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Home , Arthur Lee (diplomat), Edmund Pendleton, Francis Fauquier, Francis Lightfoot Lee, Hannah Lee Corbin, John Dickinson

ROGER MELLEN

The and Freedom of the Press in The free press clause in the First Amendment to the U.S. Constitution is considered a unique and important part of our American democracy. While the origins of this right are a key to current legal interpretations, there is much misunderstanding about its genesis. This research uses eighteenth-century personal correspondence, other archival evidence, and published articles to demonstrate new connections between the Lee family of Virginia and the constitutional right to a free press. The important tradition of freedom of the press in the United of Virginia led Madison to pledge proposing a bill of rights if States owes a greater debt to one important family in Virginia than he were elected to Congress.2 When he did join the new House has been previously recognized. When we reflect upon the origins of of Representatives, Madison did as promised and composed the the right to freedom of the press, we tend to remember , amendments. He had as his template objections voiced to the new John Milton, , or even . Delving a Constitution by the state ratifying conventions and the bills of bit more deeply, we might even connect to and the rights passed by many of the states, including the groundbreaking Virginia Declaration of Rights—the first time press freedom was Declaration of Rights of Virginia.3 enshrined within a bill of rights. Looking at British political roots, In the years since the states ratified the First Amendment, we may even link the concept to Sir William Blackstone, Lord many historians and legal theorists have tried to determine Bolingbroke, Cato (John Trenchard and Thomas Gordon), or John its original intent, especially with regards to seditious libel (or Wilkes. However, digging deeper into the colonial American roots, prosecution by the government after-the-fact for criticism of this research finds an important association between the genesis government). Proponents of the Sedition Act of 1798 argued that of the idea of restricting a government’s freedom to interfere with it did not violate the First Amendment,4 although it appears to the press and three of the brothers from a famous Virginia family: have been a law abridging the freedom of the press. However, the , , and . concept of judicial review of the constitutionality of such acts had not yet been developed. Years later, Supreme Court Justice Oliver ames Madison did not initially agree with the need for a Bill Wendell Holmes, Jr., disagreed with the claim, “that the First of Rights for the new Constitution of the . He Amendment left the common law as to seditious libel in force” Jargued that while it was necessary to limit power in a monarchy, and suggested that the government had since shown remorse for the proposed federal republic would not need such protection.1 the Sedition Act.5 Generally accepted was the libertarian concept However, one of the main concerns of the antifederalists was the that freedom of the press, while not absolute, did prevent most lack of a bill of rights, and political pressure in his home state governmental interference, and did forbid prior restraint in all but the most extreme clashes with other important rights. Legal theorist ROGER P. MELLEN, Ph.D., is an associate Zechariah Chafee wrote in 1941 that the First Amendment goes professor in the department of journalism much further than simply forbidding prior restraint and includes and mass communications at New Mexico prohibition of seditious libel laws and prosecution. He suggested State University. that the intent was to “wipe out the common law of sedition, and make further prosecutions for criticism of government, without any incitement to law-breaking, forever impossible in the United States of America.”6 That view, that the First Amendment did not allow prosecution for seditious libel, was widely accepted until the 1960s when Leonard Levy’s book, Legacy of Suppression: Freedom of Speech and Press in

122 Journalism History 43:3 (Fall 2017) Above, Adoption of the Virginia Declaration of Rights, a fanciful painting by Jack Clifton, 1974. Courtesy Library of Virginia. Right, first draft of the Virginia Declaration of Rights. Courtesy the Library of Congress. While primarily written by George Mason, the press freedom clause was in the handwriting of Thomas Ludwell Lee, of whom there are no extant images. It reads, “That the freedom of the press, being the great bulwark of liberty, can never be restrained but in a despotic government.” As amended in committee, it came to read, “That the freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotick Governments.”

Early American History, turned the history of the First Amendment have rejected Levy’s views. Law professor David Anderson suggested on its head. Even his critics suggest this remains the most influential that Levy ignored the legislative history of the press clause, since it scholarly investigation of press freedom and original intent. Levy was inconsistent with his conclusion.9 Levy replied, “No demand argued that British jurist Sir William Blackstone was the primary at all existed for the legal protection of the press, and Anderson influence on the Americans as they began to write their own laws cites none.” Levy noted that the Virginia Declaration of Rights was and Levy stated that press liberty did not preclude prosecution for the first free press clause and that it was written by George Mason, seditious libel after publication.7 Even when he redrew his position composing alone, confronted by no pressure for press freedom.10 The some years later, Levy still claimed that this Blackstonian concept research being presented here includes many primary sources that was the only restraint intended by the free press clause of the Bill of Levy did not use, such as newspapers and private correspondence, Rights: “[T]he First Amendment was not intended to supersede to demonstrate that Levy is wrong on both of those counts and the common law of seditious libel.”8 The courts and many scholars suggest that his overall conclusion is flawed.

Journalism History 43:3 (Fall 2017) 123 Other historians moved past legal interpretations and instead soundest judgment of all the Lee brothers. Brother examined the direct influence that Enlightenment philosophers had was the family businessman who resided for many years in London, on press freedom.11 Journalism historian David Copeland views but supported the American cause. He returned to Virginia in the freedom to speak and write openly as a logical extension of 1783.21 Youngest brother Arthur Lee worked as a diplomat for the the struggle for liberty of conscience, and points to Enlightenment new United States, but while he is remembered as being the most thought as the origin of American free press theory. Copeland’s brilliant of all, he was also something of a misfit.22 He was educated work builds on that of Frederick Siebert, who looks to John Locke at Eton, became a medical doctor at the University of Edinburgh as the inspiration, but Locke merely proposed an end to licensing, and a lawyer at the Middle Temple in London. Sister Alice Lee or prior restraint, and he did not actually develop a philosophy of was married to the prominent physician William freedom of the press.12 John Milton is also thought to have been Shippen, Jr., and sister was something of a an inspiration to the colonists. He argued unsuccessfully against radical, converting from the established Church of to English licensing and censorship of the Baptist, living with a man without a press in “Areopagitica: A Speech for legal marriage, and