The observation of the bicentennial of the United States Constitution and ratification of the Bill of Rights has provided the opportunity for numerous voices to call for a reexamination of the "intent of the Framers" and for some to recraft history to su pport certain views of "original intention." In his recent book, The Tempting of America, Robert Bork even advanced a spirited argument that intent of the framers is the only valid means of constitutional interpretation. To determine and articulate the implicit values of the framers, he suggested, judges can supplement documentary narratives by also seeking "enlightenment from the structure of the document and the government it created."1 In this spirit, a chorus of purposeful ideologues including Chie f Justice Rehnquist, former Attorney General Edwin Meese, and the enthusiastic young members of the Federalist Society have presented a particular rendering of history and a vision of the past that only confirms Clinton Rossiter's observation that those i n "power who know least about 'the intent of the Framers' are most likely to appeal to it for support of their views."2

The bicentennial should also be a time for those of us in the academy to bring our particular skills to bear on the problems associa ted with understanding "original intention" by more carefully reconstructing and explicating the political and intellectual forces which influenced the Framers.3 One area in which communication scholars can engage this debate and be particularly helpful is with regard understanding the origins of the First Amendment. Free speech scholars, trained in rhetorical and communication theory, grounded in the literature of jurisprudence, and utilizing historical methods can bring a unique perspective to the rhe torical history, implicit values, and contemporary consequences of "original intent" regarding the First Amendment guarantees of freedom of expression.

Unfortunately, even some of our academic colleagues seem confused about the history of actions and i deas surrounding that essential constitutional provision and have further clouded public understanding. Professor Diana Peck of William Patterson College has written that the First Amendment was "penned by Thomas Jefferson."4 While the legislative histo ry of the First Amendment reveals a rather haphazard process of accident, compromise, and revision in its drafting, James Madison guided that process. Jefferson, despite his ideological contributions to intellectual freedom and his personal influence on Madison, was in France during the time of the drafting of both the Constitution and the Bill of Rights.

Stephen Klaidman, a senior research fellow at Georgetown University, has argued for limitations on freedom of expression based upon a somewhat tortu red reading of John Stuart Mill. He also contended that "Madison and his colleagues were intimately familiar with John Stuart Mill's classic essay 'On Liberty,' and they knew . . . that Mill was as concerned with preventing harm as he was with promoting liberty."5 While Madison was a man of considerable intellectual genius and a prescient political philosopher, it is doubtful that he was "intimately familiar" with Mill's essay, first published in 1859.

More dangerous than the mistakes of the uninform ed, however, are the damaging consequences of erroneous arguments by scholars with national reputations for thorough research. The most influential scholarly investigation of original intent and the First Amendment's guarantees of freedom of speech and p ress has been Leonard W. Levy's 1960 Legacy of Suppression, revised in 1985 as Emergence of a Free Press.6 Grounding his argument on the proposition that the Framers of the First Amendment were merely enacting Blackstone's proposition that "the liberty o f the press . . . consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published," he purported "to demolish the proposition formerly accepted in both law and history that it was the intent of the American revolution or the Framers of the First Amendment to abolish the common law of seditious libel."7

Levy claims that his thesis has now become the "new orthodoxy" regarding interpretation of intent of the Framers, and even those who challe nge the "hegemony" of his interpretation admit that his "work in first amendment history has become the conventional wisdom of our generation."8 A number of scholars have convincingly critiqued Levy's argument; however, as Zechariah Chafee observed 50 ye ars ago, and as is obviously true today, "This Blackstonian theory dies hard, but it ought to be knocked on the head once for all."9 That is the purpose of this essay.

