Journalism History 43:3 (Fall 2017)122

ROGER P. MELLEN, Ph.D., is an associate professor in the department of journalism and mass communications at New Mexico State University.

The Lee Family and Freedom of the Press in Virginia

ROGER MELLEN

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 States owes a greater debt to one important family in Virginia than has been previously recognized. When we reflect upon the origins of the right to freedom of the press, we tend to remember John Locke, John Milton, James Madison, or even Thomas Jefferson. Delving a bit more deeply, we might even connect to George Mason and the Virginia Declaration of Rights—the first time press freedom was enshrined within a bill of rights. Looking at British political roots, we may even link the concept to Sir William Blackstone, Lord Bolingbroke, Cato (John Trenchard and Thomas Gordon), or John Wilkes. However, digging deeper into the colonial American roots, this research finds an important association between the genesis of the idea of restricting a government’s freedom to interfere with the press and three of the brothers from a famous Virginia family: Richard Henry Lee, Arthur Lee, and Thomas Ludwell Lee.

James Madison did not initially agree with the need for a Bill of Rights for the new Constitution of the United States. He argued that while it was necessary to limit power in a monarchy,

the proposed federal republic would not need such protection.1 However, one of the main concerns of the antifederalists was the lack of a bill of rights, and political pressure in his home state

of Virginia led Madison to pledge proposing a bill of rights if he were elected to Congress.2 When he did join the new House of Representatives, Madison did as promised and composed the amendments. He had as his template objections voiced to the new Constitution by the state ratifying conventions and the bills of rights passed by many of the states, including the groundbreaking Declaration of Rights of Virginia.3

In the years since the states ratified the First Amendment, many historians and legal theorists have tried to determine its original intent, especially with regards to seditious libel (or prosecution by the government after-the-fact for criticism of government). Proponents of the Sedition Act of 1798 argued that it did not violate the First Amendment,4 although it appears to have been a law abridging the freedom of the press. However, the concept of judicial review of the constitutionality of such acts had not yet been developed. Years later, Supreme Court Justice Oliver Wendell Holmes, Jr., disagreed with the claim, “that the First Amendment left the common law as to seditious libel in force” and suggested that the government had since shown remorse for the Sedition Act.5 Generally accepted was the libertarian concept that freedom of the press, while not absolute, did prevent most governmental interference, and did forbid prior restraint in all but the most extreme clashes with other important rights. Legal theorist Zechariah Chafee wrote in 1941 that the First Amendment goes much further than simply forbidding prior restraint and includes prohibition of seditious libel laws and prosecution. He suggested 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

123Journalism History 43:3 (Fall 2017)

Early American History, turned the history of the First Amendment on its head. Even his critics suggest this remains the most influential scholarly investigation of press freedom and original intent. Levy argued that British jurist Sir William Blackstone was the primary influence on the Americans as they began to write their own laws and Levy stated that press liberty did not preclude prosecution for seditious libel after publication.7 Even when he redrew his position some years later, Levy still claimed that this Blackstonian concept was the only restraint intended by the free press clause of the Bill of Rights: “[T]he First Amendment was not intended to supersede the common law of seditious libel.”8 The courts and many scholars

have rejected Levy’s views. Law professor David Anderson suggested that Levy ignored the legislative history of the press clause, since it was inconsistent with his conclusion.9 Levy replied, “No demand at all existed for the legal protection of the press, and Anderson cites none.” Levy noted that the Virginia Declaration of Rights was the first free press clause and that it was written by George Mason, composing alone, confronted by no pressure for press freedom.10 The research being presented here includes many primary sources that Levy did not use, such as newspapers and private correspondence, to demonstrate that Levy is wrong on both of those counts and suggest that his overall conclusion is flawed.

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.”

Journalism History 43:3 (Fall 2017)124

Other historians moved past legal interpretations and instead examined the direct influence that Enlightenment philosophers had on press freedom.11 Journalism historian David Copeland views the freedom to speak and write openly as a logical extension of the struggle for liberty of conscience, and points to Enlightenment thought as the origin of American free press theory. Copeland’s work builds on that of Frederick Siebert, who looks to John Locke as the inspiration, but Locke merely proposed an end to licensing, or prior restraint, and he did not actually develop a philosophy of freedom of the press.12 John Milton is also thought to have been an inspiration to the colonists. He argued unsuccessfully against English licensing and censorship of the press in “Areopagitica: A Speech for the Liberty of Unlicensed Printing” to Parliament in 1644.13 However, Milton’s thesis was not widely read at that time, his argument gained few followers,14 and he did not argue for complete freedom to publish anything but only against prior restraint. Milton was not a supporter of unrestricted press freedom, as he suggested executing those who published anonymously and supported strong punishment for those who libeled church or state.15 These more serious political thinkers such as Milton, Locke, and Thomas Hobbes were rarely printed and read in the colonies. Political journalists related to the informal radical Whig party were more often quoted in colonial newspapers than were the Enlightenment philosophers, and they had much to say regarding the importance of a press free to oppose the government in power. As newer historical research finds, public discourse driven by these popular writings had a more direct influence on freedom of the press than did court precedents.16

The Lee family of Virginia was intimately involved in the American Revolution and in the development of the concept of liberty of the press. Father Thomas Lee was a

politically powerful and wealthy planter who built the stately Stratford Hall overlooking the Potomac River.17 Eldest son Philip Ludwell Lee inherited both the plantation and the political mantle from his father, becoming a member of the powerful Virginia Governor’s Council. Philip was politically conservative and died in 1775 without having supported the Revolutionary cause.

Thomas Ludwell Lee, the next eldest, was the most popular of his siblings and is remembered as well spoken in private but utterly unable to speak in public. He was an active member of the House of Burgesses, but did not go into national politics.18 While the first known draft of a constitutional right to a free press is actually in Thomas Ludwell Lee’s handwriting, no historian has actually verified that this important idea was his.19 He is so little remembered by history than no image of him exists.