even asking that the Liberty of Unlicensed Printing” to “As the crisis with women be given the right to vote.23 Parliament in 1644.13 However, Milton’s thesis was not widely read at that time, Great Britain was heating up, here were three watershed his argument gained few followers,14 and some of the more progressive developments marking freedom he did not argue for complete freedom to of the press in eighteenth- publish anything but only against prior residents wanted a press that Tcentury Virginia, and the Lee brothers restraint. Milton was not a supporter were involved in each of them. of unrestricted press freedom, as he would convey their political The introduction of the first-ever suggested executing those who published constitutional protection for freedom anonymously and supported strong messages. At that time, there of the press was an historic moment, punishment for those who libeled church but it emanated from the flowering of or state.15 These more serious political was only one printing press a free and more radical press, which thinkers such as Milton, Locke, and only happened—and only could have Thomas Hobbes were rarely printed and in Virginia, and it had happened—after a new printer was read in the colonies. Political journalists a history of control introduced to the colony. related to the informal radical Whig This first step was in 1765, when party were more often quoted in colonial by the royal governor.” some of the more radical colonists newspapers than were the Enlightenment brought a second press to the capital philosophers, and they had much to say of Williamsburg to free the flow of regarding the importance of a press free to oppose the government information to the colony. As the Stamp Act crisis with Great in power. As newer historical research finds, public discourse driven Britain was heating up, some of the more progressive residents by these popular writings had a more direct influence on freedom wanted a press that would convey their political messages. At that of the press than did court precedents.16 time, there was only one printing press in Virginia, and it had a history of control by the royal governor. he Lee family of Virginia was intimately involved in the The was in many ways an unlikely place for and in the development of the freedom of the press to take root. While it was the first successful concept of liberty of the press. Father Thomas Lee was a English colony, it was not the first to have a printing press. For the Tpolitically powerful and wealthy planter who built the stately Puritans of the Bay colony, literacy was a key to their Stratford Hall overlooking the Potomac River.17 Eldest son Philip religious beliefs so they were the first English to import a printing Ludwell Lee inherited both the plantation and the political mantle press into the New World. In Virginia, official suspicion towards from his father, becoming a member of the powerful Virginia printing ran so deep that—in an oft-quoted letter to his superiors Governor’s Council. Philip was politically conservative and died in back in England—the wrote in 1671 that 1775 without having supported the cause. “I thank God, there are no free schools nor printing, and I hope Thomas Ludwell Lee, the next eldest, was the most popular we shall not have these hundred years, for learning has brought of his siblings and is remembered as well spoken in private but disobedience, and heresy, and sects into the world, and printing has utterly unable to speak in public. He was an active member of divulged them, and libels against the best government. God keep the , but did not go into national politics.18 us from both!”24 Indeed, when the first printer and press appeared While the first known draft of a constitutional right to a free press in Virginia in 1682, such presumption so startled the governor and is actually in Thomas Ludwell Lee’s handwriting, no historian has his council that they exiled the press to the more welcoming colony actually verified that this important idea was his.19 He is so little of .25 By 1730, the official attitude toward printing had remembered by history than no image of him exists. changed so much that the Virginia legislature actually invited a Richard Henry Lee, as signer of the Declaration of printer to move to the colony and become the official printer with Independence, president of the , United a government salary.26 States senator, and famed orator, is the best remembered of the By the , Joseph Royle was the only printer in Virginia brothers. When speaking in public, Richard Henry would wrap and the royal governor tightly controlled what he could print. his injured hand in black silk, which he used to good purpose When the House of Burgesses passed ’s radical with practiced and effective gestures.20 had a Stamp Act resolves in May 1765, criticizing Parliament’s taxation successful political career and contemporaries said that he had the of the colonies, the newspapers in other colonies printed these

124 Journalism History 43:3 (Fall 2017) radical faction in the colony’s assembly.32 In a letter he wrote in February 1766, just months before Rind’s printing began in Williamsburg, Richard Henry mentioned possibly traveling to Maryland.33 While it is not clear what the purpose of such a trip was, Rind was then partner with printer Joseph Green in Annapolis where they often printed the more radical sentiments not printed on the Virginia press. R. H. Lee corresponded with Green, and even sent him material to print in the Maryland Gazette.34 We know nothing more about that possible trip, but when Rind left the Maryland partnership and brought a printing press to Williamsburg, he lived and ran his print shop in a house on Duke of Gloucester Street owned by the Lees’ uncle, Philip Ludwell III, later inherited by William Lee.35 Brother Richard Henry Lee collected Rind’s rent for this building.36 The second step toward press freedom was the beginning of radical or “patriot” writings— critical of the British government—appearing in the local prints. Rind’s first issue of his version of the Virginia Gazette was published on May 16, 1766, and promptly declared its concept of the Liberty of the Press with the slogan, “Open to All Parties, but Influenced by None.” Rind went on to state that “a well conducted NEWS-PAPER” was important in this time of “Crisis, which makes a quick Circulation of Intelligence peculiarly interesting to all the AMERICAN COLONIES.” He further noted, “The interests of RELIGION and LIBERTY, we shall ever think it our peculiar Duty to support.”37 In actuality, from this point on, the colony Richard Henry Lee, by , c. 1795-1805, oil on canvas. Courtesy had competing newspapers that no longer National Portrait Gallery, Smithsonian Institution; gift of Duncan Lee and his son, reflected royal control. Timid printer Joseph Gavin Dunbar Lee. Royle passed away in the midst of the Stamp fiery words, but they were not seen in the localVirginia Gazette.27 Act crisis, and when that version of the Virginia Gazette resumed An accusation that the Williamsburg printer would not publish publication under the direction of Alexander Purdie, soon joined anything critical of the British government appeared soon after in by John Dixon, it featured a claim that this newspaper would be the neighboring colony of Maryland: “[W]e are in this Colony “as free as any publick press upon the continent.”38Arthur Lee [Virginia] deprived of that great SUPPORT of FREEDOM, THE recognized this new press freedom prominently in Purdie and LIBERTY OF THE PRESS, as the only one we have here, is totally Dixon’s newspaper: engrossed for the vile Purpose of ministerial Craft.”28 Royle was later accused of operating a monopoly with a private license from It is [sic] matter