorists have argued, colonial legal developments— prior restraint. Far from being the champion of unrestricted press especially the John Peter Zenger case—were the impetus for a freedom as he is sometimes held up to be, Milton believed that the more extensive press freedom. While a jury refused to convict writer or printer’s name must be published and he even suggested printer Zenger for seditious libel of the governor of New York, executing those who published anonymously. Milton supported it provided no real legal precedent.9 The Zenger case—and other strong punishment for those who libeled church or state.19 trials in England and the colonies, where the juries refused to The more serious political thinkers such as Milton, Locke, convict defendants for seditious libel—did lead to greater latitude and Thomas Hobbes were rarely presented directly in the colonial for political commentary and helped pave the way for truth as a press. Political journalists related to the informal radical whig party legitimate defense. were more often quoted in colonial newspapers than were the Press historian Jeffery Smith disagrees with Levy, suggesting Enlightenment philosophers, and they had much to say regarding that a libertarian ideology did develop in the American press before the importance of a press free to oppose the government in power. passage of the Stamp Act, and it was strongly influenced by the Writing as Cato, John Trenchard and Thomas Gordon noted that: radical whigs (an informal group also referred to by historians as the “Freedom of Speech is the great Bulwark of Liberty; they prosper “real whig,” or opposition “country party”). The idea developed by and die together: And it is the Terror of Traytors and Oppressors, this group was that a free and openly critical press was necessary to and a Barrier against them.”20 In a statement credited to Henry St. balance a potentially corrupt and powerful government. According John, Viscount Bolingbroke, the Craftsman claimed that the liberty to Smith, this direct connection between such republican thought of the press “was one of the blessings of a free people,” “the chief and colonial journalism of the eighteenth century has been bulwark and support of Liberty in general,” and the “great bulwark underdeveloped.10 Smith does recognize that Wilkes’s battles with of our Constitution.”21 Newer historical analysis points to public the British ministry and the constant attention given him by the discourse driven by these popular writings that had a more direct American press did keep the colonial public concerned about the influence on freedom of the press than did court precedents.22 erosion of civil liberties, but by focusing on printer Benjamin Wilkes’s recent biographer Arthur H. Cash recognized both Franklin and his philosophy of press freedom, Smith largely Wilkes’s importance to British press freedom and to the American ignores the important role that Wilkes played in this development. Bill of Rights: “Wilkes helped to inspire a love of liberty in America, Franklin’s publications reflected his distaste for Wilkes, mentioning and his accomplishments for English law would have a profound him much less often than did other colonial newspapers, and often influence upon the laws of America.” Cash notes Wilkes’s direct in a negative light. In a letter to his son, Franklin wrote: “I am influence in the U.S. Constitution and Bill of Rights regarding the sorry to see in the American Papers that some People there are so lack of a property ownership qualification for voters, the restrictions indiscreet as to distinguish themselves in applauding his No. 45, placed on Congress over who could be elected, and prohibitions

Journalism History 41:1 (Spring 2015) 3 against general warrants.23 However, Cash never fully developed Colonies in Great-Britain.”29 His fight for individual freedoms in the important direct connection between Wilkes and the U.S. England caught the attention of colonists who were fighting for constitutional right to a free press. their own freedoms. Many colonial newspapers were constantly printing the smallest details of his life, his legal problems, and his o British politician was more popular in the American battles with the British ministry. colonies from the turbulent 1760s through the Revolution Well-loved by the middle class in London, elected to than was radical John Wilkes.24 The colonial newspapers Parliament, and editor of a popular opposition periodical, Wilkes Ntook note of every change of his whereabouts or his personal was an excellent writer but a poor public speaker. His physical condition: “By a Gentleman who lately had much conversation appearance was another weakness, and it has been said that even Mr. Wilkes, we are informed that he continues in good health, caricatures of him flattered him inadvertently as his face was so and in possession of his usual vivacity.”25 He was an idol to the hideous. American Sons of Liberty;26 members in Boston corresponded with What has damaged his reputation most over time were his Wilkes27 and were reported to have drunk 4528 toasts, including “personal immoralities:”30 profanities, licentiousness, and his to the king and to “Alderman Wilkes, and all the Friends of the constant indebtedness.31 Wilkes was a married man, but while he was in Paris, one colonial newspaper reported: “that an Englishman of some figure was lately obliged to make a precipitate retreat from that city, on account of some innocent familiarities which he took through the grate of a convent with a young Lady, whose brother was his intimate acquaintance.”32 Such promiscuity was quite common for gentlemen of his era, but as both a rake and a critic of government, Wilkes went further than what was acceptable. Wilkes’s