1. Introduction
The final major area of suppression of free speech and press in the first half of the nineteenth century includes the statutes in virtually all the slaveholding states criminalizing discussion of the legitimacy of slavery. Although occur- ring some decades after the period of intense political controversy featured by the partisan manipulation of the criminal libel law, the statutes criminalizing discussion of slavery or abolition and the cases under them are, nevertheless, still relevant in presenting insight into the jurisprudential thinking of the times.66 In addition, they corroborate the predominant role of states’ rights rather than free speech as the fundamental motivation underlying the oppo- sition to the Sedition Act by the Jeffersonian South during the earlier struggle between the Federalists and Republicans at the turn of the century.
The Southern statutes prohibiting challenges to slavery had several com- ponents. They did not stop with the criminalization of anti-slavery speech.
Some of the slave state statutes, as in Maryland and Virginia, also included provisions seeking to prevent the use of the mails for the distribution of news- papers containing articles advocating the abolition of slavery. Furthermore, a number also prohibited the submission of petitions to the legislatures dealing with slavery, its abolition, or slave emancipation. As we will see, these repres- sive measures were matched in some measure in federal law and practice.
On the legitimacy of petitions respecting slavery, the slave state representa- tives and sympathizers in the House of Representatives were able to force the adoption in1837of a “gag” rule prohibiting the filing of anti-slavery petitions with the Congress. The “gag” rule survived until1844, when John Quincy Adams after a herculean effort was able to bring it to an end. As for the mails,
66 For general discussions of this area,seeClement Eaton,The Freedom-of-Thought Struggle in the Old South(1940, repr.1964) (hereinafter Eaton); Russel B. Nye,Fettered Freedom: Civil Liberties and the Slavery Controversy 1830–1860(1963) (hereinafter Nye); Michael K. Curtis, Free Speech: “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History, ch.5(2000) (hereinafter Curtis,Free Speech); Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in1835–1837,89Nw. Univ. L. Rev.785(1995) (hereinafter Curtis, Curious History); Curtis, The1859Crisis over Hinton Helper’s Book, The Impending Crisis: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment,68Chi-Kent L. Rev.1113(1993) (hereinafter Curtis, The1859Crisis).
as we will see, indulgent federal administrations actually encouraged federal Postmasters to respect the repressive local statutes.
Although lacking the venerable legal antecedents of the sedition laws, the anti-abolition statutes are manifestly much closer to the criminal libel experience than the blasphemy decisions. Unlike blasphemy, criminal libel and the anti-abolition measures involved sensitive political areas in which political, moral, and even economic concerns ran deep, human passions ran high, the potential for violent aftermath was strong, and security of the state was perceived to be at stake. However, a common element united all three.
Each presented potential incitement of breaches of the peace.
At the outset of the discussion of the slave state statutes buttressing slav- ery by criminalizing express or implied criticism, it is important to note that although the statutes were common, the number of prosecutions were few, and the actual convictions even fewer. Even then, in several celebrated cases in which convictions were achieved, matters were ultimately resolved not by imprisonment or other punishment as provided in the statute, but alterna- tively by the convicted defendant simply leaving the state.67 Although one may be tempted to explain this anomaly by noting that the defendants in some of the cases resolved by “banishment” were not radical abolitionist incendi- aries but clergymen seeking to preach what they believed to be teachings of Christianity, this is not a fair description. Thus in theBurrittandGarrison cases, there was no acquiescence in exile for ministers. Instead, the defen- dants were publishers of Northern origins abandoning their newspapers and other property and fleeing to safer jurisdictions out of fear for their person and freedom.
2. The Experience in the Slave States
a. Anti-Abolition Statutes
Commencing with adoption by Georgia in 1804 of a statute “to prevent the Insurrection of Slaves” making unlawful any communication with a slave
“tending to incite slaves to sedition, tumult, or disorder,”68numerous states in which slavery played a significant role enacted comparable statutes, including
67 The Georgia jurisprudence, which was not involved in any of the leading cases of this type, provides an interesting comparative parallel. Unlike the statutes of other states such as North Carolina where convictions ultimately resulted in “exile,” the Georgia statute actually provided for “banishment” as the sole punishment for the first offense. It went on to escalate the penalties to long-term imprisonment for the second, and death for the third offense.SeeGa. Laws, Act of May19,1804(1804).
68 Ga. Act of May19,1804.
Suppression of Anti-Slavery Speech 339 Alabama, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia.