of rejoicing to every well-wisher to the governor who required strict censorship: “Has it not been said mankind that the press, one of the principal handmaids and that a paper was constantly carried to a certain house in Palace of liberty, is become a free channel of conveyance whereby street [the Governor’s palace] to be inspected before it could be men may communicate their sentiments on every subject seen by the publick?”29 Even the acting governor admitted that the that may contribute to the good of their country, or the printer appeared to be too willing to please the royal authorities in information and instruction of their fellow subjects; and the colony, driving some of the more radical Virginians to bring in it is to be lamented that a tyrannical arbitrary power a second printer.30 should show itself, by traducing, and threatening with New research shows that Richard Henry Lee was likely one of prosecution, patriot spirits, who appear to glow with the radical burgesses instrumental in bringing printer William Rind an honest and unaffected zeal for their country’s good, to Williamsburg from Annapolis, Maryland. Although historians and seasonably and generously lay hold on the freedom have repeatedly credited Thomas Jefferson with recruiting the of the press whereby to exert their consummate abilities competing printer, that is now seen to be an error.31 Along with to instruct and inform mankind in things of the most Patrick Henry, R.H. Lee was one of the leaders of the more interesting nature.39

Journalism History 43:3 (Fall 2017) 125 Not everything Arthur Lee would write could get published in the The third step toward press freedom was unique and two Virginia Gazettes, however. In 1767, he wrote an essay arguing groundbreaking: The establishment of a constitutional right to a that freedom was the birthright of all mankind, including Africans: free press in the Virginia Declaration of Rights was the first time “[T]here cannot be in nature, there is not in all of history, an anywhere in the world that press freedom was guaranteed by instance in which every right of men is more flagrantly violated.”40 a constitution or bill of rights.53 The Lee brothers were directly The outrage over this attack on apparently meant the second involved in this important step as well. As Virginia was declaring itself essay on the topic was never published.41 a free state in 1776, the convention appointed a committee to draft The majority of his published writing focused not on slavery, a plan of government. The members prefaced the new constitution which he apparently abhorred,42 but rather on the colonial dispute with a remarkable bill of rights, created to protect the freedoms of with Great Britain. Arthur Lee is said to have been the most prolific citizens against the potential corrupt power of a new government.54 and influential publicist for colonial rights. One hundred seventy It was a large and cumbersome committee, “overcharged with essays, pamphlets, and published letters have been attributed to useless Members,” according to George Mason, and he expected him. In one of his most famous pamphlets, published in England “a thousand ridiculous and impracticable proposals.”55 The well- in 1774, he put forward a deeply reasoned legal argument against respected Mason took the lead, and according to contemporary taxation without representation, and noted just how precarious accounts, seemed “to have the Ascendancy in the great work,” and the situation had become: “A State of contention between Great his draft of the declaration, “swallowed up all the rest.”56 Britain and America, is not only disagreeable but dangerous.”43 His solution for solving the British-American crisis was the hile George Mason is known to be the primary author establishment of a colonial bill of rights. Arthur Lee wrote often of the Virginia Declaration of Rights, James Madison of the need for such, practiced press freedom with many radical, biographer Irving Brant noted a very interesting fact: pseudonymous publications, and was a first-hand observer of Wwhile the first draft of that landmark document is primarily in ’ battle for press liberty.44 That radical politician, “the Mason’s handwriting, the first version of the article on freedom English Champion of a free press,”45 was arrested on charges of of the press is actually in Thomas Ludwell Lee’s handwriting.57 As seditious libel after criticizing the king’s speech in his 1763 issue later amended by committee, this article number 12 states: “That number 45 of The North Briton. After a long struggle, Wilkes won the freedom of the Press is one of the greatest bulwarks of liberty, that battle for freedom to criticize the government, and he later and can never be restrained but by despotick Governments.”58 forced Parliament to open its doors to press coverage. The Virginia The documentary record of the 1776 constitutional convention newspapers were enamored with Wilkes, covered his every move, contains no evidence of who composed the free press clause. There and mentioned his name more than they did the king of England are no minutes of committee debates or votes, however, there is or future president George .46 Arthur Lee lived in contextual evidence on who might have been behind it.59 While it London for much of the decade and a half before the Revolution, was actually penned by Thomas Ludwell Lee, and he was, “one of and there he met and became fascinated with Wilkes. Arthur was the most respected and popular delegates among those who wished a strong supporter of Wilkes, a member and officer of his Bill of to press hard for bolder measures,”60 there is no indication that Rights Society, and backed Wilkes’s efforts to open Parliament to this idea was his.61 We do know that brother Richard Henry often reporting by the press.47 corresponded with his brothers, and that Arthur Lee—fighting for Richard Henry Lee published the radical essays his younger press freedom in England—also wrote many letters to his brothers. brother had written as the “Monitor” along with Pennsylvanian In a letter written just the day after the draft of the Declaration ’s “Farmers Letters.”48 “The Monitor’s Letters” of Rights was presented to the entire convention, Richard Henry were initially published in ten fiery installments in Rind’s wrote to his brother Thomas Ludwell an apology that he had no Virginia Gazette in 1768, warning the public of Britain’s active time to write to Mason; “Pray make my compliments to him, let threats to American liberties.49 In essay number four, Arthur Lee him have the news sent, and apologize for me.”62 No letter from recommended that the colonists petition to have their rights clearly them suggesting such an article on press freedom is extant. defined and “established into a bill of rights; to the end that we The English Bill of Rights provided an important model for may no more be alarmed with invasions of our liberties, but rest Mason as he drafted this set of rights for the new Commonwealth of in peace, each man under his own vine, and each man under his Virginia. The basic structure is very similar, with numbered articles own fig-tree.”50 Richard Henry wrote a forward in the pamphlet beginning with the word, “that,” and rather than forbid outright, it that was even more radical than were the original letters. He often uses the word “ought,” suggesting rather the proper behavior. implied that—if the dispute should come to war—the underdog Where the English version states, “That election of members of colonists would win, because of the distance, terrain, and a just Parliament ought to be free,” the newer Virginia version states, cause: “Shakespeare says, ‘thrice is he armed that has his quarrel “That elections of members to serve as representatives of the just, and he but naked, tho’ lock’d up in steel, whose conscience, people, in assembly ought to be free.” The obvious change here is with injustice, is oppressed.’ ”51 This is very fiery writing for 1769, that the concept of royalty is left out in the newer, Virginia version. long before others wrote about revolution or even separation from However, a major change is seen regarding both religion and free the mother country. Around this time, Richard Henry also wrote communication. While Catholics (or “papists”) are disallowed in an unpublished pamphlet, “The State of the Constitution of from sitting on the throne by the English bill, and certain rights Virginia,” that the British Constitution was imperfect, leading to a are allowed only to Protestants, the Virginia Declaration was the violation of the people’s rights. He concluded that this had led to beginning of a more expansive religious freedom. As stated in the English Bill of Rights, and that in Virginia, additional power article 13, “[A]ll men are equally entitled to the free exercise of given the royal governor, “unbalances the constitution.”52 Both of religion.”63 these writings demonstrate that Richard Henry Lee was thinking In the English Bill of Rights, only the lawmakers were accorded about a Virginia constitution and a bill of rights long before 1776. free speech, “That the freedom of speech and debates or proceedings

126 Journalism History 43:3 (Fall 2017) Philadelphia, to which he was a delegate, because Mason believed he was needed to help design the Virginia government: “We cannot do without you,” Mason wrote.68 It appears that although he was not present at the Virginia convention, Richard Henry had more influence upon Mason as he wrote both the Declaration of Rights and the new Virginia Constitution than did any other individual. One letter from Thomas Ludwell Lee to his brother Richard Henry from just the time as this committee was working on the declaration does exist. Thomas Ludwell refers to a letter from Richard Henry that he showed to Mason.69 While this letter apparently is not extant, it is possible that it included suggestions for a bill of rights. Before this, and Richard Henry, both in Philadelphia for the Continental Congress, discussed plans for a balanced government. Both of their ideas were shared with Mason and others in Virginia and can be seen reflected in the new constitution and the Declaration of Rights. However, neither plan mentioned the need for a free press.70 Richard Henry Lee had not only practiced freedom of the press, he obviously valued it as a human right. In October 1774, the Continental Congress appointed a committee of Richard Henry Lee, John Dickinson, and Thomas Arthur Lee by Charles Willson Peale, late eighteenth century. Courtesy Virginia Historical Society. Cushing to write an address to the residents of Canada.71 Following a in Parliament ought not to be impeached or questioned in any list of grievances against the British government, it included a list court or place out of Parliament,”64 and the issue of unencumbered of important rights of the people: printing was left out entirely. In the Virginia version, free speech was not mentioned, and the original draft followed the format The last right we shall mention, regards the freedom established by the English bill: “That the freedom of the press, of the press. The importance of this consists, besides being the great bulwark of Liberty, can never be restrained but in a the advancement of truth, science, morality, and arts despotic government.”65 While this draft uses the phrase “bulwark in general, in its diffusion of liberal sentiments on the of liberty,” common to writings of this time, this version of the administration of Government, its ready communication article does not use the word “ought,” so common in the English of thoughts between subjects, and its consequential preface and in many of the articles in the Virginia Declaration, promotion of union among them, whereby oppressive adding to the evidence that Mason was not the likely author. officers are shamed or intimidated, into more honourable There is no reason to believe that press freedom was important and just modes of conducting affairs.72 to Mason. He only once wrote a letter to a newspaper on any subject, and it was never published.66 It is clear that Mason, According to Robert Rutland, this was an important advancement who did not think highly of many people, respected and trusted for the liberty of the press: “For the first time in America, a group Richard Henry Lee and collaborated closely with him.67 Mason of public men had openly and explicitly declared freedom of the begged Richard Henry to leave the Continental Congress in press to be a fundamental tenet of civil liberty.”73 While this address

Journalism History 43:3 (Fall 2017) 127 is often attributed to John Dickinson, also the author of the Letters “The liberty of the press is the birth-right of a Briton, and has from a Farmer in , there is substantial evidence that by the wisest men in all ages been thought the firmest bulwark it was actually written by Richard Henry Lee. While Dickinson of the liberties of this country.”84 Decades earlier, a reference to claimed he was the author, John Adams noted that Lee showed him press freedom being a “bulwark” appeared in the British “country such an address before Dickinson had even joined the Congress, party” newspaper the Craftsman. The anonymous author, generally eighteen days before the committee writing the address had even recognized to be Henry St. John, the Viscount Bolingbroke, been appointed.74 Bibliographer Paul Leicester Ford suggests that claimed that the liberty of the press “is the greatest Blessing of a free perhaps Lee, rather than Dickinson, was indeed the main author People,” and “the chief bulwark and support of Liberty in general,” of this address75 and that argues that Richard Henry Lee was the and “this great bulwark of our Constitution.”85 Trenchard and first, during this period directly prior to the American Revolution, Gordon, writing as “Cato,” announced that “Freedom of Speech to suggest that freedom of the press was a key right that needed to is the great Bulwark of Liberty; they prosper and die together: And be guaranteed by a government. it is the Terror of Traytors and Oppressors, and a Barrier against In the decade after the adoption of the Virginia Declaration of them.”86 During the Stamp Act crisis, the royal governor requested Rights, Richard Henry consistently proclaimed the importance of the Massachusetts House of Representatives to take action against keeping a press free of government constraints. In arguing against a “seditious” newspaper. The legislature, dominated by radical the proposed United States Constitution without a bill of rights, , refused, quoting Cato: “The Liberty of the Press he wrote to Samuel Adams about the dangerous possibility of is the great Bulwark of the Liberty of the People: It is, therefore, government control of the press: the Incumbent duty of those who are constituted the Guardians of the People’s Rights, to defend and maintain it.”87 Writing in the Suppose that good men came first to the administration Boston Gazette, Samuel Adams suggested, “[T]here is nothing so of this government; . . . and the restraint of the press fretting and vexatious, nothing so justly TERRIBLE to tyrants, and would then follow for good purposes as it should seem, their tools and abettors, as a FREE PRESS.”88 However, in 1772, and by good men—But these precedents will be followed when the citizens of Boston famously issued a rather lengthy “Bill by bad men to sacrifice honest and innocent men; and of Rights,” again led by Samuel Adams, it included freedom of to