Richard Henry Lee, as signer of the Declaration of Independence, president of the Continental Congress, United States senator, and famed orator, is the best remembered of the brothers. When speaking in public, Richard Henry would wrap his injured hand in black silk, which he used to good purpose with practiced and effective gestures.20 Francis Lightfoot Lee had a successful political career and contemporaries said that he had the

soundest judgment of all the Lee brothers. Brother William Lee was the family businessman who resided for many years in London, but supported the American cause. He returned to Virginia in 1783.21 Youngest brother Arthur Lee worked as a diplomat for the new United States, but while he is remembered as being the most brilliant of all, he was also something of a misfit.22 He was educated at Eton, became a medical doctor at the University of Edinburgh and a lawyer at the Middle Temple in London. Sister Alice Lee was married to the prominent Philadelphia physician William Shippen, Jr., and sister Hannah Lee Corbin was something of a radical, converting from the established Church of England to

Baptist, living with a man without a legal marriage, and even asking that women be given the right to vote.23

There were three watershed developments marking freedom of the press in eighteenth-

century Virginia, and the Lee brothers were involved in each of them. The introduction of the first-ever constitutional protection for freedom of the press was an historic moment, but it emanated from the flowering of a free and more radical press, which only happened—and only could have happened—after a new printer was introduced to the colony.

This first step was in 1765, when some of the more radical colonists brought a second press to the capital of Williamsburg to free the flow of

information to the colony. As the Stamp Act crisis with Great Britain was heating up, some of the more progressive residents wanted a press that would convey their political messages. At that time, there was only one printing press in Virginia, and it had a history of control by the royal governor.

The colony of Virginia was in many ways an unlikely place for freedom of the press to take root. While it was the first successful English colony, it was not the first to have a printing press. For the Puritans of the Massachusetts Bay colony, literacy was a key to their religious beliefs so they were the first English to import a printing press into the New World. In Virginia, official suspicion towards printing ran so deep that—in an oft-quoted letter to his superiors back in England—the governor of Virginia wrote in 1671 that “I thank God, there are no free schools nor printing, and I hope we shall not have these hundred years, for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both!”24 Indeed, when the first printer and press appeared in Virginia in 1682, such presumption so startled the governor and his council that they exiled the press to the more welcoming colony of Maryland.25 By 1730, the official attitude toward printing had changed so much that the Virginia legislature actually invited a printer to move to the colony and become the official printer with a government salary.26

By the 1760s, Joseph Royle was the only printer in Virginia and the royal governor tightly controlled what he could print. When the House of Burgesses passed Patrick Henry’s radical Stamp Act resolves in May 1765, criticizing Parliament’s taxation of the colonies, the newspapers in other colonies printed these

“As the Stamp Act crisis with Great Britain was heating up, some of the more progressive residents wanted a press that would convey their political messages. At that time, there was only one printing press

in Virginia, and it hada history of control

by the royal governor.”

125Journalism History 43:3 (Fall 2017)

fiery words, but they were not seen in the local Virginia Gazette.27 An accusation that the Williamsburg printer would not publish anything critical of the British government appeared soon after in the neighboring colony of Maryland: “[W]e are in this Colony [Virginia] deprived of that great SUPPORT of FREEDOM, THE LIBERTY OF THE PRESS, as the only one we have here, is totally engrossed for the vile Purpose of ministerial Craft.”28 Royle was later accused of operating a monopoly with a private license from the governor who required strict censorship: “Has it not been said and that a paper was constantly carried to a certain house in Palace street [the Governor’s palace] to be inspected before it could be seen by the publick?”29 Even the acting governor admitted that the printer appeared to be too willing to please the royal authorities in the colony, driving some of the more radical Virginians to bring in a second printer.30

New research shows that Richard Henry Lee was likely one of the radical burgesses instrumental in bringing printer William Rind to Williamsburg from Annapolis, Maryland. Although historians have repeatedly credited Thomas Jefferson with recruiting the competing printer, that is now seen to be an error.31 Along with Patrick Henry, R.H. Lee was one of the leaders of the more

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 had competing newspapers that no longer reflected royal control. Timid printer Joseph Royle passed away in the midst of the Stamp

Act crisis, and when that version of the Virginia Gazette resumed publication under the direction of Alexander Purdie, soon joined by John Dixon, it featured a claim that this newspaper would be “as free as any publick press upon the continent.”38Arthur Lee recognized this new press freedom prominently in Purdie and Dixon’s newspaper:

It is [sic] matter of rejoicing to every well-wisher to mankind that the press, one of the principal handmaids of liberty, is become a free channel of conveyance whereby men may communicate their sentiments on every subject that may contribute to the good of their country, or the information and instruction of their fellow subjects; and it is to be lamented that a tyrannical arbitrary power should show itself, by traducing, and threatening with prosecution, patriot spirits, who appear to glow with an honest and unaffected zeal for their country’s good, and seasonably and generously lay hold on the freedom of the press whereby to exert their consummate abilities to instruct and inform mankind in things of the most interesting nature.39

Richard Henry Lee, by Charles Willson Peale, c. 1795-1805, oil on canvas. Courtesy National Portrait Gallery, Smithsonian Institution; gift of Duncan Lee and his son, Gavin Dunbar Lee.

Journalism History 43:3 (Fall 2017)126

Not everything Arthur Lee would write could get published in the two Virginia Gazettes, however. In 1767, he wrote an essay arguing that freedom was the birthright of all mankind, including Africans: “[T]here cannot be in nature, there is not in all of history, an instance in which every right of men is more flagrantly violated.”40 The outrage over this attack on slavery apparently meant the second essay on the topic was never published.41

The majority of his published writing focused not on slavery, which he apparently abhorred,42 but rather on the colonial dispute with Great Britain. Arthur Lee is said to have been the most prolific and influential publicist for colonial rights. One hundred seventy essays, pamphlets, and published letters have been attributed to him. In one of his most famous pamphlets, published in England in 1774, he put forward a deeply reasoned legal argument against taxation without representation, and noted just how precarious the situation had become: “A State of contention between Great Britain and America, is not only disagreeable but dangerous.”43 His solution for solving the British-American crisis was the establishment of a colonial bill of rights. Arthur Lee wrote often of the need for such, practiced press freedom with many radical, pseudonymous publications, and was a first-hand observer of John Wilkes’ battle for press liberty.44 That radical politician, “the English Champion of a free press,”45 was arrested on charges of seditious libel after criticizing the king’s speech in his 1763 issue number 45 of The North Briton. After a long struggle, Wilkes won that battle for freedom to criticize the government, and he later forced Parliament to open its doors to press coverage. The Virginia newspapers were enamored with Wilkes, covered his every move, and mentioned his name more than they did the king of England or future president George Washington.46 Arthur Lee lived in London for much of the decade and a half before the Revolution, and there he met and became fascinated with Wilkes. Arthur was a strong supporter of Wilkes, a member and officer of his Bill of Rights Society, and backed Wilkes’s efforts to open Parliament to reporting by the press.47