imprisonment, expulsion from Parliament, and exile to France following charges of seditious libel began with his publication of the 45th issue of The North Briton.33 After the ascent of King George III to the throne of Great Britain, Wilkes began what became a popular radical weekly newspaper written in opposition to the government. While he claimed loyalty to the king and the monarchy, his barbs were specifically aimed at the king’s favorite; the Scottish Prime Minister of Great Britain, John Stuart, the Earl of Bute. Satire being a widely popular form of political criticism, Wilkes even named his newspaper in parody of Bute’s newspaper, The Briton. The very name,The North Briton, referred to Bute’s Scottish roots and played upon a widespread English distrust of the Scots. In this publication, Wilkes wrote that through their behavior, they “have justly rendered the very name Scot hateful to every true Englishman.”34 The important battle over freedom of the press between Wilkes and the government began with a strong criticism over the king’s speech to Parliament—a daring step for the eighteenth century. By noting that the king’s speech “has always been considered…. as the Speech of the Minister,” rather than that of the king himself, Wilkes attempted to justify his attack. This fine distinction was an John Wilkes holding the cap of Liberty. 1763 etching and engraving by William Hogarth. attempt to avoid a direct attack on the

4 Journalism History 41:1 (Spring 2015) monarch himself but rather aim his strong words at Bute. Wilkes edited, perhaps had co-written, and had printed in very limited strongly attacked the truthfulness of the speech, which largely dealt quantity: an “Essay on Women,” a parody of Alexander Pope’s with the Peace of Paris that ended the Seven Years War (or the “An Essay on Man.”40 Ironically, this work would not be extant “French and Indian War”). While the speech stated that Britain’s today, if not for the fact that Wilkes’s enemies—in their desire to ally, the king of Prussia, “approved” the “terms of accommodation,” censor the work—reprinted it to present to Parliament. Written Wilkes noted that, “The infamous fallacy of this whole sentence is as comic pornography, the verse is described as erotic, sexual, and apparent to all mankind: for it is known that the king of Prussia even “puerile.”41 In it were many words that are today still not did not barely approve, but absolutely dictated, as a conqueror, used in polite company, sometimes written in slang, sometimes every article of the terms of peace.” Wilkes went on to declare that in Latin. What perhaps got him in the most trouble was replacing Britain’s king “was basely deserted by the Scottish prime-minister the original allusions to God and faith with representations of of England.” Wilkes wrote that the peace itself was an insult to sexuality: “Wilkes did the shocking thing of substituting a divine the British crown, and that “All our penis for God.”42 The House of Lords most valuable conquests were agreed to declared the work blasphemous, expelled be restored.” Then Wilkes went very far “This harsh political attack was Wilkes from the House of Commons, in criticizing the king himself: “I wish too much for King George III. found him guilty of obscene libel, and as much any man in the kingdom to see then did what the courts had not been the honour of the crown maintained in a He ordered general warrants able to accomplish—found him guilty manner truly becoming Royalty. I lament of seditious libel. As Wilkes had fled to see it sunk even to prostitution.”35 drawn up to seize any papers to France before the trial, he was also This harsh political attack was too declared an outlaw. While his radical much for King George III. He ordered or any persons involved in what political accomplishments made him general warrants drawn up to seize any extremely popular at the time, “[h] papers or any persons involved in what the monarch and his political istorians have ignored John Wilkes, the monarch and his political allies if they have not hated him” because considered a seditious libel. The King’s allies considered of his lack of sexual morals and his Messengers arrested a total of forty-nine a seditious libel.” “blasphemy” in this pornographic poem, people and seized many papers both Cash wrote.43 public and private.36 According to a letter in one colonial newspaper, Wilkes was arrested and thrown he colonial press constantly reported these attacks on into the Tower of London after “the King’s Speech is attack’d and Wilkes, as many colonials saw an unjust ministry’s actions treated with unreserved Freedom ; and the Warrant sets forth against Wilkes as reflective of their own woes. According that he has endeavor’d to sow sedition, and alienate the affections Tto The Pennsylvania Gazette, Wilkes’s “scandalous work” was read of his Majesty’s Subjects.” Taking note of Wilkes’s popularity in in the House of Commons and his North Briton no. 45 was to be the city of London, the writer goes on to predict, “It will make burned by the hangman.44 Benjamin Franklin was the printer of a terrible Noise, and no doubt the City will be all on Fire upon this colonial newspaper, and while most of the American colonists the Occasion.”37 TheBoston Evening-Post from June 1763 reported appeared to be enamored with Wilkes, Franklin was not. His on Wilkes’s arrest: “[O]n Saturday John Wilkes, Esq; Member newspaper printed fewer trivial notices about Wilkes and generally of Parliament for Aylesbury, was taken into Custody by four of had a more negative flavor. In a letter to his own illegitimate son, his Majesty’s Messengers, & conducted to his Lordship’s [Lord William, the elder Franklin described Wilkes as “an outlaw and an Halifax] House, from thence was committed