CHAPTER IV (_Concluded_)
THE LIBERTY OF THE PRESS IN NEW YORK
In the fall of 1767 a pamphlet of which a few copies were reprinted from a London edition, appeared in New York and created considerable excitement. It was entitled “The Conduct of Cadwallader Colden, Esq. Lieutenant-Governor of New York, relating to the judges’ commissions:—Appeals to the King; and Stamp Duty.” It had been presented by the grand jury in October as a libellous reflection on the Council, the Assembly and the Courts of Justice in the province of New York, and, as its sub-title would indicate, was a defense of Colden’s conduct, when acting as Governor. In the course of the argument reference was made to the action of the two branches of the Assembly in these matters, and both bodies took umbrage and appointed a joint committee to investigate, and if possible discover, the author and the person responsible for the republication in New York.[3]
The committee carried on its work with vigor, summoning among others the printers of the province and also Colden’s son and son-in-law,[4] and the matter finally ended in a report by the committee to the General Assembly and the adoption of the following resolutions.[5]
“Resolved, ... That the said pamphlet highly reflects upon the honor, justice and dignity of his Majesty’s Council, the General Assembly, and the Judges of the Supreme Court; and contains the most malignant aspersions, upon the inhabitants of this colony in general.
Resolved, That the said pamphlet tends to destroy the confidence of the people, in two of the branches of the legislature, and the officers concerned in the due administration of justice; to render the government odious and contemptible, to abate that due respect to authority, so necessary to peace and good order, to excite disadvantageous suspicions and jealousies in the minds of the people of Great Britain, against his Majesty’s subjects in this colony, and to expose the colony in general, to the resentments of the crown and both houses of Parliament.
Resolved, That as the House has not been able to discover the author of the said pamphlet, a dissolution of the general assembly is speedily expected; his Excellency the Governor be humbly requested, in case the author should hereafter be discovered, to order a prosecution to be issued against him, that such punishment may be inflicted on so great an offender as the law directs.”
This is an instance where neither branch of the Assembly can force an avowal of authorship from those who are suspected; a little later we shall find in the Parker-McDougall case that the Governor and Council did not consider it beneath their dignity to resort to very questionable actions when they were trying to find the person responsible for a pamphlet which displeased them.
It is not necessary to enter here on the details of the circumstances which finally led to the repeal of the Stamp Act and the passage of the Mutiny Act.[6] The more extreme party had viewed with great disquietude the passage of the latter act, and the way in which the Assembly had yielded in the matter of meeting its provisions. When the Governor, Sir Henry Moore, died on Sept. 11th, 1769 and Lieutenant-Governor Colden once more took up the reins of government, the feeling was intensified, and on Dec. 16th, two printed papers appeared, the first signed “A Son of Liberty,” and the second “Legion” in which “the betrayed inhabitants of the City and Colony of New York” were invited to meet on the following Monday at the House of De La Montayne in the Fields near the City, and there take steps to set forth their rights and vindicate the privileges which the Assembly seemed unable to successfully assert.
At this meeting which was largely attended a speech was made by John Lamb a prosperous merchant of the city.
Meanwhile the Assembly had had its attention called to the papers and had declared the first to be “false, seditious and infamous,” and had branded the second as “an infamous libel,” and had requested the Lieutenant-Governor to issue his proclamation, offering a reward of £100 for the discovery of the author.[7] After the meeting in the Fields the Assembly ordered Lamb to appear before it, and examined him as to “his conduct about the two libels” but as it did not appear that his actions at the Fields had been in consequence of the two libels he was allowed to depart.[8] But the Assembly had not given up all hope of finding and prosecuting the author of the two pamphlets. One of Parker’s journeymen for the sake of the reward, gave information against him, and on Feb. 7th Parker was arrested and examined by the Governor and Council. While the latter was detained in a room off the Council Chamber, his apprentices were arrested, and brought before the Council, and although for a long time they stoutly refused to admit any knowledge of the papers, one of them by gross intimidation was finally brought to admit that the papers had been printed in his master’s office.