Although Georgia and South Carolina enacted such statutes shortly after the turn of the century, the balance of the slave states did not follow suit until the 1820s and 1830s following a series of violent slave outbreaks and an intensification of radical abolitionist activities.69 The concern with the possibility of bloody slave insurrection following Denmark Vesey’s abortive slave insurrection in South Carolina in1822, Nat Turner’s revolt in1831, and the increased reports of slave conspiracies created an atmosphere receptive to the enactment of such statutes. The increase in the Southern activities of abolitionists, particularly the widespread circulation in the South of David Walker’s incendiaryAppeal to the Colored People of the World, appears to have outraged much Southern public opinion, and adoption of criminal statutes by the states theretofore lacking such statutes quickly followed.70
Walker’s Appeal was the leading abolitionist handout, with three large- scale printings. It advocated militant resistance and immediate emancipation and was viewed as a call to immediate slave revolt. Possession of copies of the Appeal appears and reappears in the accounts of the cases and was a precipitating factor leading to prosecution and conviction under the statutes criminalizing anti-slavery speech.71
69 Seethe Message of the Governor to the Legislature of Virginia, reported in the SalemGazette, Dec.20,1831, reporting on the death of61persons in a slave outbreak in Southampton, Va., in Aug.1831) (“there is too much reason to believe those plans of treason, insurrection and murder, have been designed. Planned and matured by unrestrained fanatics in some of the neighboring States, who find facilities in distributing their views and plans amongst our population, either through the post office or by agents sent for that purpose throughout our territory.”)See alsothe PittsfieldSun, Sept.10,1835, reporting that an abolitionist named James F. Otis was arrested in Virginia “and came within a hair space of beingLynched.”
70 David Walker,Appeal to the Colored People of the World(1829) (hereinafterThe Appeal). The Appealwas reprinted in1831inThe Liberator, William Lloyd Garrison’s abolitionist newspaper.
On Aug.28,1830, theFarmers’ Cabinetreported a report that a Wilmington, N.C., insurrec- tionary conspiracy involving a bartender named James Cowan and others had been uncovered.
Cowan is said to have had a large number of Walker’s “incendiary pamphlets and to have made use of his profession for their “more efficient distribution.”
71 Aptheker collected a number of such episodes. One was the report of Governor Forsyth of Georgia to the Legislature that the pamphlet had been distributed in the state and that the Savannah police had seized sixty copies. A number of1830episodes and prosecutions centered on possession or circulation ofThe Appeal. These included Elijah Burrritt in Milledgeville, Ga., discussed below;
the discovery of30copies in Richmond in the home of Thomas Lewis, a free black; the arrest and conviction in Charleston, S.C., involving Edward Smith, discussed below; the conviction in Louisiana of James Smith, discussed below; and the imprisonment in1829or1830of two missionaries to the Cherokees, Worcester and Butler, for possession ofThe Appealand admitting colored children to their school.SeeHerbert Aptheker,Abolitionism: A Revolutionary Movement 98–99(1989) (hereinafter Aptheker).
The Southern movement toward criminalization of anti-slavery speech and press was also intensified by a greatly increased use of the mails by abolitionists in1835. For example, a Northern newspaper without disclosing its source reported in the fall of 1835 that “It is said that the number of incendiary pamphlets received at the Charleston Post-Office amounted to 300,000.”72 Another newspaper account reported that a box intercepted at the Philadelphia Post Office contained2,000copies of abolitionist pamphlets addressed in bundles to persons throughout the South.73
Curtis comments that “by 1835the assumption that abolitionist publica- tions would lead to slave rebellions was so obvious to many Northerners and Southerners that it needed no demonstration.”74This should be no surprise.
After all, rebellion is what theAppealexplicitly called for.
Although all the statutes were directed against the dissemination of anti- slavery ideas to slaves or free blacks, the statutes spoke in somewhat different voices. Although Alabama, Georgia, and Maryland referred to “insurrection,”
Mississippi spoke of “seditious” publications, Louisiana referred to language tending to “produce discontent” or “excite insubordination,” and South Car- olina addressed “inflammatory discourse” “tending to alienate the affection or seduce the fidelity” of slaves. Finally, North Carolina criminalized the circulation of any “pamphlet or paper . . . the evident tendency whereof is to cause slaves to become discontented with their bondage . . . and free negroes to be dissatisfied with their social condition.” Every statute criminalized any questioning the legitimacy of slavery as an institution.
The Maryland, Tennessee, and Virginia statutes had particularly inter- esting provisions. In addition to provisions criminalizing anti-slavery com- munications, these Acts also imposed administrative responsibilities on the judiciary. The Maryland statute, for example, directed the judges each year to charge the grand jury in their jurisdictions to “cause to be summoned before them at all terms . . . all the postmasters . . . in their respective communities and to examine them particularly touching the subject matter of this act.” It supplemented the provision by making it a felony for any free black to call
72 The Pittsfield (Mass.)Sun, Sept.10,1835.
73 SalemGazette, Sept.1,1835, reprinting PhiladelphiaInquireraccount.See also New-Hampshire Sentinel, Sept.3,1835, reprinting BostonDaily Advertiserreport of the PhiladelphiaInquirer description of the affair.