suppress the exertions of the Press for wicked and religion as well as rights to personal property and liberty, but it did tyrannic purposes.”76 not include free press or speech.89 Writing about freedom of speech and of the press was common in the colonies by 1776, but there is Richard Henry was quite aware of the influence of the printed no evidence of anyone making a connection between the concept word, according to Philip Davidson: “He knew the power of the and the actual act of placing it within a bill of rights. press, bewailed the absence of any newspaper whatever in Virginia Just days before the writing of the free press clause in the for some months in 1781, and throughout the war regretted the Virginia bill of rights, an important letter appeared in Dixon & failure of the leaders to make use of what facilities they had for Hunter’s May 16, 1776 Virginia Gazette. Writing under a common reaching the people.”77 The reason a free press was so crucial, pseudonym of the time, “Civis” noted just how important press Richard Henry suggested, was that this new system of a republican freedom was: “[T]he LIBERTY of the PRESS is the palladium of government depended on a well-informed and enlightened public: our LIBERTIES.” Published just as a committee was considering “[H[ere arises the necessity for the freedom of the press, which is what to include in the new Declaration of Rights, this must be the happiest organ of communication ever yet devised, the quickest viewed as a strong suggestion that to guarantee liberty in the new and surest means, of conveying intelligence to the human mind.”78 state, freedom of the press must be included. We do not know Richard Henry wrote that it was essential “That the freedom of the who wrote this letter, but the Lee brothers are good probabilities, Press shall be secured,”79 and that “liberty of the press” was one of considering all of their work with the local press and their efforts the freedoms “so capital and essential, that they ought to be secured for a free press. by a bill of rights.”80 The Lees were intimately involved in all three of these major Brother Arthur Lee was also committed to freedom of the press steps towards press freedom in Virginia. First, Richard Henry Lee and the fight for a Bill of Rights. Just two years before Virginia was likely the main recruiter for a second, competitive, and pro- declared its independence, Arthur wrote back to the colonies that patriot printer. At the very least, this printer was housed in a home the British Parliament was hostile to American rights, and what owned by close relatives. Second, both Arthur Lee and Richard the colonies needed most was a “Bill of Rights.” In this letter to a Henry were active in publishing radical tracts that were critical fellow patriot in Massachusetts, he did not outline what these rights of the British government, discussed the need for a bill of rights, should include.81 Arthur was closely aligned with John Wilkes and and supported the idea for press freedom. Third, Thomas Ludwell his Bill of Rights Society in England, and their successful fight to Lee—and probably his brothers Richard Henry and Arthur—acted gain the right to report debates in Parliament.82 Arthur admired as a major force behind the writing of the clause enshrining the the controversial Wilkes: “Of courage, calm and intrepid, of a constitutional right to a free press. flowing wit, accommodating in his temper, of manners convivial and conversible, an elegant scholar, & well read in Constitutional he 1776 Virginia Declaration of Rights was the first time Law.”83 Arthur’s close support of Wilkes is strong evidence that that a bill of rights or a constitution guaranteed the right Arthur—and likely his brothers—did consider a free press to be to a free press. This precedent had a profound influence on essential. (Arthur and Richard Henry were close in their political Tthe subsequent state constitutions and—in turn—James Madison’s thinking, as can be seen in their many letters still extant.) First Amendment.90 In 1791, the states ratified what we now call There are many other important precedents to reference of free the Bill of Rights and freedom of the press became enshrined within press as a “bulwark of liberty,” the phrase used in the Declaration the United States Constitution. This important limitation on the of Rights. In the first issue of his radical newspaper, Wilkes wrote, power of government became a key to the balance of power in this

128 Journalism History 43:3 (Fall 2017) nation and a model for the world. The revolutionary difference criticism, especially during times of war. We have often chipped here is that instead of having the legislature and the executive away at that important ideal of allowing free and open debate. be the prime protectors of the rights of citizens, this created a Those precedents, however, do not undermine the original intent. model where a free press, supported by an independent judiciary They merely point to the need for such constitutional protection that could review any constitutional infringement, becomes the and for our constant support for those ideals. guardian. The legislature and executive no longer have the ultimate authority in protecting the people, leading to the great stability the NOTES United States has enjoyed.91 1 James Madison to Thomas Jefferson, Oct. 17, 1788, The James Madison Thomas Ludwell Lee actually penned the first draft of the Papers, 1723-1836, Library of Congress, Manuscript Division, microfilm, series 1, constitutional right to a free press, but it is not clear if he was merely reel 2, 10. functioning as a secretary for the additional articles to the Virginia 2 Richard Labunski, James Madison and the Struggle for the Bill of Rights Declaration of Rights or if the idea was his. If the composition (Oxford, U.K.: Oxford University Press, 2006), 158-65. See also William C. Rives, of this article was original to him, the historical record suggests History of the Life and Times of James Madison vol. 3 (Boston: Little, Brown and that his brothers had a strong influence upon its writing. Thomas Company, 1859-1868); and Irving Brant, James Madison: Father of the Constitution, Ludwell died at age forty-seven in 1778, not living long enough 1787-1800 (Indianapolis: Bobbs-Merrill, 1950). to see his new nation survive revolution or constitutional crisis. 3 Bernard Schwartz, The Bill of Rights: A Documentary History, (: He is nearly forgotten by history. Richard Henry Lee was closely Chelsea House Publishers with McGraw-Hill Education, 1971) 2:997-1008; and connected to the printer brought to the colony to create a free press, Labunski, James Madison, 198-201. 4 David S. Bogen, “The Origins of Freedom of Speech and Press,”Maryland he exercised his right to a free press by printing radical tracts that Law Review 42 no. 3 (1983): 429-65. certainly could have been considered seditious libel, and he wrote 5 Holmes, dissenting opinion, Abrams v. U.S., 250 U.S. 616 (1919). of the need for a free press in the emerging nation. He famously 6 Zechariah Chafee, Freedom of Speech (New York: Harcourt, Brace and Howe, opposed the United States Constitution while it was lacking a bill 1920), 23-35; and Zechariah Chafee, Free Speech in the United States (Cambridge, of rights and a free press guarantee. Arthur Lee was considered to Mass: Harvard University Press, 1941), 21-31. See also David A. Anderson, “The be the penman, press agent, or chief propagandist for the American Origins of the Free Press Clause,” UCLA Law Review 30, no. 3 (February 1983), Revolution. He was an early advocate for an American bill of rights, section IV. The Sedition Act of 1798 expired without a test of its constitutionality, he wrote early and often of the need for a free press, and he warned but in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court in essence ruled seditious libel unconstitutional. that a tyrannical leader might suppress such liberty. Arthur Lee was 7 a close ally of John Wilkes as he was prosecuted for sedition libel William Blackstone, Commentaries on the Laws of England (London: 1765- 1769; facsimile reprint, : University of Chicago Press, 1979), 4:151. and as he advanced the cause of press freedom in Great Britain. 