Prisoner to the Tower, exile, of bad personal character, not worth a farthing.”45 The popular being charg’d with writing a piece in the North Briton.”38 excitement over Wilkes offended Benjamin Franklin, and he went The general warrants—essentially a blank arrest and search on to describe the drunken mobs, the smashing of windows, and warrant allowing the arresting agent to determine who should the waste of candles illuminating the city of London for two nights be arrested and what papers should be taken—were no longer running. Wilkes’s profligate lifestyle, constant indebtedness, and considered legal for other cases, but they were still used for sexual license were no doubt inconsistent with Franklin’s ideal of accusations of seditious libel. As a member of Parliament, Wilkes’s virtue.46 privilege was supposed to protect him from such arrest, and he was While Franklin was not enamored with Wilkes, a great many soon freed. The ministry continued its seditious libel suit against colonials were. Wilkes’s struggles demonstrated just how corrupt Wilkes, but the law was on his side. His enemies had to go so was the British ministry and how such misuse of power was a threat far as to remove him from Parliament to be able to accomplish to the liberty of both the English and the colonists.47 Newspapers the prosecution. The radical politician countered by suing the throughout the colonies reported negatively on Wilkes’s arrest government for trespass and fought the legality of his arrest and of and positively on his fight for press rights. In 1766, the Maryland the general warrants.39 Wilkes became not only an example of the Gazette claimed that “he risqued his Life and lost his Liberty, government stifling printed opposition but also of standing firm and as the Arbitrary and illegal Violations of the Rights of every and battling for the right of freedom of expression. Englishman, in his Case, had given them a Cause to stand upon.”48 This was, however, far from the end of Wilkes’s troubles and A Virginia Gazette from 1768 printed a letter from London that his place in history has been seriously damaged by what can be included the opinion that Wilkes’s intentions were not seditious: now viewed as a public relations coup by those who opposed him. “Though Mr. Wilkes may have been too incautious in some of his Among the papers taken from Wilkes’s home was a manuscript writings, I firmly believe that such incaution arose merely from never intended to be made public. Political enemies then reprinted zeal for the honour and service of his country, and that few, in and read to the House of Lords a pornographic poem Wilkes had this kingdom possess a larger share of real genuine patriotism

Journalism History 41:1 (Spring 2015) 5 than Mr. Wilkes.”49 American patriots saw a cause similar to their reached an accommodation allowing his return, but that he would own in the radical Wilkite anti-ministry forces.50 While living no longer write and publish on politics.59 in London, Virginian Arthur Lee joined Wilkes’s “Bill of Rights Wilkes and the ministry never did reach such an amicable Society,” a group named after the British bill of rights passed in settlement, but his popularity with the masses and with the 1689 to establish limitations on the power of the Crown. While Americans continued to grow. During the dispute over the release ostensibly formed to protect individuals’ rights against a growing of his scandalous poem, Wilkes fought a duel, was seriously injured royal prerogative, it primarily functioned as a group to pay off and fled to France. After years of exile and exclusion from the Wilkes’s debts. Lee eventually became secretary of the group.51 legislature, he finally was able to return to England, to politics, Americans named their towns and children after Wilkes. Wilkes and to Parliament. Wilkes eventually won his legal battle for his County, North Carolina and its county seat of Wilkesboro were seat in the House of Commons and succeeded in overturning named for the radical journalist. Wilkes-Barre, Pennsylvania was the use of general warrants for seditious libel arrests. After his named for Wilkes and another supporter return, Wilkes eventually won a vote to of the colonial cause in Parliament.52 remove his incapacitation from the lower The Pennsylvania Gazette reported that a “Press freedom in the colonies house, arguing that Parliament derived baby was baptized with the name Wilkes its authority from the electorate, not and the child’s breast was festooned with developed a bit more slowly the other way around. He maneuvered ribbons done up in the number 45.53 than in the motherland, this legal action that not only put The very number 45, the number of him back in the legislature but also the issue of the North Briton for which especially in Virginia where protected the rights of citizens to elect Wilkes was arrested, became a symbol for their representatives, no longer allowing freedom and liberty both in the colonies the lack of a large city led to less either house to expel any member they and in England and was seen often in chose. If the ruling party could decide the newspapers as conflict with Britain competition among printers, who might sit in the house and who approached. Many American newspapers might not, the lower house would be reported that Sons of Liberty throughout and the one newspaper was self-creating and self-existing. This was the colonies celebrated Wilkes and said to be controlled by the an extremely important precedent to the toasted to him 45 times. According the U.S. Constitution.60 Wilkes was also an South Carolina Gazette, mechanics in Royal Governor. “ early supporter of universal suffrage, or Charleston met under a Liberty Tree that at least he supported allowing all men was