Richard Henry Lee published the radical essays his younger brother had written as the “Monitor” along with Pennsylvanian John Dickinson’s “Farmers Letters.”48 “The Monitor’s Letters” were initially published in ten fiery installments in Rind’s Virginia Gazette in 1768, warning the public of Britain’s active threats to American liberties.49 In essay number four, Arthur Lee recommended that the colonists petition to have their rights clearly defined and “established into a bill of rights; to the end that we may no more be alarmed with invasions of our liberties, but rest in peace, each man under his own vine, and each man under his own fig-tree.”50 Richard Henry wrote a forward in the pamphlet that was even more radical than were the original letters. He implied that—if the dispute should come to war—the underdog colonists would win, because of the distance, terrain, and a just cause: “Shakespeare says, ‘thrice is he armed that has his quarrel just, and he but naked, tho’ lock’d up in steel, whose conscience, with injustice, is oppressed.’ ”51 This is very fiery writing for 1769, long before others wrote about revolution or even separation from the mother country. Around this time, Richard Henry also wrote in an unpublished pamphlet, “The State of the Constitution of Virginia,” that the British Constitution was imperfect, leading to a violation of the people’s rights. He concluded that this had led to the English Bill of Rights, and that in Virginia, additional power given the royal governor, “unbalances the constitution.”52 Both of these writings demonstrate that Richard Henry Lee was thinking about a Virginia constitution and a bill of rights long before 1776.

The third step toward press freedom was unique and groundbreaking: The establishment of a constitutional right to a free press in the Virginia Declaration of Rights was the first time anywhere in the world that press freedom was guaranteed by a constitution or bill of rights.53 The Lee brothers were directly involved in this important step as well. As Virginia was declaring itself a free state in 1776, the convention appointed a committee to draft a plan of government. The members prefaced the new constitution with a remarkable bill of rights, created to protect the freedoms of citizens against the potential corrupt power of a new government.54 It was a large and cumbersome committee, “overcharged with useless Members,” according to George Mason, and he expected “a thousand ridiculous and impracticable proposals.”55 The well-respected Mason took the lead, and according to contemporary accounts, seemed “to have the Ascendancy in the great work,” and his draft of the declaration, “swallowed up all the rest.”56

While George Mason is known to be the primary author of the Virginia Declaration of Rights, James Madison biographer Irving Brant noted a very interesting fact:

while the first draft of that landmark document is primarily in Mason’s handwriting, the first version of the article on freedom of the press is actually in Thomas Ludwell Lee’s handwriting.57 As later amended by committee, this article number 12 states: “That the freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotick Governments.”58 The documentary record of the 1776 constitutional convention contains no evidence of who composed the free press clause. There are no minutes of committee debates or votes, however, there is contextual evidence on who might have been behind it.59 While it was actually penned by Thomas Ludwell Lee, and he was, “one of the most respected and popular delegates among those who wished to press hard for bolder measures,”60 there is no indication that this idea was his.61 We do know that brother Richard Henry often corresponded with his brothers, and that Arthur Lee—fighting for press freedom in England—also wrote many letters to his brothers. In a letter written just the day after the draft of the Declaration of Rights was presented to the entire convention, Richard Henry wrote to his brother Thomas Ludwell an apology that he had no time to write to Mason; “Pray make my compliments to him, let him have the news sent, and apologize for me.”62 No letter from them suggesting such an article on press freedom is extant.

The English Bill of Rights provided an important model for Mason as he drafted this set of rights for the new Commonwealth of Virginia. The basic structure is very similar, with numbered articles beginning with the word, “that,” and rather than forbid outright, it often uses the word “ought,” suggesting rather the proper behavior. Where the English version states, “That election of members of Parliament ought to be free,” the newer Virginia version states, “That elections of members to serve as representatives of the people, in assembly ought to be free.” The obvious change here is that the concept of royalty is left out in the newer, Virginia version. However, a major change is seen regarding both religion and free communication. While Catholics (or “papists”) are disallowed from sitting on the throne by the English bill, and certain rights are allowed only to Protestants, the Virginia Declaration was the beginning of a more expansive religious freedom. As stated in article 13, “[A]ll men are equally entitled to the free exercise of religion.”63

In the English Bill of Rights, only the lawmakers were accorded free speech, “That the freedom of speech and debates or proceedings

127Journalism History 43:3 (Fall 2017)

in Parliament ought not to be impeached or questioned in any court or place out of Parliament,”64 and the issue of unencumbered printing was left out entirely. In the Virginia version, free speech was not mentioned, and the original draft followed the format established by the English bill: “That the freedom of the press, being the great bulwark of Liberty, can never be restrained but in a despotic government.”65 While this draft uses the phrase “bulwark of liberty,” common to writings of this time, this version of the article does not use the word “ought,” so common in the English preface and in many of the articles in the Virginia Declaration, adding to the evidence that Mason was not the likely author.

There is no reason to believe that press freedom was important 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, who did not think highly of many people, respected and trusted Richard Henry Lee and collaborated closely with him.67 Mason begged Richard Henry to leave the Continental Congress in

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, John Adams 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 Cushing to write an address to the residents of Canada.71 Following a

list of grievances against the British government, it included a list of important rights of the people:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.72

According to Robert Rutland, this was an important advancement for the liberty of the press: “For the first time in America, a group of public men had openly and explicitly declared freedom of the press to be a fundamental tenet of civil liberty.”73 While this address

Arthur Lee by Charles Willson Peale, late eighteenth century. Courtesy Virginia Historical Society.

Journalism History 43:3 (Fall 2017)128

is often attributed to John Dickinson, also the author of the Letters from a Farmer in Pennsylvania, there is substantial evidence that it was actually written by Richard Henry Lee. While Dickinson claimed he was the author, John Adams noted that Lee showed him such an address before Dickinson had even joined the Congress, eighteen days before the committee writing the address had even been appointed.74 Bibliographer Paul Leicester Ford suggests that perhaps Lee, rather than Dickinson, was indeed the main author of this address75 and that argues that Richard Henry Lee was the first, during this period directly prior to the American Revolution, to suggest that freedom of the press was a key right that needed to be guaranteed by a government.