8 Leonard Levy, Freedom of Speech and Press in Early American History: Legacy These three brothers clearly played an integral part in the creation of Suppression (New York: Harper & Row, 1963), ix. This 1963 edition of his 1960 of a free press clause in the Virginia Declaration of Rights and that original work, Legacy of Suppression: Freedom of Speech and Press in Early American it—in turn—was the prime inspiration for the press clause in the History (Cambridge, Mass.: Belknap Press of Harvard University Press, 1960), First Amendment. included some expansion and corrections, and may indeed mark the shifting of the This new evidence on the origins of the first free press clause author’s own opinion with the change in title. Suppression now comes second and leads to the conclusion that the original intent was to disallow freedom first. all government suppression of political criticism. This directly 9 Stephen A. Smith, “The Origins of the Free Speech Clause,”Free Speech Yearbook 29, no. 48 (1991): 48. See also Anderson, “Origins of Free Press,” section IV. contradicts Levy’s suggestion that what Madison had in mind 10 was simply a Blackstonian ban on prior restraint on publishing Leonard Levy, “On the Origins of the Free Press Clause,” UCLA Law Review 32 (February 1984): 177-218. by the government—a prohibition on government censorship or 11 The Idea of a Free Press: the Enlightenment and Its 92 David A. Copeland, licensing —and that George Mason wrote the clause by himself, Unruly Legacy (Evanston, Ill.: Northwestern University Press, 2006), 75-90, 226. 93 and that there were no public calls for press freedom. It is clear 12 Harold A. Innis and Mary Q. Innis, Empire and Communications (Toronto: that Mason did not write this clause and that there was indeed University of Toronto Press, 1972), 153; and Peter Laslett, ed., in John Locke, Two strong public support in Virginia for a guarantee of a free press. The Treatises of Government (Cambridge, U.K.: University Press, 1960), 7. Locke had an colonial struggles for press freedom—including the famous Peter opportunity to give constitutional protection to free press and speech when he co- Zenger trial in 1735,94 and the direct connection between John authored a constitution for the colony of Carolina, but it contains no such clause. Wilkes’ struggles to freely criticize the government and colonial In fact, “The Fundamental Constitutions of Carolina” included licensing of the press liberty—contradict Levy’s theory that seditious libel was not press as part of the law as a function of the “councillor’s court.”See John Locke [and part of the original meaning. The involvement of Arthur Lee, the Lord Ashbury, the Third Earl of Shaftesbury],The Fundamental Constitutions of Carolina (March 1, 1669), article 35. high level of interest in the example set by Wilkes, and the efforts 13 John Milton, Areopagitica and of Education, ed. George H. Sabine (New made by the radical Virginia colonists to have a press that could York: Appleton-Century-Crofts, 1951), 49. also freely criticize the government all suggest that the intent of the 14 Copeland, Idea of a Free Press, 83-85. free press clause in the Virginia Declaration of Rights was indeed to 15 Thomas L. Tedford and Dale A. Herbeck,Freedom of Speech in the United prevent all suppression of political speech; to disallow prosecution States, 4th ed. (State College, Pa.: Strata Publishing, Inc., 2001), 13-17. for seditious libel. As this was the primary inspiration for the free 16 Roger P. Mellen, The Origins of a Free Press in Prerevolutionary Virginia: Creating press clause in the federal Bill of Rights, it would then follow that a Culture of Political Dissent (Lewiston, N.Y.: Edwin Mellen Press, 2009), 284. the intent there was also to allow free criticism of the government. 17 Stratford Hall is perhaps best known as the birthplace of Robert E. Lee, Of course, it is one thing to argue for free press when you are the son of Henry “Light Horse Harry” Lee, whose father was a second cousin to Philip, opposition to the government, and another thing to support a Thomas Ludwell, Richard Henry, and Arthur Lee. 18 Oliver Perry Chitwood, Richard Henry Lee: Statesman of the Revolution boisterously free press when you are in power and thus are the one (Morgantown: West Virginia University Library, 1967), 7. Mary Elizabeth Virginia, being criticized. Beginning with the Sedition Act of 1798, there has “Richard Henry Lee of Virginia: A Biography” (PhD diss., State University of been an unfortunate tradition in this country of not allowing free New York at Buffalo, 1992). http://leearchive.wlu.edu/reference/theses/virginia/

Journalism History 43:3 (Fall 2017) 129 index.html, quoting John Adams to Lee, Aug. 11, 1819, The Works Competition in Pre-Revolutionary Virginia,” Journalism History 35, no. 3 (Fall of John Adams, ed. C. F. Adams (Freeport NY: Books for Libraries Press, 1969), 2009): 151-61; and Laurie E. Godfrey, “The Printers of the Williamsburg Virginia 10:382; and , (Charlottesville: Published for Gazettes, 1766-1776: Social Controls and Press Theory” (PhD diss., Regent the Virginia Historical Society [by] University Press of Virginia, 1970), 191-92. University, 1998), 249-50. This contemporary history, written before 1813, was first published in serial form 32 Randolph, and Johnston, “Edmund Randolph’s Essay,” 124-25. See also in Edmund Randolph and Rebecca Johnston, “Edmund Randolph’s Essay on the Godfrey, Printers, 248. Revolutionary History of Virginia (1774-1782),” Virginia Magazine of History and 33 Richard Henry Lee to , Feb. 24, 1766, Lee Family Papers, Biography 44 (1936): 43-47. Virginia Historical Society, Section 129, Mss1 L51 f 533-549. (Also in Ballagh, 19 One clause of the Virginia Declaration of Rights is considered “first Letters of Richard Henry Lee, 1:14-15.) explicit legal sanction for a free press,” and most historians assume that George 34 Richard Henry Lee to Landon Carter, Sept. 20, 1766, Lee Family Papers, Mason composed this along with most of the other articles within this. As Mason’s Virginia Historical Society, Section 129, Mss1 L51 f 533-549. (Also in Ballagh, biographer, Robert Rutland notes, the first known draft of the free press clause Letters of Richard Henry Lee, 1:12.) was in Thomas Ludwell Lee’s handwriting, added after a committee discussion, 35 Richard Henry Lee to William Lee, July 7, 1770, Lee Family Papers, Virginia and it is not clear who composed it. From George Mason The Papers of George Historical Society, Section 129, Mss1 L51 f 533-549. (Also in Ballagh, Letters of Mason, 1725-1792, ed. Robert Rutland (Chapel Hill: University of Richard Henry Lee, 1:46.) Press, 1970), 1:278. See also Irving Brant, James Madison: The Virginia Revolutionist 36 Mary Stephenson, Ludwell-Paradise House Historical Report, Block 18-1 (Indianapolis: Bobbs-Merrill, 1941) 1:234-37. This connection will be developed Building 7 Lot 45 (Williamsburg, Va.: Foundation Library, more completely later in this article. 1948), 6-7. 