festooned with 45 lights and then to vote, not just property owners.61 That marched to a local tavern where they had 45 bowls of punch and endorsement for broadening the electorate, his political journalism 45 bottles of wine.54 Another issue reported that 45 Sons of Liberty that generated wider interest in civic affairs, and his extraordinary supped on 45 different dishes.55 The Virginia newspapers noted a popularity with the middling and lower classes made Wilkes report “that forty-five Gentlemen of Virginia, have sent Mr. Wilkes an early populist. In a tactical coup, Wilkes also succeeded in forty five hogsheads of tobacco: I wish it may be true, as it would obtaining the right of newspapers to print the proceedings of the manifest the generous spirit they are animated with in the cause of legislature, something they had not been allowed to do. Because liberty.”56 The number 45 had become not only a symbol of John of his continued support of the American cause—even after the Wilkes and liberty, but also a symbol of the colonists’ freedom and Declaration of Independence—and his own fight for freedoms, their battle against the British ministry. “Wilkes and Liberty” became a battle cry in America. In Virginia, “Wilkes was discussed and quoted in the Virginia Gazette more than was any other single man.”57 According to the hile Wilkes and other popular “radical whig” political Virginia Gazette Index, 1736-1780, John Wilkes was mentioned writers were influential in the development of the idea hundreds of times between 1766 and 1777, covering more than of liberty of the press as expressed in the newspapers, three pages in the index, compared to less than two pages of entries Wtypically historians, legal scholars, and modern court justices see for King George III and two pages for future President George the origins of the free press clause in British and colonial legal Washington.58 Even the smallest of Wilkes’s movements or legal developments, and their philosophic roots. Judges sometimes travails deserved a mention. On just one page of a Virginia Gazette reach out for the “original intent” of its creators to help apply the of 1767, Wilkes was mentioned six times, despite other news on the First Amendment to individual court cases. As several critics have Stamp Act, the tea incident in Boston, and a dispute between well- noted, such legal experts and politicians claim to know such intent known evangelical ministers George Whitefield and John Wesley. It without any historical context or any understanding of what was was reported that Wilkes had returned from exile in France. It was also misreported that there would be a pardon for Wilkes. The speculation that some sort of agreement had been reached was stated as a fact, not just rumor, multiple times—despite the reality that such a deal never did materialize. One erroneous report stated that he would be given a post in Ireland by the government, and another speculated that he would be appointed Royal Governor to an American colony. Another story In his The North Briton No. 1 in 1762, John Wilkes wrote about the importance that turned out to be untrue suggested that he had of the liberty of the press.

6 Journalism History 41:1 (Spring 2015) to print freely.63 Press freedom in the colonies developed a bit more slowly than in the motherland, especially in Virginia where the lack of a large city led to less competition among printers, and the one newspaper was said to be controlled by the Royal Governor.64 While the first newspaper there expressed a very restricted view of press freedom, recognizing that, “By the Liberty of the Press, we are not to understand any licentious Freedom, to revile our Governors and Magistrates,”65 by the 1760s, having a press free to criticize government had become important to the colonists and to John Wilkes. The very first issue of his The North Briton defended freedom of the press: “Theliberty of the press is the birth-right of a Briton, and is justly esteemed the firmest bulwark of the liberties of this country. It has been the terror of all bad ministers.”66 His fight against general warrants in cases of seditious libel, his move to open Parliament to reporting, and his continued critical political journalism made him a living icon of liberty of the press By the time of Wilkes’s travails in the 1760s, freedom of the press in all of Great Britain was developing beyond the Blackstonian concept of simply freedom from licensing and prior restraint. As Siebert noted, in both the colonies and England, juries were refusing to convict printers and writers of seditious libel. The Zenger case in New York was not alone in standing in the way of governments stifling dissent. In London, it was a rare jury after 1735 that would follow the legal instructions and actually find a defendant guilty of seditious libel.67 While the ministry did eventually succeed in convicting John Wilkes of seditious libel, that Mezzotint of Wilkes by John Dixon, 1770. Courtesy the British National Portrait debacle convinced the British government Gallery, London. that enforcing criminal libel laws was too actually said several hundred years ago.62 The author of the First difficult.68 Political journalism and public Amendment, future President James Madison, and his collaborators opinion became more critical in England during this time, and left us little direct evidence of precisely what they intended, so civic discourse broadened to include the common people, partly instead, precedents in British law, Enlightenment philosophical due to Wilkes’s popularity and his efforts. Press freedom developed writings, and early American court practices are generally accepted beyond the earlier, more limited, concepts.69 Wilkes’s battles over as the origins of this