In the decade after the adoption of the Virginia Declaration of Rights, Richard Henry consistently proclaimed the importance of keeping a press free of government constraints. In arguing against the proposed United States Constitution without a bill of rights, he wrote to Samuel Adams about the dangerous possibility of government control of the press:

Suppose that good men came first to the administration of this government; . . . and the restraint of the press would then follow for good purposes as it should seem, and by good men—But these precedents will be followed by bad men to sacrifice honest and innocent men; and to suppress the exertions of the Press for wicked and tyrannic purposes.”76

Richard Henry was quite aware of the influence of the printed word, according to Philip Davidson: “He knew the power of the press, bewailed the absence of any newspaper whatever in Virginia for some months in 1781, and throughout the war regretted the failure of the leaders to make use of what facilities they had for reaching the people.”77 The reason a free press was so crucial, Richard Henry suggested, was that this new system of a republican government depended on a well-informed and enlightened public: “[H[ere arises the necessity for the freedom of the press, which is the happiest organ of communication ever yet devised, the quickest and surest means, of conveying intelligence to the human mind.”78 Richard Henry wrote that it was essential “That the freedom of the Press shall be secured,”79 and that “liberty of the press” was one of the freedoms “so capital and essential, that they ought to be secured by a bill of rights.”80

Brother Arthur Lee was also committed to freedom of the press and the fight for a Bill of Rights. Just two years before Virginia declared its independence, Arthur wrote back to the colonies that the British Parliament was hostile to American rights, and what the colonies needed most was a “Bill of Rights.” In this letter to a fellow patriot in Massachusetts, he did not outline what these rights should include.81 Arthur was closely aligned with John Wilkes and his Bill of Rights Society in England, and their successful fight to gain the right to report debates in Parliament.82 Arthur admired the controversial Wilkes: “Of courage, calm and intrepid, of a flowing wit, accommodating in his temper, of manners convivial and conversible, an elegant scholar, & well read in Constitutional Law.”83 Arthur’s close support of Wilkes is strong evidence that Arthur—and likely his brothers—did consider a free press to be essential. (Arthur and Richard Henry were close in their political thinking, as can be seen in their many letters still extant.)

There are many other important precedents to reference of free press as a “bulwark of liberty,” the phrase used in the Declaration of Rights. In the first issue of his radical newspaper, Wilkes wrote,

“The liberty of the press is the birth-right of a Briton, and has by the wisest men in all ages been thought the firmest bulwark of the liberties of this country.”84 Decades earlier, a reference to press freedom being a “bulwark” appeared in the British “country party” newspaper the Craftsman. The anonymous author, generally recognized to be Henry St. John, the Viscount Bolingbroke, claimed that the liberty of the press “is the greatest Blessing of a free People,” and “the chief bulwark and support of Liberty in general,” and “this great bulwark of our Constitution.”85 Trenchard and Gordon, writing as “Cato,” announced that “Freedom of Speech is the great Bulwark of Liberty; they prosper and die together: And it is the Terror of Traytors and Oppressors, and a Barrier against them.”86 During the Stamp Act crisis, the royal governor requested the Massachusetts House of Representatives to take action against a “seditious” newspaper. The legislature, dominated by radical Samuel Adams, refused, quoting Cato: “The Liberty of the Press is the great Bulwark of the Liberty of the People: It is, therefore, the Incumbent duty of those who are constituted the Guardians of the People’s Rights, to defend and maintain it.”87 Writing in the Boston Gazette, Samuel Adams suggested, “[T]here is nothing so fretting and vexatious, nothing so justly TERRIBLE to tyrants, and their tools and abettors, as a FREE PRESS.”88 However, in 1772, when the citizens of Boston famously issued a rather lengthy “Bill of Rights,” again led by Samuel Adams, it included freedom of religion as well as rights to personal property and liberty, but it did 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 no evidence of anyone making a connection between the concept and the actual act of placing it within a bill of rights.

Just days before the writing of the free press clause in the Virginia bill of rights, an important letter appeared in Dixon & Hunter’s May 16, 1776 Virginia Gazette. Writing under a common pseudonym of the time, “Civis” noted just how important press freedom was: “[T]he LIBERTY of the PRESS is the palladium of our LIBERTIES.” Published just as a committee was considering what to include in the new Declaration of Rights, this must be viewed as a strong suggestion that to guarantee liberty in the new state, freedom of the press must be included. We do not know who wrote this letter, but the Lee brothers are good probabilities, considering all of their work with the local press and their efforts for a free press.

The Lees were intimately involved in all three of these major steps towards press freedom in Virginia. First, Richard Henry Lee was likely the main recruiter for a second, competitive, and pro-patriot printer. At the very least, this printer was housed in a home owned by close relatives. Second, both Arthur Lee and Richard Henry were active in publishing radical tracts that were critical of the British government, discussed the need for a bill of rights, and supported the idea for press freedom. Third, Thomas Ludwell Lee—and probably his brothers Richard Henry and Arthur—acted as a major force behind the writing of the clause enshrining the constitutional right to a free press.

The 1776 Virginia Declaration of Rights was the first time that a bill of rights or a constitution guaranteed the right to a free press. This precedent had a profound influence on

the subsequent state constitutions and—in turn—James Madison’s First Amendment.90 In 1791, the states ratified what we now call the Bill of Rights and freedom of the press became enshrined within the United States Constitution. This important limitation on the power of government became a key to the balance of power in this

129Journalism History 43:3 (Fall 2017)

nation and a model for the world. The revolutionary difference here is that instead of having the legislature and the executive be the prime protectors of the rights of citizens, this created a model where a free press, supported by an independent judiciary that could review any constitutional infringement, becomes the guardian. The legislature and executive no longer have the ultimate authority in protecting the people, leading to the great stability the United States has enjoyed.91

Thomas Ludwell Lee actually penned the first draft of the constitutional right to a free press, but it is not clear if he was merely functioning as a secretary for the additional articles to the Virginia Declaration of Rights or if the idea was his. If the composition of this article was original to him, the historical record suggests that his brothers had a strong influence upon its writing. Thomas Ludwell died at age forty-seven in 1778, not living long enough to see his new nation survive revolution or constitutional crisis. He is nearly forgotten by history. Richard Henry Lee was closely connected to the printer brought to the colony to create a free press, he exercised his right to a free press by printing radical tracts that certainly could have been considered seditious libel, and he wrote of the need for a free press in the emerging nation. He famously opposed the United States Constitution while it was lacking a bill of rights and a free press guarantee. Arthur Lee was considered to be the penman, press agent, or chief propagandist for the American Revolution. He was an early advocate for an American bill of rights, he wrote early and often of the need for a free press, and he warned that a tyrannical leader might suppress such liberty. Arthur Lee was a close ally of John Wilkes as he was prosecuted for sedition libel and as he advanced the cause of press freedom in Great Britain. These three brothers clearly played an integral part in the creation of a free press clause in the Virginia Declaration of Rights and that it—in turn—was the prime inspiration for the press clause in the First Amendment.