Parker was then brought back before the Council, told that his apprentice had admitted that it had been printed by him, and threatened, in case he refused to name the author, with the loss of his position as Secretary of the Post Office. Finally Parker, being promised indemnity, gave information which resulted in the arrest on a bench warrant of Alexander McDougall, who was taken before the Chief Justice, and on refusal to admit the fact of authorship, committed to prison.
Some seven years before this, in 1763, John Wilkes, member of Parliament, and editor of the “North Briton” had been arrested on a general warrant for having attacked in No. 45 of his journal the Bute administration and abused the King, charging the latter with falsehood. Wilkes was discharged on the ground of parliamentary privilege, and the question being carried before the Chief Justice, Lord Camden, the latter declared general warrants to be illegal. Wilkes was expelled by a subservient Parliament, but was regarded by great numbers in the nation as a martyr to the cause of liberty and freedom of discussion.
Now it happened that the vote of the Assembly declaring the hand bills libellous had been printed on the forty-fifth page of the journal. For either this reason, or more probably because of No. 45 of the “North Briton” (which number was often used as a party-cry in England), “Forty-five” became the watchword of the Sons of Liberty, at this time a numerous body. McDougall was overrun with visitors at the jail and was forced to issue in the “New York Weekly Journal” for Feb. 15th, a card to his friends in which he appointed the hours from three to six in the afternoon to receive them.
In the same number of the Journal appears an account of one of these receptions:
“Yesterday, the forty-fifth day of the year, forty-five gentlemen, real enemies to internal taxation, by, or in obedience to external authority, and cordial friends to Capt. McDougall, and the glorious cause of American liberty, went in decent procession to the New Gaol; and dined with him on forty-five pounds of beef, cut from a bullock of forty-five months old, and with a number of other friends who joined them in the afternoon, drank a variety of toasts, expressive not only of the most undissembled loyalty, but of the warmest attachment to Liberty, its renowned advocates in Great Britain and America, and the freedom of the press. Before the evening the whole company, who conducted themselves with great decency, separated in the most cordial manner, but not without the firmest resolution to continue united in the glorious cause.” In April he was indicted by the Grand Jury for libel, and being brought to the bar pleaded not guilty and was admitted to bail.
While matters were in this condition the Assembly again took the matter up. On Dec. 13, 1770, the Speaker was directed to order McDougall to attend at the Bar of the House to answer a complaint made against him by Mr. De Noyellis for being the supposed author or publisher of the paper signed “A Son of Liberty.”[9] On his attending, McDougall was asked whether he was or was not the author of the paper. He replied “That as the grand jury and house of Assembly had declared the paper in question to be a libel, he could not answer the question. Secondly, that as he was under prosecution in the Supreme Court, he conceived it would be an infraction of the laws of Justice to punish a British subject twice for one offense, for that no line could be run, that he might be punished without end; but he would not be understood to deny the authority of the house to punish for a breach of privilege, when no cognizance is taken of it in another Court.”
The Assembly decided that this was a contempt of the authority of the house, and, since he refused to ask pardon of the house, he was ordered into the custody of the Sergeant-at-Arms, and placed in the county jail.
A writ of Habeas Corpus was sued out before the Court of Justice, whereupon the sheriff notified the house and asked what he should do. A committee was appointed on Jan. 22d, 1771, “to search the journals of the house of Commons, for precedents in cases where writs of habeas corpus have been issued, to bring persons committed by the Commons before other Courts.” The committee reported on Feb. 16, that several precedents had been found, which precedents were ordered printed in the Journal of the House. It was also determined that the sheriff should be indemnified for his action in not obeying the order of the Court.
The Assembly was prorogued on March 4, 1771, and did not come together till Jan. 7, 1772, and we hear no more of the McDougall affair. About this time Parker died and as he was the principal witness in the case it was probably considered useless to bring up the indictment before the Court.
From this time on, pamphlets, opposing the Crown and its policy of repression, continued to appear in ever increasing number, but the government made no serious sign of opposition, and seemed to have given up in despair the attempt to control a press which the majority of the people warmly supported.