20 An unfortunate accident from gun misfire while hunting swans in 1768 left 37 Rind’s Virginia Gazette (Williamsburg: William Rind, May 16, 1766), 1. RHL with no fingers on his left hand, a misfortune that he apparently put to good The original is at the New York Historical Society. A handwritten editorial note on use. From Richard Henry Lee [the elder Richard Henry Lee’s grandson], Memoir this only extant copy added “and the first [well-conducted newspaper] that has ever of the Life of Richard Henry Lee, and his Correspondence with the Most Distinguished been Established in this Province,” a comment that reinforced the idea that many Men in America and Europe … (Philadelphia: H.C. Carey and I. Lea, 1825), 54 & in Virginia felt the need for a newspaper free of censorship. The newspaper title was 251-2, and Chitwood, Richard Henry Lee, 46. soon changes to simply Virginia Gazette, sharing that name eventually with as many 21 Chitwood, Richard Henry Lee, 10-11. as four other newspapers. 22 Ibid., 11; and Louis W. Potts, Arthur Lee, a Virtuous Revolutionary (Baton 38 Virginia Gazette (Williamsburg: Alexander Purdie, March 28, 1766), 3. Rouge: Louisiana State University Press, 1981), 278. 39 “Philanthropos,” Virginia Gazette (Williamsburg, Va.: Purdie and Dixon, 23 Richard Henry Lee to Hannah Lee Corbin, March 17, 1778, in The Letters Aug. 22, 1766), 1. Woody Holton, Forced Founders: Indians, Debtors, Slaves, and of Richard Henry Lee, ed. James Curtis Ballagh (New York: De Capo Press, 1970), the Making of the American Revolution In Virginia (Chapel Hill: University of 1:390-94. Virginia, “R. H. Lee: Biography”; and Louise Belote Dawe and Sandra North Carolina Press, 1999), 70, n. 49; and Gary Nash, The Unknown American Gioia Treadway. “Hannah Lee Corbin: The Forgotten Lee,”Virginia Cavalcade 29, Revolution: The Unruly Birth of Democracy and the Struggle to Create America (New no. 2 (Autumn 1979): 70-78. York: Viking, 2005), 116, state that Arthur Lee wrote as Philanthropos. 24 Governor Sir William Berkeley responded to “Enquiries to the Governor 40 “Philanthropos” [Arthur Lee], Virginia Gazette (Williamsburg, Va.: Rind, of Virginia,” submitted by the Lords Commissioners of Trade and Plantations in March 19, 1767), no longer extant, quoted in Colonial Williamsburg Foundation, London, from “Inquisitions, &c. 1665 to 1676,” 239, quoted in William Hening, Enslaving Virginia: Becoming Americans, Our Struggle to be Both Free and Equal The Statutes at Large; Being a Collection Of All the Laws of Virginia, from the First (Williamsburg, Va.: Colonial Williamsburg Foundation, 1999). Session of the Legislature in the Year 1619 (New York: Printed for the editor, 1819-23. 41 Gary Nash, Race and Revolution (Madison, Wis.: Madison House, 1990), Facsimile reprint, Charlottesville: Published for the Jamestown Foundation of the 92-96, 115-116, and 467, n. 42; and Richard K. MacMaster, “Arthur Lee’s ‘Address Commonwealth of Virginia by the University Press of Virginia, 1969), 2:511-17. on Slavery’: An Aspect of Virginia’s Struggle to End the Slave Trade, 1765-1774,” Emphasis in original. The Virginia Magazine of History and Biography80, no. 2 (1972): 141-57. 25 The date was February 1682 by the old Julian calendar, 1683 by the Gregorian 42 Alvin Richard Riggs, “Arthur Lee and the Radical Whigs, 1768-1776” calendar, adopted in 1752. Douglas McMurtrie, The Beginnings of Printing in (PhD diss., Yale University, 1967), 17, Library of Virginia. Virginia (Lexington, Va. [Printed in the Journalism Laboratory of Washington and 43 Old Member of Parliament [Arthur Lee], An Appeal to the Justice and Lee University], 1935), 6-7; and Lawrence Wroth, A History of Printing in Colonial Interests of the People of Great Britain in the Present Disputes with America (London: Maryland, 1686-1766 (Baltimore: Typothetae of Baltimore, 1922), 1. Printed for J. Almon, 1774), 1. 26 Douglas C. McMurtrie, A History of Printing in the United States; The Story of 44 Riggs, “Arthur Lee and the Radical Whigs,” preface. the Introduction of the Press and of Its History and Influence During the Pioneer Period 45 Arthur Schlesinger, Prelude to Independence: The Newspaper War on Britain, in Each State of the Union (New York: R. R. Bowker Company, 1936), 276-306; 1764-1776 (Westport, Conn.: Greenwood Press, 1957), 113. McMurtrie, Beginnings of Printing in Virginia, 15-21; Wroth, History of Printing in 46 Roger P. Mellen, “John Wilkes and the Constitutional Right to a Free Press ] Maryland, 55-87; and Journals of the House of Burgesses (June 10, 1732), 6:141-42. in the United States,” Journalism History 41, no. 1 (Spring 2015): 2-10. 27 Edmund Morgan and Helen Morgan, The Stamp Act Crisis: Prologue to 47 Richard Henry Lee [the elder Richard Henry Lee’s grandson], and Arthur Revolution (1953; revision, Chapel Hill: University of North Carolina Press, 1995), Lee, Life of Arthur Lee, LL. D., joint commissioner of the United States to the court 102; and Francis G. Walett, “The Impact of the Stamp Act on The Colonial Press,” of , and sole commissioner to the courts of Spain and Prussia, during the in Donovan Bond and W. Reynolds McLeod, eds., Newsletters to Newspapers: Revolutionary War. With his political and literary correspondence and his papers on Eighteenth-Century Journalism, Papers Presented at a Bicentennial Symposium at diplomatic and political subjects, and the affairs of the United States during the same West Virginia University, Morgantown, West Virginia March 31-April 2, 1976 period (1829; repr., Freeport, N.Y.: Books for Libraries Press, 1969), 22. Later, when (Morgantown, W.V.: School of Journalism, 1977), 163. Arthur Lee was secretary, the name was changed to Society for the Bill of Rights. 28 “A Virginian,” letter to the Maryland printer, A Supplement to the Maryland See Potts, Arthur Lee, 59-64. Gazette of Last Week (Annapolis: Jonas Green, Oct. 17, 1765), 1. 48 Arthur Lee and John Dickinson, The Farmer’s and Monitor’s Letters, 29 “A Man of Principle,” letter to the printer, Virginia Gazette (Williamsburg, to the Inhabitants of the British colonies. With a forward by Richard Henry Lee. Va.: Purdie & Dixon, Aug. 22, 1766), 2. (Williamsburg: William Rind, 1769.) Schlesinger, in Prelude to Independence, 125, 30 Francis Fauquier to the Board of Trade, Williamsburg, April 7, 1766, suggests that these pamphlets were so popular that they could not be printed fast handwritten transcription, Great Britain PRO CO 5, container v. 1331:97-106 enough to keep up with demand. The cover to Thomas Jefferson’s copy in the Library [137-48], Library of Congress, Manuscript Reading Room. As lieutenant governor, of Congress has a handwritten note that this was written “By John Dickinson and Fauquier and many of his predecessors ruled the colony while the actual royal Arthur Lee,” confirming them as the authors behind the pseudonyms “Farmer” and governors were absentees back in Great Britain merely collecting the salary. the “Monitor” respectively. 31 Roger P. Mellen, “Thomas Jefferson and the Origins of Newspaper 49 Virginia Gazette (Williamsburg: William Rind, February 25-April 28, 1768).