This new evidence on the origins of the first free press clause leads to the conclusion that the original intent was to disallow all government suppression of political criticism. This directly contradicts Levy’s suggestion that what Madison had in mind was simply a Blackstonian ban on prior restraint on publishing by the government—a prohibition on government censorship or licensing92—and that George Mason wrote the clause by himself, and that there were no public calls for press freedom.93 It is clear that Mason did not write this clause and that there was indeed strong public support in Virginia for a guarantee of a free press. The colonial struggles for press freedom—including the famous Peter Zenger trial in 1735,94 and the direct connection between John Wilkes’ struggles to freely criticize the government and colonial press liberty—contradict Levy’s theory that seditious libel was not part of the original meaning. The involvement of Arthur Lee, the high level of interest in the example set by Wilkes, and the efforts made by the radical Virginia colonists to have a press that could also freely criticize the government all suggest that the intent of the free press clause in the Virginia Declaration of Rights was indeed to prevent all suppression of political speech; to disallow prosecution for seditious libel. As this was the primary inspiration for the free press clause in the federal Bill of Rights, it would then follow that the intent there was also to allow free criticism of the government. Of course, it is one thing to argue for free press when you are the opposition to the government, and another thing to support a boisterously free press when you are in power and thus are the one being criticized. Beginning with the Sedition Act of 1798, there has been an unfortunate tradition in this country of not allowing free

criticism, especially during times of war. We have often chipped away at that important ideal of allowing free and open debate. Those precedents, however, do not undermine the original intent. They merely point to the need for such constitutional protection and for our constant support for those ideals.

NOTES1 James Madison to Thomas Jefferson, Oct. 17, 1788, The James Madison

Papers, 1723-1836, Library of Congress, Manuscript Division, microfilm, series 1, reel 2, 10.

2 Richard Labunski, James Madison and the Struggle for the Bill of Rights (Oxford, U.K.: Oxford University Press, 2006), 158-65. See also William C. Rives, History of the Life and Times of James Madison vol. 3 (Boston: Little, Brown and Company, 1859-1868); and Irving Brant, James Madison: Father of the Constitution, 1787-1800 (Indianapolis: Bobbs-Merrill, 1950).

3 Bernard Schwartz, The Bill of Rights: A Documentary History, (New York: Chelsea House Publishers with McGraw-Hill Education, 1971) 2:997-1008; and Labunski, James Madison, 198-201.

4 David S. Bogen, “The Origins of Freedom of Speech and Press,” Maryland Law Review 42 no. 3 (1983): 429-65.

5 Holmes, dissenting opinion, Abrams v. U.S., 250 U.S. 616 (1919).6 Zechariah Chafee, Freedom of Speech (New York: Harcourt, Brace and Howe,

1920), 23-35; and Zechariah Chafee, Free Speech in the United States (Cambridge, Mass: Harvard University Press, 1941), 21-31. See also David A. Anderson, “The Origins of the Free Press Clause,” UCLA Law Review 30, no. 3 (February 1983), section IV. The Sedition Act of 1798 expired without a test of its constitutionality, but in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court in essence ruled seditious libel unconstitutional.

7 William Blackstone, Commentaries on the Laws of England (London: 1765-1769; facsimile reprint, Chicago: University of Chicago Press, 1979), 4:151.

8 Leonard Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression (New York: Harper & Row, 1963), ix. This 1963 edition of his 1960 original work, Legacy of Suppression: Freedom of Speech and Press in Early American History (Cambridge, Mass.: Belknap Press of Harvard University Press, 1960), included some expansion and corrections, and may indeed mark the shifting of the author’s own opinion with the change in title. Suppression now comes second and freedom first.

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.

10 Leonard Levy, “On the Origins of the Free Press Clause,” UCLA Law Review 32 (February 1984): 177-218.

11 David A. Copeland, The Idea of a Free Press: the Enlightenment and Its Unruly Legacy (Evanston, Ill.: Northwestern University Press, 2006), 75-90, 226.

12 Harold A. Innis and Mary Q. Innis, Empire and Communications (Toronto: University of Toronto Press, 1972), 153; and Peter Laslett, ed., in John Locke, Two Treatises of Government (Cambridge, U.K.: University Press, 1960), 7. Locke had an opportunity to give constitutional protection to free press and speech when he co-authored a constitution for the colony of Carolina, but it contains no such clause. In fact, “The Fundamental Constitutions of Carolina” included licensing of the press as part of the law as a function of the “councillor’s court.” See John Locke [and Lord Ashbury, the Third Earl of Shaftesbury], The Fundamental Constitutions of Carolina (March 1, 1669), article 35.

13 John Milton, Areopagitica and of Education, ed. George H. Sabine (New York: Appleton-Century-Crofts, 1951), 49.

14 Copeland, Idea of a Free Press, 83-85.15 Thomas L. Tedford and Dale A. Herbeck, Freedom of Speech in the United

States, 4th ed. (State College, Pa.: Strata Publishing, Inc., 2001), 13-17.16 Roger P. Mellen, The Origins of a Free Press in Prerevolutionary Virginia: Creating

a Culture of Political Dissent (Lewiston, N.Y.: Edwin Mellen Press, 2009), 284.17 Stratford Hall is perhaps best known as the birthplace of Robert E. Lee,

son of Henry “Light Horse Harry” Lee, whose father was a second cousin to Philip, Thomas Ludwell, Richard Henry, and Arthur Lee.

18 Oliver Perry Chitwood, Richard Henry Lee: Statesman of the Revolution (Morgantown: West Virginia University Library, 1967), 7. Mary Elizabeth Virginia, “Richard Henry Lee of Virginia: A Biography” (PhD diss., State University of New York at Buffalo, 1992). http://leearchive.wlu.edu/reference/theses/virginia/

Journalism History 43:3 (Fall 2017)130

index.html, quoting John Adams to Richard Bland Lee, Aug. 11, 1819, The Works of John Adams, ed. C. F. Adams (Freeport NY: Books for Libraries Press, 1969), 10:382; and Edmund Randolph, History of Virginia (Charlottesville: Published for the Virginia Historical Society [by] University Press of Virginia, 1970), 191-92. This contemporary history, written before 1813, was first published in serial form in Edmund Randolph and Rebecca Johnston, “Edmund Randolph’s Essay on the Revolutionary History of Virginia (1774-1782),” Virginia Magazine of History and Biography 44 (1936): 43-47.