74 SeeCurtis, The Curious History, note66, at802–803. Curtis supports his comment with quo- tations from Chancellor Kent (self-preservation demands on the part of the white population dwelling in the midst of such combustible materials, unceasing vigilance and firmness”) and John Quincy Adams (he “saw the abolitionists as making every possible exertion to kindle the flame of insurrection among the slaves.”)2James Kent,Commentaries on American Law254(1836);9John Quincy Adams,Memoirs254(1877).
Suppression of Anti-Slavery Speech 341 for or receive any abolitition newspaper or pamphlet at the Post Office.75 The Legislature was, thus, not only seeking to conscript Postmasters (who even in those early times were federal, not state, employees) to join in imple- menting the objectives of the statute, but establishing a unique enforcement mechanism to assure that they had done so.76
Although the statutes may be seen as substantially uniform in their objec- tives, the punishments that they provided in the case of violation differed wildly. The1831Alabama statute was the most severe. It provided for the death penalty for “seditious papers . . . tending to produce conspiracy or insurrec- tion . . . among the slaves or colored population.” The earlier Georgia statute also specifying “insurrection” provided that on conviction, the defendant shall be “declared guilty of a felony, and banished from this state forever [but in the event of return and being found within the state] “shall suffer death without benefit of clergy.” The South Carolina statute of 1805 adjudged the crime a “high misdemeanor” and provided for punishment [apparently without any limitation of time] but “not extending to life or limb . . . as may be adjudged.” North Carolina provided for imprisonment for not less than one year, the pillory, and a whipping at the court’s discretion. Although Maryland provided for confinement from10to20years, Virginia was much less severe, authorizing imprisonment not exceeding one year and a fine not exceeding $500.77
b. The Slave State Decisions
Although the repressive statutes were virtually universal in the slave holding states, there do not seem to have been many cases. References have been found to no more than15legal proceedings under all the statutes and a mere four at common law involving criminal libel, some of which apparently did not extend beyond the indictment stage.78Although some are officially reported,
75 Maryland Acts of1842, ch.272, §§1,3.
76 In an interesting sidenote, censorship of the mails revived after the Civil War with the enlistment of postal workers to suppress the circulation of obscene materials in the Comstock Act of1873.17 Stat.599(1873).
77 Seenote64.
78 In addition, there is a report from New Orleans of the arrest and detention of Robert Smith, a free black, for “circulating a dangerous pamphlet among the slaves.” BaltimorePatriot, Apr.1,1830. (The pamphlet appears to be David Walker’sAppeal). It is not known whether the matter led to an indictment or trial.
A number of these decisions have been found through searches of the contemporary newspapers.
With this search finding numerous cases in addition to those mentioned in the previous literature, there is a strong likelihood of newspaper reports of additional prosecutions that have not yet been identified.
most are available only in limited, and perhaps distorted form, from news- paper accounts. It is surprising that records on more cases are not available.
This, after all, is the period of the growing intensity of the national struggle over slavery that was dominating the political landscape. Tempers ran so high that physical assaults between Northerners and Southerners over slavery were occurring on the floor of the Congress.79In some slave states, tensions were so high that vigilante committees were organized and unlawfully employed violent means to suppress abolitionist activities.80 Some vigilante commit- tees were the products of mob action. Others were formed by “conservative”
elements to seize and destroy abolitionist materials, in part to dissuade more violent actions by mobs. Whipping, tar and feathering, and forcible expulsion of slavery critics from Southern communities, lynchings, and near-lynchings provide other examples of the vigilante aspects of slave state responses to anti-slavery agitation. In brief, the history of the antebellum South is full of incidents, not only of the use of the law to suppress the dissemination of abo- litionist materials, but also of mob and vigilante action. Although historians provide the larger picture of the full panoply of the efforts of the South to
79 The brutal caning on May22,1856, of Sen. Charles Sumner of Massachusetts by Rep. Preston Brooks of South Carolina on the floor of the Senate has been prominently reported. Sen. Sumner was attacked with a heavy walking cane and rendered bloody and unconscious. As a result he was absent from the Senate for several years. It is of interest that the House voted down a motion to expel Brooks. However, he resigned and was triumphantly reelected. Brooks became a Southern hero with a town in Florida and a county in Georgia named in his honor.
80 SalemGazette, Aug.7,1835reprints the report of the Clinton, Miss.,Gazetteof the discovery of a “horrible conspiracy” for a slave uprising contemplating the “total destruction of the white population of all the slave States” from “Maryland to Louisiana” under the leadership of two
“steam” doctors, Cotton and Saunders. The account further reports the organization of a local vigilante “committee of investigation” in Madison, Miss. Having found the evidence of the conspiracy “perfectly conclusive” and the guilt of Cotton and Saunders “placed beyond a doubt,”
the Committee ordered their public execution by hanging, which occurred in Livingston, Miss., on July4,1835. A second vigilante committee was active in the neighboring town of Clinton, Miss.