important concept guaranteeing press freedom. press freedom supplied an important example for the American The reality, however, is that there is precious little in any of these colonists, and especially Virginians. Just after Wilkes’s conviction sources regarding real freedom of the press. in Parliament, the Maryland Gazette (widely read in Virginia) ran a The right to a free press evolved very slowly in England. long letter disparaging the ministry’s attack on press freedom: Printing was licensed and heavily censored by both the government and religious authorities before the English Civil War and after There is no Liberty in this Country which is held more four years of a freer press (including some criticism of the dear than that of the PRESS, nor indeed with so much Commonwealth government) Oliver Cromwell reinstated that Reason; for if that is destroyed, what we have else to boast censorship. After the Restoration of the monarchy, printing again of, is gone in an Instant. Arbitrary Ministers (and none required a license and the press was censored—except for another but such) are Enemies to this Liberty, because it ever has brief respite when the licensing act expired—until the licensing been a Check upon their Tyranny. But, if ever that Time law finally expired for good in 1695. The English Bill of Rights in should come when the Press may be punished without 1698 did guarantee free speech, but only to members of Parliament a JURY (that great and solemn Privilege of Englishmen while in actual debate, and did not include any mention of a right delivered down to us by our virtuous and spirited

Journalism History 41:1 (Spring 2015) 7 Ancestors) may we not fear the Liberties of this Country, of Rights was drafted.76 and all the Blessings of this Country, and all the Blessings The colony of Virginia with its constitutional precedents, which it boasts above other Nations, will be departed its political leaders, and its local fight for freedom of the press forever?70 was an important influence on the free press clause in the First Amendment to the United States Constitution. In 1776, Virginia Just as the colonies were actively protesting the Stamp Act, the declared its independence and was the first colony to write a new first issue of a new Virginia newspaper ran an article taken from constitution. Passed first, but later incorporated into the new state’s Wilkes’s North Briton. It strongly opposed the Stamp Act, passed constitution, article twelve of this early bill of rights states: “The without colonial assent, and even predicted the Revolutionary War freedom of the press is one of the great bulwarks of liberty, and can if such laws were enforced: “the consequences must be dreadful never be restrained but by despotic governments,”77 echoing the to the Interest of England.---In Support of a Law passed by an words that Wilkes (and others) had written, calling liberty of the injudicious Minister, a Civil War will not only be carried out press a crucial “bulwark” of all liberties.78 While this is not stated as between the Mother Country and her Colonies, but the Trade of a firm prohibition, as it was written in later state constitutions and the Plantations will be irrecoverably lost.”71 A 1771 issue of the the Bill of Rights, it was an essential first step. Virginia Gazette took note of “the present Dispute about Liberty of The Virginia Declaration of Rights and its first-ever the Press” and Wilkes’s role in fighting the “illegal Attempts.”72 Just constitutional protection of a free press was a crucial precedent to a few weeks later, that newspaper again reported on Wilkes and the First Amendment of the United States and it influenced every his support of press freedom, and in a separate letter, applauded other state constitution that followed. It also had an immense impact another member of Parliament for his support of Wilkes’s case, worldwide. Stephan A. Schwartz wrote, “Virginia’s Declaration of “in Defense of the almost only remaining Bulwark of our expiring Rights would be an unprecedented political statement; nowhere in Freedom, the Liberty of the Press.”73 A humorous but satiric modern times had a government acknowledged such a concept as reference to Wilkes in a 1775 newspaper referred to him as “our individual inalienable rights, let alone formalized it as a limitation patriot,” and expressed the wish that a sculptor could create for on its own power.”79 Between the time of the Stamp Act crisis and the king and members of Parliament better heads, “in exchange for the early years of the American Revolution—just at the time the those which are the wrong heads of these wrong times.”74 Declaration of Rights was written—this British radical politician It is noteworthy that such a champion of press freedom was so John Wilkes was the most prominent figure writing about and often written about and read about in Virginia—the very colony setting the example for a free press in Britain and in the colonies. where press freedom first flowered in constitutional form. This His travails served as a stark warning of what could happen if there first codification of the right to a free press happened not long was no freedom of the press. after the British Ministry was battling Wilkes over his “seditious libels” in the North Briton no. 45 and very shortly after Wilkes first istory has not remembered Wilkes kindly. The British achieved the right of the press to report on debates in Parliament. ministry essentially won its battle against Wilkes with Much more than a simple coincidence, this gives credence to the a successful public relations coup. While he eventually Htriumphed in the issue of general warrants, seditious libel, reporting theory that the original intent of the freedom of the press clause in the Virginia Declaration of Rights and in the subsequent First on Parliament, and his expulsion from Parliament, his enemies Amendment was indeed intended to prevent such prosecutions forever tarnished his name with the conviction of blasphemy or for seditious libel. Wilkes’s battle with the British ministry over obscene libel, despite the fact that he never intended to make Essay the right to criticize the government was an important warning to on Women public. Wilkes did return to the lower house to serve those who crafted the clause on liberty of the press. They saw the many years, eventually losing favor with the masses as he became need for protection of political commentary; and Wilkes’s eventual less radical and less combative with the king and his ministers. success over the charge of seditious libel makes it clear that the Despite his popularity with the general public, his support of colonists did want to protect exactly this type of press liberty. the American cause, and his repeated fight for personal liberties, Just prior to the writing of the Declaration of Rights, the Wilkes himself was not a revolutionary. He was loyal to the king Virginia Gazette ran a letter echoing the word of Wilkes, Cato, and the monarchy.80 Wilkes even once told King George III that and Lord Bolingbroke. “Civis” wrote in the Virginia Gazette that he was not a “Wilkite,”81 as his radical supporters were called. His “Liberty of the Press is the palladium of our LIBERTIES,” and he behavior was much more politically conservative in his old age, quoted an unidentified writer, “the liberty of the press is inviolably and eventually lost him the support of his more extreme followers. connected with the liberty of the subject … The use of speech is a Today in America, Wilkes is best remembered for his battle over his natural right, which must have been reserved when men gave up rightful election to Parliament, his fight against general warrants, their natural rights for the benefit of society. Printing is a more and his efforts to involve the middling and lower classes in the extensive and improved kind of speech.” Undue and excessive political process, all of which led to important legal protections in prosecution of the press was against the principles of the British the new United States Constitution.82 Many historians recognize constitution, he argued: “Blasphemy, perjury, treason, and personal Wilkes’s importance to the development of freedoms in general slander, are the principal offences which demand restraint” by and press freedom in Great Britain.83 Historian Pauline Maier did the press, but Civis noted that only punishment consistent with recognize the overall importance of Wilkes to the American colonies the damage would be constitutional. Most important, this letter and their fight for freedom, noting that in the late 1760s and early did not include seditious libel as a punishable offense, but only 1770s, “no English political figure evoked more enthusiasm in personal libel.75 Heavily influenced by Wilkes and “real whig” America than the radical John Wilkes,” but Maier did not focus on opposition rhetoric, this was strong lobbying for a protection his influence on freedom of the press.84 Cash noted how Wilkes’s of press rights in the new state constitution, as this editorial was battles were important prefaces to many American freedoms, and printed in Williamsburg just days before the Virginia Declaration while not drawing a direct line to the First Amendment, Cash did

8 Journalism History 41:1 (Spring 2015) recognize Wilkes’s influence on British press freedom.85 21 The Craftsman (London: Richard Francklin, Dec. 9, 1726, June 24, His direct influence on American freedoms and constitutional 1727, Sept. 28, 1728, and Nov. 2, 1728), quoted in Jeremy Black, The English Press rights has largely been forgotten over time. His success in allowing in the Eighteenth Century (Philadelphia: University of Pennsylvania Press, 1987), press coverage of Parliamentary debates was an important precedent 125. 22 Roger P. Mellen, The Origins of a Free Press in Prerevolutionary Virginia: on both sides of the Atlantic. His battle against prosecution for Creating a Culture of Political Dissent (Lewiston, N.Y.: Edwin Mellen Press, 2009), seditious libel had a critical impact on Americans and their First 284. Amendment rights. If not for Wilkes and his highly visible battles 23 Arthur H. Cash, John Wilkes: The Scandalous Father of Civil Liberty for freedom of the press, such rights might never have appeared (New Haven, Conn.: Yale University Press, 2006), 371. in the Virginia Declaration of Rights—or even in the American 24 Ibid., 295. See also Pauline Maier, From Resistance to Revolution: Bill of Rights. American freedoms in general—and specifically our Colonial Radicals and the Development of American Opposition to Britain, 1765-1776 unique and vital freedom of the press—owe a great debt to the (New York: Norton, 1991), 163. controversial radical British political journalist, John Wilkes. 