19 One clause of the Virginia Declaration of Rights is considered “first explicit legal sanction for a free press,” and most historians assume that George Mason composed this along with most of the other articles within this. As Mason’s biographer, Robert Rutland notes, the first known draft of the free press clause was in Thomas Ludwell Lee’s handwriting, added after a committee discussion, and it is not clear who composed it. From George Mason The Papers of George Mason, 1725-1792, ed. Robert Rutland (Chapel Hill: University of North Carolina Press, 1970), 1:278. See also Irving Brant, James Madison: The Virginia Revolutionist (Indianapolis: Bobbs-Merrill, 1941) 1:234-37. This connection will be developed more completely later in this article.

20 An unfortunate accident from gun misfire while hunting swans in 1768 left RHL with no fingers on his left hand, a misfortune that he apparently put to good use. From Richard Henry Lee [the elder Richard Henry Lee’s grandson], Memoir of the Life of Richard Henry Lee, and his Correspondence with the Most Distinguished Men in America and Europe … (Philadelphia: H.C. Carey and I. Lea, 1825), 54 & 251-2, and Chitwood, Richard Henry Lee, 46.

21 Chitwood, Richard Henry Lee, 10-11. 22 Ibid., 11; and Louis W. Potts, Arthur Lee, a Virtuous Revolutionary (Baton

Rouge: Louisiana State University Press, 1981), 278.23 Richard Henry Lee to Hannah Lee Corbin, March 17, 1778, in The Letters

of Richard Henry Lee, ed. James Curtis Ballagh (New York: De Capo Press, 1970), 1:390-94. Virginia, “R. H. Lee: Biography”; and Louise Belote Dawe and Sandra Gioia Treadway. “Hannah Lee Corbin: The Forgotten Lee,” Virginia Cavalcade 29, no. 2 (Autumn 1979): 70-78.

24 Governor Sir William Berkeley responded to “Enquiries to the Governor of Virginia,” submitted by the Lords Commissioners of Trade and Plantations in London, from “Inquisitions, &c. 1665 to 1676,” 239, quoted in William Hening, The Statutes at Large; Being a Collection Of All the Laws of Virginia, from the First Session of the Legislature in the Year 1619 (New York: Printed for the editor, 1819-23. Facsimile reprint, Charlottesville: Published for the Jamestown Foundation of the Commonwealth of Virginia by the University Press of Virginia, 1969), 2:511-17. Emphasis in original.

25 The date was February 1682 by the old Julian calendar, 1683 by the Gregorian calendar, adopted in 1752. Douglas McMurtrie, The Beginnings of Printing in Virginia (Lexington, Va. [Printed in the Journalism Laboratory of Washington and Lee University], 1935), 6-7; and Lawrence Wroth, A History of Printing in Colonial Maryland, 1686-1766 (Baltimore: Typothetae of Baltimore, 1922), 1.

26 Douglas C. McMurtrie, A History of Printing in the United States; The Story of the Introduction of the Press and of Its History and Influence During the Pioneer Period in Each State of the Union (New York: R. R. Bowker Company, 1936), 276-306; McMurtrie, Beginnings of Printing in Virginia, 15-21; Wroth, History of Printing in ] Maryland, 55-87; and Journals of the House of Burgesses (June 10, 1732), 6:141-42.

27 Edmund Morgan and Helen Morgan, The Stamp Act Crisis: Prologue to Revolution (1953; revision, Chapel Hill: University of North Carolina Press, 1995), 102; and Francis G. Walett, “The Impact of the Stamp Act on The Colonial Press,” in Donovan Bond and W. Reynolds McLeod, eds., Newsletters to Newspapers: Eighteenth-Century Journalism, Papers Presented at a Bicentennial Symposium at West Virginia University, Morgantown, West Virginia March 31-April 2, 1976 (Morgantown, W.V.: School of Journalism, 1977), 163.

28 “A Virginian,” letter to the Maryland printer, A Supplement to the Maryland Gazette of Last Week (Annapolis: Jonas Green, Oct. 17, 1765), 1.

29 “A Man of Principle,” letter to the printer, Virginia Gazette (Williamsburg, Va.: Purdie & Dixon, Aug. 22, 1766), 2.

30 Francis Fauquier to the Board of Trade, Williamsburg, April 7, 1766, handwritten transcription, Great Britain PRO CO 5, container v. 1331:97-106 [137-48], Library of Congress, Manuscript Reading Room. As lieutenant governor, Fauquier and many of his predecessors ruled the colony while the actual royal governors were absentees back in Great Britain merely collecting the salary.

31 Roger P. Mellen, “Thomas Jefferson and the Origins of Newspaper

Competition in Pre-Revolutionary Virginia,” Journalism History 35, no. 3 (Fall 2009): 151-61; and Laurie E. Godfrey, “The Printers of the Williamsburg Virginia Gazettes, 1766-1776: Social Controls and Press Theory” (PhD diss., Regent University, 1998), 249-50.

32 Randolph, and Johnston, “Edmund Randolph’s Essay,” 124-25. See also Godfrey, Printers, 248.

33 Richard Henry Lee to Landon Carter, Feb. 24, 1766, Lee Family Papers, Virginia Historical Society, Section 129, Mss1 L51 f 533-549. (Also in Ballagh, Letters of Richard Henry Lee, 1:14-15.)

34 Richard Henry Lee to Landon Carter, Sept. 20, 1766, Lee Family Papers, Virginia Historical Society, Section 129, Mss1 L51 f 533-549. (Also in Ballagh, Letters of Richard Henry Lee, 1:12.)

35 Richard Henry Lee to William Lee, July 7, 1770, Lee Family Papers, Virginia Historical Society, Section 129, Mss1 L51 f 533-549. (Also in Ballagh, Letters of Richard Henry Lee, 1:46.)

36 Mary Stephenson, Ludwell-Paradise House Historical Report, Block 18-1 Building 7 Lot 45 (Williamsburg, Va.: Colonial Williamsburg Foundation Library, 1948), 6-7.

37 Rind’s Virginia Gazette (Williamsburg: William Rind, May 16, 1766), 1. The original is at the New York Historical Society. A handwritten editorial note on this only extant copy added “and the first [well-conducted newspaper] that has ever been Established in this Province,” a comment that reinforced the idea that many in Virginia felt the need for a newspaper free of censorship. The newspaper title was soon changes to simply Virginia Gazette, sharing that name eventually with as many as four other newspapers.