In all a total of five white men and10to15black men were executed after trial “conducted in a manner that would not do discredit to the most dignified judicial tribunal of the country.”
The NewportMercury, Aug.29,1835, reports an account in the NashvilleRepublicanheaded
“An Abolitionist caught!” A young man named Amos Dresser, a New Englander and a graduate of Brown, was “taken in the act of distributing some incendiary tracts and pamphlets among the negroes. . . . He was taken before the committee of vigilance – tried, and found guilty, and sentenced to receive20lashes on his bare back, and quit Nashville in24hours under penalty of more severe punishment.” The sentence was “immediately” carried out. Another person was arrested on the same day, and “the city was under a vigilant patrole [sic].” Dresser provided his own account of his experience. The Narrative of Amos Dresser (1836),reprinted in1Slave Rebels, Abolitionists and Southern Courts: The Pamphlet Literature, Series IV,251–265(Paul Finkelman ed.1988) (hereinafter Finkelman,Pamphlet Literature).See alsoAptheker, note71, at103–104 noting that pamphlets about this incident were printed in New York in1836and in Ohio as late as 1849. Apetheker also reports a similar vigilante incident in Georgia in1836involving a Princeton Theological Seminary student named Aaron W. Kitchell.
Suppression of Anti-Slavery Speech 343 stamp out challenges to slavery, these are beyond the scope of this volume, dealing only with the legal dimensions of this unhappy history.81
As readers will recall, some statutes speak of “conspiracy,” “insurrection,”
or “rebellion.” The defendants in most of the cases, however, do not involve revolutionaries. The most prominent involved ministers unable to reconcile slavery with Christianity, as in theGruber, Bacon, Worth, Vestal, Crooks, and McBridecases.
In theGrubercase arising in Western Maryland in1819, the defendant was a Methodist Episcopal minister preaching by invitation at a Methodist camp meeting on the grounds of a Frederick landowner to an enormous audience of 2,600to3,000persons, of whom300to400were blacks. His sermon addressed to the Christian conscience led to his indictment and prosecution. Counsel for the prosecution included one of the most distinguished lawyers of the times, Luther Martin, longtime Attorney General of Maryland, albeit in the twilight of his career. Defense counsel was led by Roger B. Taney, already recognized as a rising star and ultimately Chief Justice of the Supreme Court for three decades. By stressing the lack of proof that Rev. Gruber had intended to violate the law, Taney and his colleagues obtained an acquittal from the jury.82
81 The case of Rev. Charles T. Torrey is instructive. Torrey, a member of the Peace Society pledged against any form of violence, attended a “Slaveholder’s Convention” in Annapolis, Md., as a reporter for anti-slavery newspapers. When he was observed “taking notes,” it became suspected that he represented some abolition paper and this “caused evident excitement in the conven- tion. . . . [T]he excitement among the people had become so great, that the ‘strange reporter’ was seized, and forcibly taken out of the gallery. His situation was every moment becoming more perilous, when fortunately, the police intervened and he was conducted to jail on a charge of being an incendiary. But for this timely interference he would, so I hear, have been lynched.”
Farmers’ Cabinet, Jan.21,1842.
According to one account, he was ultimately discharged under security that he would stay out of Maryland.Berkshire County Whig, Jan.27,1842. Another reports that he was discharged on posting $1,000bond (his own for $500and two sureties for $250each) for his appearance at the April term and for “good behavior.” The magistrate is reported to have said that he had been tenderly dealt with as a stranger and that a Maryland citizen would have been committed for trial.
Farmers’ Cabinet, Jan.28,1842.
The same issue of theFarmers’ Cabinetcontained a further report of the episode by the New York Commercial Advertiserbased on an account of the episode by the BaltimoreSun. The Commercial Advertiserinquired “whether there is any such thing as personal safety and freedom in citizenship of the United States – whether the constitution under which we profess to live is really anything more than a dead letter. A more flagrant violation of personal right, so far as principle is concerned, has never been presented in this country – not even in the worst cases of Lynch law that have occurred in Arkansas or Mississippi.”
82 David Martin, Trial of the Rev. Jacob Gruber Minister in the Methodist Episcopal Church at the March Term,1819, in the Frederick County Court for a Misdemeanor (1819) (hereinafter Martin), reprinted in Finkelman,Pamphlet Literature, note80, at7; Eaton, note66, at131–133; P.
Finkelman,Slavery in the Courtroom158–161(1985).See alsoW. Lewis,Without Fear or Favor: