Conceived in Liberty Volume 2 - Ludwig von Mises Institute

censorship through licensing of the press. The Council had approved it but
the lower house had quickly rejected the bill
James Franklin directed much of his withering fire against the venerable
despot, the Reverend Increase Mather. After Mather's standard invocation of
the judgment of God failed to deter Franklin even a little, the old minister
warned the public against the "wicked paper" edited by "children of the old
serpent." Mather wistfully recalled that in the old days "the civil government
would have taken an effectual course to suppress such a cursed libel, which, if
be not done, I am afraid that some awful judgment will come upon this land,
and the wrath of God will arise, and there will be no remedy." But this time
Mather faced a foe who hit back as effectively as he received. It must have
been liberating indeed for the Massachusetts citizenry merely to read in the
Courant that Mather was a "reverend scribbler" who "quarrels with his
neighbors because they do not look and think just as he would have them."
The Assembly's rejection of licensing did not mean, however, that the
lower house was at all libertarian. Indeed the house's main reason for rejection
was fear of aggrandizing executive power over the press at its own
expense. Thus when James Franklin criticized the government for laxity in
pursuit of pirates in the summer of 1722, both houses censored Franklin and
summarily imprisoned him for a month on the simple order of the Speaker.
The Assembly continued to refuse to pass a press-licensing bill, but in early
1723, the Courant again angered the government. Both houses of the General
Court then censored the paper and ordered the prohibition of Franklin's further
publishing of the Courant. Franklin continued to publish the paper without
a license and courageously continued to attack the government. The Council
tried to arrest him for contempt, but Franklin cleverly managed to evade
the legislative order by naming his younger brother Benjamin publisher of
the paper, and the grand jury failed to indict.
The Franklin case ended prior censorship and licensing of the press in
Massachusetts. This did not mean that the press was now free. As in all the
other colonies, it was subject, albeit after publication, to the vague and pernicious
common-law doctrine of seditious libel, affecting virtually any criticism
of the government, and to the unlimited parliamentary privilege of a legislature
to arrest and punish its critics Of these the most pernicious and
unchecked was the power of the legislature; as we have seen in the Franklin
case, the legislature needed only to vote its punishment. It had no need for a
nongovernmental expression of the people such as a grand jury to indict or a
petty jury to convict. In the colonies the Assembly as well as the governorand-Council
could and did summon and invoke criminal penalties against
anyone who it decided had impeached its behavior—or had traduced its honor
or affronted its dignity. These were all seditious scandals against the government
and punishable as a breach of parliamentary privilege.
That under these twin engines of oppression the press was still not free in
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