38 Virginia Gazette (Williamsburg: Alexander Purdie, March 28, 1766), 3.39 “Philanthropos,” Virginia Gazette (Williamsburg, Va.: Purdie and Dixon,

Aug. 22, 1766), 1. Woody Holton, Forced Founders: Indians, Debtors, Slaves, and the Making of the American Revolution In Virginia (Chapel Hill: University of North Carolina Press, 1999), 70, n. 49; and Gary Nash, The Unknown American Revolution: The Unruly Birth of Democracy and the Struggle to Create America (New York: Viking, 2005), 116, state that Arthur Lee wrote as Philanthropos.

40 “Philanthropos” [Arthur Lee], Virginia Gazette (Williamsburg, Va.: Rind, March 19, 1767), no longer extant, quoted in Colonial Williamsburg Foundation, Enslaving Virginia: Becoming Americans, Our Struggle to be Both Free and Equal (Williamsburg, Va.: Colonial Williamsburg Foundation, 1999).

41 Gary Nash, Race and Revolution (Madison, Wis.: Madison House, 1990), 92-96, 115-116, and 467, n. 42; and Richard K. MacMaster, “Arthur Lee’s ‘Address on Slavery’: An Aspect of Virginia’s Struggle to End the Slave Trade, 1765-1774,” The Virginia Magazine of History and Biography 80, no. 2 (1972): 141-57.

42 Alvin Richard Riggs, “Arthur Lee and the Radical Whigs, 1768-1776” (PhD diss., Yale University, 1967), 17, Library of Virginia.

43 Old Member of Parliament [Arthur Lee], An Appeal to the Justice and Interests of the People of Great Britain in the Present Disputes with America (London: Printed for J. Almon, 1774), 1.

44 Riggs, “Arthur Lee and the Radical Whigs,” preface. 45 Arthur Schlesinger, Prelude to Independence: The Newspaper War on Britain,

1764-1776 (Westport, Conn.: Greenwood Press, 1957), 113.46 Roger P. Mellen, “John Wilkes and the Constitutional Right to a Free Press

in the United States,” Journalism History 41, no. 1 (Spring 2015): 2-10.47 Richard Henry Lee [the elder Richard Henry Lee’s grandson], and Arthur

Lee, Life of Arthur Lee, LL. D., joint commissioner of the United States to the court of France, and sole commissioner to the courts of Spain and Prussia, during the Revolutionary War. With his political and literary correspondence and his papers on diplomatic and political subjects, and the affairs of the United States during the same period (1829; repr., Freeport, N.Y.: Books for Libraries Press, 1969), 22. Later, when Arthur Lee was secretary, the name was changed to Society for the Bill of Rights. See Potts, Arthur Lee, 59-64.

48 Arthur Lee and John Dickinson, The Farmer’s and Monitor’s Letters, to the Inhabitants of the British colonies. With a forward by Richard Henry Lee. (Williamsburg: William Rind, 1769.) Schlesinger, in Prelude to Independence, 125, suggests that these pamphlets were so popular that they could not be printed fast enough to keep up with demand. The cover to Thomas Jefferson’s copy in the Library of Congress has a handwritten note that this was written “By John Dickinson and Arthur Lee,” confirming them as the authors behind the pseudonyms “Farmer” and the “Monitor” respectively.

49 Virginia Gazette (Williamsburg: William Rind, February 25-April 28, 1768).

131Journalism History 43:3 (Fall 2017)

50 “Monitor” [Arthur Lee], Virginia Gazette (Williamsburg: William Rind, March 17, 1768), 1; and Arthur Lee, The Farmer’s and Monitor’s Letters, 72-73.The last part of this is from several places in the Bible, including 1 Kings 4:25.

51 Richard Henry Lee, Farmer’s and Monitor’s Letters, i-ii.52 Richard Henry Lee, “The State of the Constitution of Virginia,” [1769?]

Virginia Historical Society, Lee Family Papers, Mss1 L51 f 378. There is no date on this unpublished manuscript, the EncyclopediaVirginia.org at http://www.encyclopediavirginia.org/lee_richard_henry_1732-1794#start_entry suggests 1769. Kent McGaughy, Richard Henry Lee of Virginia: Portrait of an American Revolutionary (Lanham, Md.: Rowman & Littlefield, 2004), 70, n. 47 suggests about 1767.

53 Bernard Schwartz, ed., The Bill of Rights: A Documentary History (New York: Chelsea House in association with McGraw Hill, 1971), 1:231; and T. Daniel Shumate, The First Amendment: The Legacy of George Mason (Fairfax, Va.: George Mason University Press, 1985), 12.

54 The convention minutes do not include details of the committee debates or motions on the Declaration of Rights. See John Tazewell [clerk, MS minutes], Proceedings of the Convention of Delegates Held at the Capitol, in the City of Williamsburg, in the Colony of Virginia, on Monday the 6th of May, 1776, Virginia State Library, archives division, microfilm reel 618, plus additional notes by assistant clerk Jacob Bruce, microfilm reel 618M. Also see the printed version, Proceedings of the Convention of Delegates Held at the Capitol, in the City of Williamsburg, in the Colony of Virginia, on Monday the 6th of May, 1776 (Williamsburg: Alexander Purdie, 1776); and Brent Tarter and Robert L. Scribner, eds., Revolutionary Virginia; The Road to Independence (Charlottesville: University Press of Virginia, 1981-83), 7:9-604.

55 George Mason to Richard Henry Lee, Williamsburg, May 18, 1776, Archives of the Virginia Historical Society, Lee Family Papers: 1638-1867. Mss1 L51 f 367.

56 Edmund Pendleton [president of the convention], Williamsburg, to Thomas Jefferson, May 24, 1776, in The Papers of Thomas Jefferson, ed. Julian P. Boyd (Princeton: Princeton, N.J.: University Press, 1950-), 1:296; and “Essay on the Revolutionary History of Virginia,” 43-47.

57 Brant, James Madison: Virginia Revolutionist, 1:235-37. Brant suggests that this first draft by Mason, with Thomas Ludwell Lee’s addition of three articles, was sent by Lee to his brother Richard Henry, that Jefferson saw this version, and that it in turn influenced the writing of the Declaration of Independence. This draft, which somehow ended back in Mason’s papers, had as its eleventh article, “That the freedom of the press, being the great bulwark of Liberty, can never be restrained but in a despotick Government.” From George Mason, The Papers of George Mason, 1725-1792, ed. Robert Rutland (Chapel Hill: University of North Carolina Press, 1970), 1:278.

58 Rutland, Papers of George Mason, 1:288.59 Tarter and Scribner, Revolutionary Virginia, 7:277, n. 21, suggest that: “The

committee added this article” [on press freedom.]60 Tarter and Scribner, Revolutionary Virginia, 7:2. 61 Rutland in Papers of George Mason, 1:281 notes that although it is in

Thomas Ludwell Lee’s handwritten addition to Mason’s draft, “it is hazardous to say categorically that [it] originated either with Lee or GM.”

62 RHL to Thomas Ludwell Lee, Philadelphia, May 28, 1776, from a printed text in New York Historical Society Collection, The Lee Papers, II 47, from Ballagh, Letters of Richard Henry Lee, 1:196.

63 Virginia Declaration of Rights.64 [English] Bill of Rights, 1689.65 Virginia Declaration of Rights, original draft, George Mason Papers: 1754-

1921, Library of Congress, Madison Building, Manuscript Reading Room, MSS31583; and Rutland, Papers of George Mason, 1:278.

66 Rutland, Papers of George Mason, 1:65-72.67 Ibid., 1:314. 68 George Mason to RHL, May 18, 1776, George Mason Papers, Library of

Congress. 69 Thomas Ludwell Lee to RHl, May 18, 1776, Library of Virginia, Archives

and Manuscript room, call number 22868.70 Richard Henry Lee, Government Scheme (Philadelphia: N.p. [April 10],

1776), reprinted in the Virginia Gazette (Williamsburg: Purdie, May 10, 1776), 4. [John Adams] Thoughts on Government: Applicable to the Present State of the American Colonies. In a Letter from a Gentleman to his Friend. (Philadelphia: John

Dunlap, [circa. April 10,] 1776); and John E. Selby, “Richard Henry Lee, John Adams, and the Virginia Constitution of 1776,” The Virginia Magazine of History and Biography 84, no. 4 (1976): 387-400.

71 Chitwood, Richard Henry Lee, 71.72 Letter to the Inhabitants of the Province of Quebec, 1774, by the First

Continental Congress, Journals of the Continental Congress 1774-1789 (Washington, D.C.: G.P.O., 1774), 1:105-13. Boldface type in original.

73 Robert Rutland, The Birth of the Bill of Rights, 1776-1791 (Chapel Hill: Published for the Institute of Early American History and Culture by the University of North Carolina Press, 1955), 29.

74 John Adams, diary entry, Oct. 4, 1774, in John Adams and Charles Francis Adams, The Works of John Adams, Second President of the United States: With a Life of the Author, Notes and Illustrations (Boston: Little, Brown, 1850) 2:392.

75 Paul Leicester Ford, “Some Materials for a Bibliography of the Official Publications of the Continental Congress, 1774-1789,” from Bulletin of the Public Library of the City of Boston, 8:321, n. 7.

76 Richard Henry Lee to Samuel Adams, Oct. 5, 1787, in Ballagh, Letters of Richard Henry Lee, 2:444-47.

77 Philip Davidson, Propaganda and the American Revolution: 1763-1783 (Chapel Hill: University of North Carolina Press, 1941), 18-19.

78 Richard Henry Lee, Chantilly, to Edmund Pendleton, May 22. 1788, from Ballagh, Letters of Richard Henry Lee, 2:469-74.

79 RHL to Dr. William Shippen, Jr., Oct. 2, 1787 [proposed amendments to the Federal Constitution] in Ballagh, Letters of Richard Henry Lee, 2:442, from Shippen Collection.

80 RHL to Edmund Pendleton, May 22, 1788 in Ballagh, Letters of Richard Henry Lee, 2:469-71.

81 Arthur Lee to Thomas Cushing, Dec. 6, 1774, Public Records Office, London, Colonial Office, 5/118, ff. 92-3. This letter and others that Benjamin Franklin sent to Cushing, were seized by the British by General Gage, according to Merrill Jensen, The Founding of a Nation: a History of the American Revolution, 1763-1776 (Indianapolis: Hackett, 2004), 420, n. 67.

82 Riggs, “Arthur Lee and the Radical Whigs,” 134-38.83 Arthur Lee, Memoir (unfinished), from The Lee Family Papers, 1742-

1795, eds. Paul P. Hoffman and John L. Molyneaux (Charlottesville, University of Virginia Library, 1966) reel 8.

84 The North Briton (London: John Wilkes, June 5, 1762), 1.85 The Craftsman (London: Richard Francklin, Dec. 9, 1726, June 24, 1727,

Sept. 28, 1728, and Nov., 1728), quoted in Jeremy Black, The English Press in the Eighteenth Century (Philadelphia: University of Pennsylvania Press, 1987), 125.

86 [John Trenchard and Thomas Gordon], “Cato’s Letter No. 15,” Cato’s Letters; Essays on Liberty, Civil and Religious, and Other Important Subjects (London: Printed for W. Wilkins, T. Woodward, J. Walthoe, and J. Peele, 1723-24; reprint, New York: Da Capo Press, 1971), 1:100.

87 Alden Bradford, ed., Speeches of the Governors of Massachusetts from 1765-1775 (Boston: Russell and Gardner, 1818), 119.

88 [Samuel Adams], Boston-Gazette, and Country Journal, (Boston: Edes & Gill, March 14, 1768), 2.

89 [Samuel Adams and Joseph Warren?] “Boston Committee of Correspondence, The Votes and Proceedings of the Freeholders and other Inhabitants of the Town of Boston in Town Meeting assembled According to Law,” (Boston: Edes and Gill, in Queen-street, and T. and J. Fleet, in Cornhill, 1772). 

90 Shumate, The First Amendment, 9-12.91 Frederick Schauer, “Free Speech and Its Philosophical Roots,” in Shumate,

ed., First Amendment, 132-49.92 Leonard Levy, Emergence of a Free Press (New York: Oxford University Press,

1985), ix and xviii; and Blackstone, Commentaries on the Laws, 4:151.93 Levy, “Origins of the Free Press Clause,” 177-218.94 Copeland, Idea of a Free Press, 153-61; Robert W.T. Martin, The Free

and Open Press: The Founding of American Democratic Press Liberty, 1640-1800 (Albany: New York University Press, 2001), 47-60; David Paul Nord, Communities of Journalism: A History of American Newspapers and their Readers (Urbana and Chicago: University of Illinois Press. 2001), 65-76; and Leonard Levy, Freedom of the Press from Zenger to Jefferson; Early American Libertarian Theories (Indianapolis: Bobbs Merrill, 1966), 13-30.