25 Virginia Gazette (Williamsburg: Purdie and Dixon, April 11, 1766), 2. Many issues of this newspaper are available at the Rockefeller Library, Colonial NOTES Williamsburg, online at http://research.history.org/DigitalLibrary/VirginiaGazette/ VGbyYear.cfm. Some originals and many photocopies are also in the Library of Congress. There were as many as four newspapers published simultaneously 1 Pauline Maier, “John Wilkes and American Disillusionment with Britain.” in Virginia with the same name. For detail, see http://research.history.org/ The William and Mary Quarterly20, no. 3 (July 1963): 373-95. DigitalLibrary/VirginiaGazette/VGbyYear.cfm 2 Boston Post-Boy and Advertiser (Boston: Green & Russell, June 20, 26 Jack Lynch, “Wilkes, Liberty, and Number 45,” Colonial Williamsburg 1763), 4. Many colonial newspapers are available through America’s Historical Journal (Summer 2003), http://www.history.org/foundation/journal/summer03/ Newspapers, online at http://infoweb.newsbank.com. wilkes.cfm. 3 Leonard Levy, Emergence of a Free Press (New York: Oxford University 27 Maier, “Wilkes and American Disillusionment,” 373-95. Press, 1985), xviii. See also Levy, Freedom of Speech and Press in Early American 28 The number 45 is rendered here as a numeral instead of words to History: Legacy of Suppression (New York: Harper & Row, 1963), and Levy, Legacy conform to the style used by Wilkes and his contemporaries as they referred to that of Suppression: Freedom of Speech and Press in Early American History (Cambridge, particular issue of his newspaper in their writings. Mass., Belknap Press of Harvard University Press, 1960). 29 Boston Evening-Post (Boston: Thomas and John Fleet, Aug. 21, 1769), 4 Boris Johnson, Johnson’s Life of London: The People Who Made the City 2. That Made the World (New York: Riverhead Books, 2012), 153. 30 Lynch, “Wilkes, Liberty, and Number 45.” 5 Levy, Emergence of a Free Press, 141-47. 31 R. des Habits, forward to The Life of John Wilkes, Patriot; an Unfinished 6 Ibid., xviii. Autobiography, by John Wilkes (London: The Lion and Unicorn Press, 1955), 12-3. 7 Blackstone, Commentaries on the Laws of England (Oxford: Clarendon 32 Virginia Gazette (Williamsburg: William Rind, Jan. 11, 1770), 2. Press, 1765-1769), quoted in Levy, Emergence of a Free Press, 12-13. Italics in 33 Wilkes’s imprisonment, expulsion from Parliament, and exile to France original. following charges of seditious libel began with his publication of the 45th issue of 8 Frederick Seaton Siebert, Freedom of the Press in England, 1476-1776: The North Briton. The Rise and Decline of Government Controls (Urbana: University of Illinois Press, 34 The North Briton, 44 (London: John Wilkes, April 2, 1763; reprint, 1965 [1952]), 5. Dublin: printed for James Williams, 1766). Italics in original. 9 Richard W.T. Martin, The Free and Open Press: The Founding of 35 The North Briton, 45 (London: John Wilkes, April 23, 1763). Italics in American Democratic Press Liberty, 1640-1800 (Albany: New York University Press, original. 2001), 47-60. 36 Cash, John Wilkes: Scandalous Father, 101-5. 10 Jeffery Smith,Printers and Press Freedom: The Ideology of Early American 37 The New-York Gazette (New York: William Weyman, June 20, 1763), 3. Journalism (New York: Oxford University Press, 1988), viii, 6-7. 38 Boston Evening-Post (Boston: Thomas & John Fleet, June 20, 1763), 2. 11 Benjamin Franklin to William Franklin, April 16, 1768, in The Papers 39 Cash, John Wilkes: Scandalous Father, 122-23. of Benjamin Franklin, ed. Leonard W. Labaree, William B. Wilcox, et al. (New 40 Arthur H. Cash, An Essay on Woman: by John Wilkes and Thomas Potter Haven: Yale University Press, 1959- ), 15: 98-99, quoted in Smith, Printers and Press (New York: AMS Press, 2000), 14. Freedom, 148. 41 Ibid., 85-87, and “puerile” from Johnson, Life of London, 150. 12 Smith, Printers and Press Freedom, 218 n. 14. 42 Cash, An Essay on Women, 33. 13 David A. Copeland, The Idea of a Free Press: the Enlightenment and its 43 Cash, An Essay on Women, 5. Unruly Legacy (Evanston, Ill: Northwestern University Press, 2006), 75-90, 226. 44 The Pennsylvania Gazette (Philadelphia: Benjamin Franklin and David 14 Ibid., quoting Siebert and Locke at 92; and Siebert, Freedom of the Press Hall, Feb. 16, 1764), 2. in England, 261. 45 Quoting Benjamin Franklin to William Franklin, April 16, 1768, 15 Harold A. Innis and Mary Q. Innis, Empire and Communications Memoirs of Ben Franklin, edited by William Temple Franklin (London: Printed (Toronto: University of Toronto Press, 1972), 153; and Peter Laslett, ed., in John for Henry Colburn, 1818), vol. 2, 162, Google books, http://books.google.com/ Locke, Two Treatises of Government (Cambridge: University Press, 1960), 7. books?id=YmMFAAAAQAAJ. 16 John Locke [and Lord Ashbury, the Third Earl of Shaftesbury],The 46 Benjamin Franklin, and William Duane, Memoirs of Benjamin Franklin, Fundamental Constitutions of Carolina (March 1, 1669), article 35. Experts suggest vol. 1 (Philadelphia: McCarty & Davis, 1840), 34. this Restoration constitution was coauthored by Locke’s mentor, Lord Ashbury. See 47 Cash’s John Wilkes: Scandalous Father, Peter D. G. Thomas,John Wilkes; Laslett, in Locke, Two Treatises of Government, 24-33. A Friend to Liberty. (Oxford: Clarendon Press, 1996), and Maier’s article on Wilkes 17 John Milton, Areopagitica and Of Education, ed. George H. Sabine are the best biographical sources. For Wilkes as a colonial influence, see Maier,From (New York: Appleton-Century-Crofts, 1951), 49. Resistance to Revolution, 162-69. 18 Copeland, Idea of a Free Press, 83-85. 48 Maryland Gazette (Annapolis: Jonas Green, March 27, 1766), 2. 19 Thomas L. Tedford and Dale A. Herbeck, Freedom of Speech in the 49 Virginia Gazette (Williamsburg: Purdie & Dixon, May 6, 1768), 1. United States, 4th ed. (State College, Penn.: Strata Publishing, Inc., 2001) , 13-17. 50 Maier, “Wilkes and American Disillusionment,” 389-91. 20 Cato [John Trenchard and Thomas Gordon], “Of Freedom of Speech: 51 Cash, John Wilkes: Scandalous Father, 241 and 295. That the same is inseparable from Publick Liberty,” (Letter no. 15), London Journal 52 Johnson, Life of London, 153. Isaac Barré was a prominent member of (Saturday, Feb. 4, 1720), from Cato’s Letters; or Essays on Liberty, Civil and Religious, Parliament who opposed the taxation of the American colonies. and Other Important Subjects (London: 1755, sixth edition; reprint, New York: Da 53 Pennsylvania Gazette (Philadelphia: David Hall and William Sellers, Capo Press, 1971) 1:96-102.

Journalism History 41:1 (Spring 2015) 9 Oct. 30, 1766), 2. John Wilkes Booth was also named after John Wilkes, who was 68 Ibid., 380-384. a collateral ancestor, according to Cash, John Wilkes: Scandalous Father, 356. 69 Hellmuth, Eckhart, The Transformation of Political Culture: England 54 South-Carolina Gazette (Charlestown: Peter Timothy October 3, and Germany in the Late Eighteenth Century (Oxford: Oxford University Press, 1768), quoted in Maier, From Resistance to Revolution, 70. 1990), 2 and 467-501. 55 South-Carolina Gazette (Charlestown: Peter Timothy, Sept. 13, 1768), 70 Maryland Gazette (Annapolis: Jonas Green and William Rind, July 11, 2. 1765), 1. 56 Virginia Gazette (Williamsburg: Purdie and Dixon, June 18, 1767), 1. 71 The North Briton, 191 (London: John Wilkes, Nov. 17, 1770), quoted 57 Stella Duff, “The Case against the King: The Virginia Gazettes Indict in Virginia Gazette (Williamsburg: William Rind, May 16, 1766), 2. George III,” William and Mary Quarterly, 6:3 (July 1949): 390. 72 Virginia Gazette (Williamsburg: Purdie and Dixon, June 13, 1771), 2. 58 This index is not complete, as many issues of theVirginia Gazettes 73 Virginia Gazette (Williamsburg: Purdie and Dixon, June 27, 1771), 2. have been discovered since their indexing here, but gives us an excellence sense of 74 Virginia Gazette (Williamsburg: Purdie, May 26, 1775), 3. appearances in print. Very few issues of this newspaper from 1763-1764 are extant. 75 Virginia Gazette (Williamsburg: John Dixon and William Hunter, May See Lester J. Cappon and Stella F. Duff. Virginia Gazette Index, 1736-1780 vol. 1-2 18, 1776), 1. Italics in original. The word “palladium” had been used earlier in (Williamsburg: The Institute of Early American History and Culture, 1950.) the Virginia Gazette (Rind, May 21, 1772) by “Junius,” and use of the term in an 59 Virginia Gazette (Williamsburg: Purdie and Dixon, Jan. 15, 1766), 2. anonymous English pamphlet in 1770 is noted by Hellmuth, Transformation of 60 Cash, John Wilkes: Scandalous Father, 316-18. Political Culture, 487. 61 Johnson, Life of London, 172. 76 Helen Hill Miller, George Mason: Gentleman Revolutionary (Chapel 62 Dwight L. Teeter Jr. “Decent Animadversions: Notes toward a History Hill: The University of North Carolina Press, 1975), 148-49. of Free Press Theory,” in Donovan Bond and W. Reynolds McLeod, ed.,Newsletters 77 Authorship of this press clause is not clear. While most historians to Newspapers: Eighteenth-Century Journalism, Papers Presented at A Bicentennial attribute the writing of this to George Mason, who wrote the bulk of the Virginia Symposium at West Virginia University, Morgantown, West Virginia March 31-April Declaration of Rights, Irving Brant in James Madison, (Indianapolis: Bobbs-Merrill, 2, 1976 (Morgantown, W.V.: School of Journalism, 1977), 237. 1941-1961), 1:239, discovered a first draft that included the press clause not in 63 [English] Bill of Rights, 1689, in Bernard Schwartz, ed., The Bill of Mason’s handwriting, but rather written by the committee secretary, Thomas Rights: A Documentary History (New York: Chelsea House in association with Ludwell Lee. For analysis of possible authorship, see Mellen, The Origins of a Free McGraw Hill, 1971), 1:43; Copeland, The Idea of a Free Press, 60-98; and Douglas Press, 258-63. Fraleigh and Joseph Tuman, Freedom of Speech in the Marketplace of Ideas (Boston: 78 The North Briton, 1 (London: John Wilkes, June 5, 1762.) Bedford/St. Martin’s, 1997), 48. 79 Stephan A. Schwartz, “George Mason: Forgotten Founder, He 64 Roger P. Mellen, “Thomas Jefferson and the Origins of Newspaper Conceived the Bill of Rights,” Smithsonian Magazine 31, no. 2 (May 2000): 149. Competition in Pre-Revolutionary Virginia,” Journalism History 35, no. 3 (2009): 80 Johnson, Life of London, 169. 151-61. 81 Thomas,John Wilkes; a Friend to Liberty, 219. 65 Virginia Gazette (Williamsburg: William Parks, Aug. 6, 1736), 1. 82 Peter D. G. Thomas, “John Wilkes and the Freedom of the Press Although this first issue is no longer extant, this “Printer’s Introduction” was quoted (1770),” Bulletin of the Institute of Historical Research, xxxiii (1960): 86-98. in William Maxwell, ed., The Virginia Historical Register, and Literary Companion, 6 83 See for example Thomas,John Wilkes; a Friend to Liberty, 215-20. (1853): 21-31. 84 Maier, “Wilkes and American Disillusionment,” 373-95, and Maier, 66 The North Briton, 1 (London: John Wilkes, June 5, 1762.) Italics in From Resistance to Revolution. original. 85 Cash, John Wilkes: Scandalous Father, 3. 67 Siebert, Freedom of the Press in England, 5.

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