130 Journalism History 43:3 (Fall 2017) 50 “Monitor” [Arthur Lee], Virginia Gazette (Williamsburg: William Rind, Dunlap, [circa. April 10,] 1776); and John E. Selby, “Richard Henry Lee, John March 17, 1768), 1; and Arthur Lee, The Farmer’s and Monitor’s Letters, 72-73.The Adams, and the Virginia Constitution of 1776,” The Virginia Magazine of History last part of this is from several places in the Bible, including 1 Kings 4:25. and Biography 84, no. 4 (1976): 387-400. 51 Richard Henry Lee, Farmer’s and Monitor’s Letters, i-ii. 71 Chitwood, Richard Henry Lee, 71. 52 Richard Henry Lee, “The State of the Constitution of Virginia,” [1769?] 72 Letter to the Inhabitants of the Province of Quebec, 1774, by the First Virginia Historical Society, Lee Family Papers, Mss1 L51 f 378. There is no date Continental Congress, Journals of the Continental Congress 1774-1789 (Washington, on this unpublished manuscript, the EncyclopediaVirginia.org at http://www. D.C.: G.P.O., 1774), 1:105-13. Boldface type in original. encyclopediavirginia.org/lee_richard_henry_1732-1794#start_entry suggests 73 Robert Rutland, The Birth of the Bill of Rights, 1776-1791 (Chapel Hill: 1769. Kent McGaughy, Richard Henry Lee of Virginia: Portrait of an American Published for the Institute of Early American History and Culture by the University Revolutionary (Lanham, Md.: Rowman & Littlefield, 2004), 70, n. 47 suggests of North Carolina Press, 1955), 29. about 1767. 74 John Adams, diary entry, Oct. 4, 1774, in John Adams and Charles Francis 53 Bernard Schwartz, ed., The Bill of Rights: A Documentary History (New Adams, The Works of John Adams, Second President of the United States: With a Life of York: Chelsea House in association with McGraw Hill, 1971), 1:231; and T. Daniel the Author, Notes and Illustrations (Boston: Little, Brown, 1850) 2:392. Shumate, The First Amendment: The Legacy of George Mason (Fairfax, Va.: George 75 Paul Leicester Ford, “Some Materials for a Bibliography of the Official Mason University Press, 1985), 12. Publications of the Continental Congress, 1774-1789,” from Bulletin of the Public 54 The convention minutes do not include details of the committee debates Library of the City of Boston, 8:321, n. 7. or motions on the Declaration of Rights. See John Tazewell [clerk, MS minutes], 76 Richard Henry Lee to Samuel Adams, Oct. 5, 1787, in Ballagh, Letters of Proceedings of the Convention of Delegates Held at the Capitol, in the City of Richard Henry Lee, 2:444-47. Williamsburg, in the Colony of Virginia, on Monday the 6th of May, 1776, Virginia State 77 Philip Davidson, Propaganda and the American Revolution: 1763-1783 Library, archives division, microfilm reel 618, plus additional notes by assistant clerk (Chapel Hill: University of North Carolina Press, 1941), 18-19. Jacob Bruce, microfilm reel 618M. Also see the printed version, Proceedings of the 78 Richard Henry Lee, Chantilly, to , May 22. 1788, from Convention of Delegates Held at the Capitol, in the City of Williamsburg, in the Colony Ballagh, Letters of Richard Henry Lee, 2:469-74. of Virginia, on Monday the 6th of May, 1776 (Williamsburg: Alexander Purdie, 1776); 79 RHL to Dr. William Shippen, Jr., Oct. 2, 1787 [proposed amendments and Brent Tarter and Robert L. Scribner, eds., Revolutionary Virginia; The Road to to the Federal Constitution] in Ballagh, Letters of Richard Henry Lee, 2:442, from Independence (Charlottesville: University Press of Virginia, 1981-83), 7:9-604. Shippen Collection. 55 George Mason to Richard Henry Lee, Williamsburg, May 18, 1776, 80 RHL to Edmund Pendleton, May 22, 1788 in Ballagh, Letters of Richard Archives of the Virginia Historical Society, Lee Family Papers: 1638-1867. Mss1 Henry Lee, 2:469-71. L51 f 367. 81 Arthur Lee to , Dec. 6, 1774, Public Records Office, 56 Edmund Pendleton [president of the convention], Williamsburg, to London, Colonial Office, 5/118, ff. 92-3. This letter and others that Benjamin Thomas Jefferson, May 24, 1776, in The Papers of Thomas Jefferson, ed. Julian P. Franklin sent to Cushing, were seized by the British by General Gage, according Boyd (Princeton: Princeton, N.J.: University Press, 1950-), 1:296; and “Essay on to Merrill Jensen, The Founding of a Nation: a History of the American Revolution, the Revolutionary History of Virginia,” 43-47. 1763-1776 (Indianapolis: Hackett, 2004), 420, n. 67. 57 Brant, James Madison: Virginia Revolutionist, 1:235-37. Brant suggests that 82 Riggs, “Arthur Lee and the Radical Whigs,” 134-38. this first draft by Mason, with Thomas Ludwell Lee’s addition of three articles, was 83 Arthur Lee, Memoir (unfinished), fromThe Lee Family Papers, 1742- sent by Lee to his brother Richard Henry, that Jefferson saw this version, and that 1795, eds. Paul P. Hoffman and John L. Molyneaux (Charlottesville, University of it in turn influenced the writing of the Declaration of Independence. This draft, Virginia Library, 1966) reel 8. which somehow ended back in Mason’s papers, had as its eleventh article, “That 84 The North Briton (London: John Wilkes, June 5, 1762), 1. the freedom of the press, being the great bulwark of Liberty, can never be restrained 85 The Craftsman (London: Richard Francklin, Dec. 9, 1726, June 24, 1727, but in a despotick Government.” From George Mason, The Papers of George Mason, Sept. 28, 1728, and Nov., 1728), quoted in Jeremy Black, The English Press in the 1725-1792, ed. Robert Rutland (Chapel Hill: University of North Carolina Press, Eighteenth Century (Philadelphia: University of Pennsylvania Press, 1987), 125. 1970), 1:278. 86 [John Trenchard and Thomas Gordon], “Cato’s Letter No. 15,” Cato’s 58 Rutland, Papers of George Mason, 1:288. Letters; Essays on Liberty, Civil and Religious, and Other Important Subjects (London: 59 Tarter and Scribner, Revolutionary Virginia, 7:277, n. 21, suggest that: “The Printed for W. Wilkins, T. Woodward, J. Walthoe, and J. Peele, 1723-24; reprint, committee added this article” [on press freedom.] New York: Da Capo Press, 1971), 1:100. 60 Tarter and Scribner, Revolutionary Virginia, 7:2. 87 Alden Bradford, ed., Speeches of the Governors of Massachusetts from 1765- 61 Rutland in Papers of George Mason, 1:281 notes that although it is in 1775 (Boston: Russell and Gardner, 1818), 119. Thomas Ludwell Lee’s handwritten addition to Mason’s draft, “it is hazardous to say 88 [Samuel Adams], Boston-Gazette, and Country Journal, (Boston: Edes & categorically that [it] originated either with Lee or GM.” Gill, March 14, 1768), 2. 62 RHL to Thomas Ludwell Lee, Philadelphia, May 28, 1776, from a printed 89 [Samuel Adams and Joseph Warren?] “Boston Committee of Correspondence, text in New York Historical Society Collection, The Lee Papers, II 47, from Ballagh, The Votes and Proceedings of the Freeholders and other Inhabitants of the Town of Letters of Richard Henry Lee, 1:196. Boston in Town Meeting assembled According to Law,” (Boston: Edes and Gill, in 63 Virginia Declaration of Rights. Queen-street, and T. and J. Fleet, in Cornhill, 1772). 64 [English] Bill of Rights, 1689. 90 Shumate, The First Amendment, 9-12. 65 Virginia Declaration of Rights, original draft, George Mason Papers: 1754- 91 Frederick Schauer, “Free Speech and Its Philosophical Roots,” in Shumate, 1921, Library of Congress, Madison Building, Manuscript Reading Room, ed., First Amendment, 132-49. MSS31583; and Rutland, Papers of George Mason, 1:278. 92 Leonard Levy, Emergence of a Free Press (New York: Oxford University Press, 66 Rutland, Papers of George Mason, 1:65-72. 1985), ix and xviii; and Blackstone, Commentaries on the Laws, 4:151. 67 Ibid., 1:314. 93 Levy, “Origins of the Free Press Clause,” 177-218. 68 George Mason to RHL, May 18, 1776, George Mason Papers, Library of 94 Copeland, Idea of a Free Press, 153-61; Robert W.T. Martin, The Free Congress. and Open Press: The Founding of American Democratic Press Liberty, 1640-1800 69 Thomas Ludwell Lee to RHl, May 18, 1776, Library of Virginia, Archives (Albany: New York University Press, 2001), 47-60; David Paul Nord, Communities and Manuscript room, call number 22868. of Journalism: A History of American Newspapers and their Readers (Urbana and 70 Richard Henry Lee, Government Scheme (Philadelphia: N.p. [April 10], Chicago: University of Press. 2001), 65-76; and Leonard Levy, Freedom of 1776), reprinted in the Virginia Gazette (Williamsburg: Purdie, May 10, 1776), the Press from Zenger to Jefferson; Early American Libertarian Theories (Indianapolis: 4. [John Adams] Thoughts on Government: Applicable to the Present State of the Bobbs Merrill, 1966), 13-30. American Colonies. In a Letter from a Gentleman to his Friend. (Philadelphia: John

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