I will argue my position through an analysis of the origins of the free speech clau se. Specifically, I will first contest Levy's reliance on Blackstone's statement on liberty of the press as the basis for a consensus view of the Framers' intentions to define and protect freedom of speech. Second, I will contend that Madison's inclusio n of the speech clause was a late decision, although a deliberate and important one. Third, I will show that Madison drew the language of the speech clause from amendments suggested by three state ratifying conventions, first initiated by the Pennsylvani a Minority Dissent of 1787 which appropriated the language of the 1776 Pennsylvania Declaration of Rights. Fourth, I will examine both the genesis and the genius of the 1776 Pennsylvania Declaration of Rights and Frame of Government, the first constituti on to guarantee the free speech rights of individual citizens and to clarify the conceptual scope of political expression. Finally, I will argue the significance of James Burgh's Political Disquisitions as an influential source of political theory--and e specially the theory of freedom of expression in republican governments--for the constitution makers of the revolutionary generation.10

Levy's Blackstone

Sir William Blackstone, whom Levy dubbed "the oracle of the common law in the minds of the American Framers," offered a summary of the common law on libels which held:

Where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law . . . the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. E very freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temer ity. . . . But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of gover nment and religion, the only solid foundations of civil liberty. . . . [T]he disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects.11

By relying on these words from Blackstone to g ive definition to the free speech clause of the First Amendment, Levy's argument suffers from several fatal fallacies and internal inconsistencies. First, Levy assumes and almost casually suggests that the "citizen's personal right of freedom of speech e volved as an offshoot of freedom of the press and freedom of religion--the freedom to speak openly on religious matters," then he proceeds to lump speech and press freedoms together and treats them as undistinguished elements free only from governmental l icensing. While freedom of conscience and religious speech might well have been more important than secular political speech to most British subjects from the beginning of the Reformation until the Glorious Revolution, most citizens were certainly speaki ng about political issues before they were printing pamphlets or newspapers on the subject. Viewing free speech as a derivative of freedom of the press is to see the historical tail wag the jurisprudential dog.

Second, another obvious flaw in Levy's t rickle-down theory of freedom of speech is that the Licensing Acts could never have been applied to oral discourse. Freedom from prior restraint on speech is no freedom whatsoever; it is a non sequitur. As Cooley explained, "The mere exemption from prev ious restraints cannot be all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications . . . ."12

Other than in the context of the Parliamentary privilege of freedom of speech and debate, Blackstone does not mention freedom of speech as one of the British rights and liberties secured by common law. The reason for that omission, said Roscoe Pound, is historical. Seditious speech (both political and religious) was punished in the Court of Star Chamber; therefore, the common law courts were not confronted with the issue, and it was not a point for discussion in Coke's Second Institute--upon which Blackstone based his Commentaries.13 Consequently, when Blackstone dealt with "Rights of Perso ns" in Book I of the Commentaries, observed Eric Barendt, he "did not mention freedom of speech in his discussion of personal liberties, and the classic passage on freedom of the press occurs in [Book IV] dealing with wrongs and libel."14 When British su bjects on both sides of the Atlantic demanded their constitutional rights and British liberties, they clearly meant the rights of persons, not the wrongs of Book IV.15 The closest Blackstone came to articulating an individual right to freedom of speech, says Barendt, is in Book I in his treatment of the right to petition the Crown or Parliament for redress of grievances.16 In that context, the citizen is free from both prior restraint and subsequent punishment for the content of petitions to the King, f or ¤5 of the Bill of Rights provides, "That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal."17

Levy is correct in acknowledging that Blackstone's Commentaries was an influenti al legal treatise in colonial America. It provided a ready summary of common law to a legal community which argued its principles in the colonial courts, and those common law rights were the basis of many early rhetorical appeals demanding that the colon ists be afforded the traditional rights and liberties of British subjects.18 Even in Great Britain, however, Blackstone's views of the law were not unchallenged. As early as 1762, Adam Smith advised his classes in jurisprudence against the prosecution o f even private libels and contended that the liberty to censure the Administration--and the right to publish on these subjects--was now accepted, at least in theory and often in practice.19 In 1769, "Junius" labelled the Commentaries "a snare to the unwa ry" and charged that Blackstone's position on the Wilkes issue was inconsistent with his own writings.20 By 1776, Jeremy Bentham criticized Blackstone's analysis as "at best merely expository--it describes the law as it is--or at worst it is an apology f or the status quo disguised as an exposition."21

The testimony of those whom Levy counts as Framers indicate a wary skepticism of Blackstone on the key issue of rights of citizens. James Wilson, who studied law under John Dickinson and was thoroughly versed in the literature of both law and political theory, did not find Blackstone's views on government particularly applicable to post-colonial America. Blackstone was, in Wilson's view, too much under the court influence of British monarchy. "I cann ot consider him as a zealous friend of republicanism," he said. "In publick law . . . he should be consulted with a cautious prudence. . . . He deserves to be much admired; but he ought not to be implicitly followed." Such critical examination should be applied to all political writers, Wilson argued to his students at the University of Pennsylvania, because the "cause of liberty, the rights of men require, that, in a subject essential to that cause and to those rights, errour should be exposed, in orde r to be avoided."22 Jefferson, in discussing the legal curriculum for the University of Virginia, complained to Madison how young lawyers fed on "the honied Mansfieldism of Blackstone . . . began to slide into toryism . . . . They suppose themselves, in deed, to be whigs, because they no longer know what whigism or republicanism means."23

Levy's argument is further undone when he postures as if Blackstone's Commentaries were the only--or even the most important--influence defining the freedoms which were contested in the revolution and valued by those who wrote the state declarations of rights and later framed the First Amendment.24 Moreover, Levy assumes the existence of a "consensus" among the Framers as to the intended extent of protected express ion under the First Amendment. The probability of any consensus among the Framers on a single meaning or single theory has been convincingly refuted by Richard Parker.25 As Robert Williams recently recognized, "we now know that there was far more fundam ental controversy, as well as diversity of opinion and interest, in the state constitution-making process during the founding decade than was earlier thought."26

John Murrin, noting the difficulty involved in such an enterprise, suggested that while th e Founders might agree that certain fundamental values did exist, "they did not agree on what they were or how to find them. Instead contemporaries had to choose among several competing value systems, each with brilliant articulation in the high thought of the day. Humans being what they are, few chose one set of values to the complete exclusion of all others. Most people absorbed strands from more than one source and did their best to reconcile the tensions that their efforts created."27

This diver sity of outlook held true in the colonies even with regard to views on the common law. Richard Morris has challenged the historical accuracy of Justice Story's assertion regarding the dominance of the common law in colonial America. It was, he said, a d escription of "what nineteenth-century jurists thought had happened to the law rather than . . . a useful rule for guaging colonial experience." Moreover, Morris suggested, "It is now recognized that no monolithic interpretation will suffice to explain t he course and reception of law in America . . . . Many strands were woven into the fabric of American law, . . . and the patterns vary from place to place."28

Consequently, to conclude that all of the participants shared an identical vision on the meaning of any First Amendment clause would be contrary to both communication theory and historical evidence. No simplistic, single-source explanation can stand, not even one which has enjoyed the reputation and influence attributed to Levy's research. Levy cites numerous other sources of political theory and views on constitutional rights, yet he discounted almost all except Blackstone, rejected the possibility of any pre-1798 libertarian theory intended to abolish the common law concept of seditious l ibel, and persisted in suggesting that the free speech and press clauses of the First Amendment "substantially embodied the Blackstonian definition and left the law of seditious libel in force."29 Levy then compounds the difficulties with the implicit re quired assumption that Blackstone was not only descriptive but prescriptive--a logic which would lead to the conclusion that the Framers accepted Blackstone's views on toleration of religious dissent as the basis for understanding intent of the religion c lauses as well.30 Such conclusions regarding the intended protections of the First Amendment are no more warranted than would be claims that the constitutional prohibitions on granting titles of nobility or requiring religious test oaths should be read a s merely reflecting British practices and precedents at common law.

The claims of Leonard Levy and his students notwithstanding, the idea that Blackstone's discussion of libel and limitations on freedom of the press became, for the Framers, the single, universally accepted, prescriptive meaning for the free speech clause of the First Amendment is unconvincing. It falls victim to the internal logic of the argument as well as to considerable external evidence.

I do think it would be helpful to engage the arguments and understand the implications of the various theoretical positions in the colonies and states during the late eighteenth century, and it might be both possible and valuable to better understand the influential texts read by and the meanin gs intended by certain influential Framers. That is what I intend to do below, carefully retracing the source of the language of the free speech clause from the First Amendment to its political and constitutional origins, carefully explicating important texts and examining the intentions of those who drafted the antecedent documents. The assumptions, the texts, and the conclusions differ from those found in Levy's The Emergence of a Free Press.

Madison's intellectual role as the principal Framer of the First Amendment might be dated from his amendment to expand religious liberty in the 1776 Virginia Declaration of Rights. That same document, prepared and proposed by George Mason, contained the first constitutional guarantee for freedom of the press. The press clause, however, does not appear to have been in Mason's original draft of the proposals; it was interlined in the handwriti ng of Thomas Ludwell Lee and appears to have been added on May 25, 1776 by the committee charged with preparing the declaration. While Madison was a member of this committee, there is no evidence to indicate that it was included at his suggestion nor any record to suggest who was responsible for its inclusion. The likely stimulus, however, was an article appearing in the Virginia Gazette on May 18, 1776 referring to "Liberty of the press [as] the palladium of our liberties" and declaring that "liberty o f speech is a natural right."31

Madison's contribution, as an element of Federal constitutional history, began during the Constitutional Convention of 1787. On September 12, as the convention was coming to a close, George Mason argued for prefacing th e proposed Constitution with a federal Bill of Rights, modeled after the state declarations; however, Elbridge Gerry's motion for a committee to prepare a Bill of Rights was unanimously defeated.32 Madison's position on that motion is uncertain. The Vir ginia delegation voted as a unit against the motion, and Madison does not record that he spoke to the measure.

Madison's correspondence with Jefferson following the convention offers the first real insight to his developing support for such amendments. On July 31, 1788, Jefferson expressed his approval of the new Constitution but suggested the need to better secure individual liberties, specifically protection for freedom of the press and freedom of religion.33 Madison, in his reply of October 17, 17 88, acknowledged the public sentiment "for further guards to public liberty and individual rights" and indicated the likelihood that "a constitutional declaration of the most essential rights" would soon be added. As for his own views, he said, "My own o pinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration [in Article I of the original document]. At the same time I have never thought the omission to be a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice." His lack of enthusiasm resulted from his beliefs that the federal government had only the delegated powers enumerated, that it would be difficult to secure some rights (particularly freedom of conscience) with sufficient latitude, that the states would restrain a ssumptions of power by the federal government, and that "experience proves the inefficacy of a bill of rights on those occasions when its control is most needed. Repeated violations of these parchment barriers have been committed by overbearing majoritie s in every state." Nonetheless, he saw two positive purposes of having fundamental rights specified in the Constitution. First, he said, "The political truths declared in that solemn manner acquire by degrees the character of Fundamental maxims of free governments, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion." Second, he added, if the government did attempt to usurp fundamental liberties, "a bill of rights would be a good ground for an ap peal to a sense of the community."34

During Madison's campaign for Congress in 1789, Patrick Henry's Virginia Anti-federalists backed James Monroe and implied that Madison was opposed to any federal bill of rights to protect religious liberty.35 In a letter to George Eve, a Baptist minister serving as pastor of Blue Run Church only a few miles from Montpelier in Orange County, Madison reiterated his earlier reservations about the necessity of amendments but articulated his evolving position on the iss ue, pledging his personal support. He wrote that such amendments could disarm opponents of the Constitution and provide "additional guards in favor of liberty." Under those circumstances, he said, "it is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it, ought to prepare and recommend . . . the most satisfactory provisions for all essential rights, particularly the rights of conscience in the fullest latitude, the freedom of the press, trials by j ury, security against general warrants &c."36 That commitment was sufficient to assure the political support of Eve, John Leland, and other Baptist leaders in the District, and Madison prevailed over Monroe by 336 votes.37

Madison was now firmly commi tted to securing a declaration of rights; however, some still doubted his sincerity. George Mason, for example, said that Madison knew he would "not be elected, without making some such Promises; by them he carried his Election; . . . and to carry on th e Farce,--is now the ostensible Patron of Amendments.--Perhaps some milk & water Propositions may be made by Congress . . . but of important & substantial Amendments, I have not the least Hope."38

When the House of Representatives first organized in Federal Hall at New York on April 1, 1789, Madison quickly demonstrated his belief that a federal bill of rights should further protect individual liberties, rights he had declared to be "essential" and "fundamental" in a republican government. On April 8, he wrote to Edmund Pendleton that he anticipated "no great difficulty in obtaining reasonable" amendments to the Constitution.39 Madison drafted Washington's "Address to Congress," delivered on April 30, in which the President mentioned the anticipat ed amendment process with the hope that "a reverence for the characteristic rights of freemen, and a regard for public harmony, will sufficiently influence your deliberations on the question of how far the former can be impregnably fortified, or the latte r be safely and advantageously promoted."40 Madison also drafted the responding "Address of the House of Representatives to the President," assuring Washington on May 5 that the amendment process "will receive all the attention demanded by its importance ; and will, we trust be decided, under the influence of all the considerations to which you allude."41 Thus, Madison skillfully framed the scene for introduction and approval of the Bill of Rights, and he quickly acted to take control of those amendments .

On May 4, 1789, Madison had given notice that he intended to propose amendments to the Constitution on May 25, but the demands of organizing the new government forced consideration to be postponed until June 8.42 Despite opposition from members believing other matters more important, Madison addressed the House on June 8, 1789, providing the first glimpse of the words which would eventually become the First Amendment, clearly articulating his reasons and intent in proposing the measures and expl aining his vision of the nexus between the proposed amendments and the underlying nature of the political community created by the Constitutional. To protect freedom of expression, Madison proposed an amendment reading, "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.43

In addition, Madison argued for a provision that "No state shall violate the eq ual rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." During subsequent debate on August 17, when Congressman Thomas Tucker of South Carolina moved to strike the prohibition on state government infringements, Mad ison called that clause "the most valuable amendment on the whole list."44 The House voted to retain the restriction, even adding protection for freedom of speech, but the Senate later rejected the provision. Despite similar guarantees in many state con stitutions, Madison seemed to know that freedom of expression would be frequently without any real protection in the state courts and in the face of overbearing majorities.45

The amendment process which resulted in the final wording of the First Amendm ent was rather tedious. On July 21, Madison proposed that his resolutions be debated in the Committee of the Whole; however, the House referred them, along with the changes requested by the state ratifying conventions, to a special committee on which Mad ison served. The committee issued a favorable report on July 28, then the House tabled the report. The report and the proposed amendments were debated in the House during the week of August 13-17, and on August 24 the House approved and sent seventeen a mendments to the Senate.

Senate action on September 2, conducted behind closed doors, resulted in both substantive and stylistic reduction of the list to twelve amendment.46 The Senate Journal does, however, reveal that the Senate defeated a proposal to restrict protection of press freedom to the scope "as hath at any time been secured by the common law," further undermining Levy's Blackstonian thesis.47 As passed by the Senate and referred to a conference committee on September 19, proposed Amendmen t Three read, "Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or the press, or the right of people peaceably to assemble, and petition the government for the redress of grievances." As Robert Rutland said of the Senate revision of Madison's original resolutions, "They slashed out wordiness with a free hand."48 After several substantive and stylistic changes by the conference committee, Con gress approved the revised list of twelve amendments on September 25, 1789. On December 15, 1791, Virginia became the requisite eleventh state to ratify proposals three through twelve which then were certified as adopted, becoming the ten amendments know n as the Bill of Rights.

The legislative process in Congress, still in its mechanical infancy, had modified and condensed Madison's original language, usually with more concern for stylistic parsimony than for precision of meaning. As a result, the hi storical facts of the legislative process provide little insight into the meaning of the words beyond the evidence appearing in the language of the First Amendment; however, Madison's reasoned arguments provide a wealth of information about the intent of the author. Madison called freedom of conscience and liberty of the press "the choicest privileges of the people," and he noted that freedom of speech and conscience are natural rights existing before the governmental compact.49

A careful reading of M adison's speech of June 8 reveals that his primary intention was to secure the rights of the people, both natural rights and political rights arising out of the nature of the compact, against encroachments by government--national and state, executive and legislative--and by powerful and interested majorities in the community. Regardless of the specific form adopted by particular states, and equally applicable to the national government he said, "the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legisl ative, and, in some cases, against the community itself; or in other words, against the majority in favor of the minority."50 Such positive protections of fundamental rights should not be seen as enlarging the powers delegated to the government, but as l imitations on them; should be seen as safeguards against the "necessary and proper" clause being abused to enforce government powers not granted; and could in no way be argued to interfere with the legitimate functions of government by their promoting the rights of individuals.51 It would appear that Madison intended that the Bill of Rights serve as the touchstone for those trying to balance the demands of conflicting powers by giving added weight to individual liberties against the delegated powers of t he government--and as a double protection against the usurpation of both enumerated and unenumerated powers retained by the people.52

While Madison's position regarding the need for ame ndments certainly evolved--prompted by Jefferson's urging, solidified by the congressional campaign, and assured by the adoption of the Constitution--what is less clear is how the speech clause came to be included in Madison's proposals. In all of his re marks previous to introduction of the amendments, Madison stressed only freedom of conscience and liberty of the press, first mentioning freedom of speech in his address of June 8, 1789. In compiling the list of rights proposed on June 8, Congressman Fis her Ames of Massachusetts said, "Mr. Madison has introduced his long expected amendments. They are the fruit of much labor and research. He has hunted up all the grievances and complaints of newspapers, all the articles of conventions, and the small tal k of their debates."53 Of primary importance to Madison, for obvious political reasons, appear to have been the instructions and the recommended amendments from the Virginia Ratifying Convention which, in late June 1788, had requested twenty specific gua rantees. Both Madison and Mason had been members of the Ratifying Convention committee which prepared those proposals, and much of the language in those instructions appears to have been borrowed from the Virginia Declaration of Rights, a document drafte d primarily by Mason and supported by Madison in 1776.

The Virginia call for an amendment protecting freedom of speech, however, could not have been based upon the 1776 Virginia Declaration, because that document contained no free speech clause. In this instance at least, George Mason, Patrick Henry and the Anti-Federalist minority in Virginia, like the North Carolina convention which subsequently recommended an amendment protecting freedom of speech, borrowed the demand from the earlier language o f The Address and Reasons of Dissent of the Minority of the Convention, of the State of Pennsylvania, to their Constituents, a document drafted by Robert Whitehill and widely reprinted and circulated among the Anti-Federalist network in other states.54 < p> As early as October 5, 1787, the Pennsylvania Anti-Federalists had raised the issue of protection for freedom of speech, a right guaranteed under the state's 1776 constitution but which they thought unprotected under the proposed federal Constitution. "Centinel" praised the Pennsylvania Declaration of Rights which, he said, "provides and declares 'that the people have a right of FREEDOM OF SPEECH, and of WRITING and PUBLISHING their sentiments, therefore THE FREEDOM OF THE PRESS OUGHT NOT TO BE RESTRA INED.' The constitution of Pennsylvania is yet in existence, as yet you have the right to freedom of speech, and of publishing your sentiments." Charging that the proposed federal constitution contemplated an unaccountable aristocracy, he said that the Framers, "actuated by the true spirit of such a government, have made no provision for the liberty of the press, that grand palladium of freedom and scourge of tyrants, but observed a total silence on that head." Then, relying upon the force of popular p olitical writings, he joined "the opinion of some great writers, that if the liberty of the press . . . could be rendered sacred, even in Turkey, that despotism would fly before it."55

During the debates of the Pennsylvania Ratifying Convention on Nove mber 30, 1787, William Findley asked that the delegates consider the necessity of a federal declaration of rights. "Powers given--powers reserved--ought to be all enumerated. Let us add a bill of rights to our other securities," he said. John Smilie a greed and promised, "We will exhibit a bill of rights, if the Convention will receive it." Almost as if he were refuting Blackstone and rejecting the limited liberties secured by common law, he said, "Freedom [was] almost unknown in the Old World. Are w e to go there for precedents of liberty? . . . Suppose Congress [were] to pass an act for the punishment of libels and restrain the liberty of the press, for they are warranted to do this. What security would a printer have, tried in one of their courts. " Then, repeating Centinel's warning, Smilie said, "An aristocratical government cannot bear the liberty of the press."56

On December 12, Whitehill urged fifteen amendments he believed necessary before the Constitution could be safely ratified. Sixth among Whitehill's proposed amendments was one reading, "That the people have a right to the freedom of speech, of writing, and of publishing their sentiments, therefore, the freedom of the press shall not be restrained by any law of the United States."57 There is little question that this language was drawn and adopted from Article XII of the 1776 Pennsylvania Declaration of Rights which held, "That the People have a Right to Freedom of Speech, and of writing and publishing their Sentiments; therefore, the Freedom of the Press ought not to be restrained."

After the Convention majority rejected Whitehill's motion for amendments, 23-46, he led a twenty-one member minority in drafting and publishing on December 18 their reasons for opposing ratification , once again repeating verbatim the call for an amendment protecting the freedom of speech and press. The Dissent of the Minority demanded "a Bill of Rights ascertaining and fundamentally establishing those unalienable and personal rights of men, without the full, free and secure enjoyment of which there can be no liberty, and over which it is not necessary for a good government to have control . . . ." Among these essential rights they said, borrowing and combining the words of "Centinel" and "Cato", w as "the liberty of the press, that scourge of tyrants, and the grand bulwark of every other liberty and privilege.58

As the Anti-Federalists learned the strategic value of calling for a Bill of Rights, the Pennsylvania minority's list of suggested amen dments became a model, with other states subsequently modifying it in their own conventions based on the state declarations where such existed. In Virginia, for example, the convention proposed in June, 1788, a list of suggested amendments, the sixteenth of which read, "That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated."59 Virginia's 1776 Declaration of Rights did not contain a speech clause, but declared, "That the freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotick Governments."60 The additional language regarding the people's rights to speech, writing, and publishing their sentiments was almost certainly borrowed from the Pennsylvania Dissent.

In North Carolina, the Convention refused to ratify the Constitution without prior amendments, and on August 1, 1788, duplicated the call for Virgini a's proposed sixteenth amendment, "That the people have a right to freedom of speech, and of writing and publishing their sentiments; that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated." The North Carolina Declaration of Rights, adopted on December 17, 1776, held only "That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained."61

Thus, when Madison turned to the reports of the state ratifying conven tions in search of materials for a federal Bill of Rights, he found three states--Pennsylvania, Virginia, and North Carolina--calling for federal guarantees of protection for both speech and press, using the free speech language first found in the 1776 Pe nnsylvania Declaration of Rights, and joined with the "bulwark of liberty" metaphor from the 1776 Virginia Declaration of Rights. Ironically, this fusion restored the language first used by Thomas Gordon, writing as "Cato" in 1720.62 In Essay No. 15 of Cato's Letters, entitled "Of Freedom of Speech: That the same is inseparable from Publick Liberty," Gordon asserted, "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. . . . All Ministers, therefore, who were Oppressors, or intended to be Oppressors, have been loud in their Complaints against Freedom of Speech, and the Licence of the Press; and always restrained, or endeavoured to restrain, both. "63

While Levy recognized but discounted the influence of Cato's Letters upon the Framers, Anderson argued otherwise: "We know that Cato's rhetoric found its way into the antecedents of the press clause; why should we conclude that the ideas did not?"6 4 As a result of his own research efforts, Clinton Rossiter concluded, "No one can spend any time in the newspapers, library inventories, and pamphlets of colonial America without realizing that Cato's Letters . . . was the most popular, quotable, esteem ed source of political ideas in the colonial period."65 Levy confirmed that assessment as series editor for a collection of Cato's Letters in 1965, and even in 1985, he said, "In the history of political liberty as well as of freedom of speech and press, no eighteenth century work exerted more influence than Cato's Letter's."66 Such an admission undermines either Levy's sincerity or his conclusions with regard to Blackstone's domination of colonial thought regarding freedom of speech and press.

Drafting the Pennsylvania Declaration of Rights

Several scholars have recognized the contribution of the 1776 Pennsylvania Declaration of Rights to the federal Bill of Rights and even to the First Amendment; however, little is known about the crafting of that document, the principal draftsmen, or the source of their ideas. Nix and Schweitzer, for example, made the connection between the 1776 Declaration and the Minority Report, but they attributed the origins of the Pennsylvania Dec laration to the Virginia Declaration and Penn's Charter, a history which overlooks the Pennsylvania origin of the speech clause.67 Certainly the form of prefacing a written constitution with a declaration of rights, and even some of the rights so declare d, were to be found in the Virginia document. An early draft of the Virginia Declaration of Rights was published in the Philadelphia press in early June, and a final version was available by the time the Pennsylvania Convention met.68 Virginia, however, had no free speech provision, no guarantee of petition and assembly, no requirement that the doors of the Assembly be open to the public, no requirement that votes of the Assembly be published, and a much more limited section on religious liberty. The 1 682 Frame of Government could hardly qualify as the precedent or source of the speech provision, because that charter held "That all scandalous and malicious reporters, backbiters, defamers and spreaders of false news, whether against Magistrates, or priv ate persons, shall be accordingly severely punished, as enemies to the peace and concord of this province."69 The 1776 Pennsylvania declaration of Rights was breaking new ground in republican theory and planting the seeds of a concomitant theory of freed om of expression which would eventually bear fruit in the First Amendment.

Bernard Schwartz discussed the importance of Article XII, and acknowledged, "For the first time in any constitutional enactment, it guarantees freedom of speech, as well as free dom of the press (being the direct precursor of perhaps the most significant guarantee of the federal Bill of Rights). Certainly the inclusion of the freedom of speech in the list of fundamental rights guaranteed was a seminal step in the development tha t led to the federal Bill of Rights." Despite recognition of the importance of the speech clause, however, he admitted, "We unfortunately do not know how freedom of speech came to be added to the Pennsylvania Declaration . . . ."70

Prime authorship o f the 1776 Constitution has been attributed by various writers to Benjamin Franklin, George Bryan, Thomas Paine, David Rittenhouse, Samuel Adams, George Ross, Thomas Young, Joseph Reed, and Timothy Matlack.71 My argument in this section is that James Can non was the principal author of the Declaration of Rights and Frame of Government adopted in Pennsylvania in 1776, and this conclusion is generally supported by other scholars of revolutionary Philadelphia, including Hawke, Reyerson, Foner, and Rosswurm.7 2 None, however, have specifically addressed authorship of the speech clause; consequently, I believe it important to examine more closely Cannon's personal background and his philosophical positions in relationship to his probable authorship of the Pen nsylvania free speech clause. Such an investigation should provide a better understanding of the original intent of the constitutional provision which ultimately informed and provided the language in the speech clause of the First Amendment.

James Can non was an experienced and skillful writer, and he was thoroughly grounded in the rhetoric of rights and revolution by the time the Constitutional Convention convened in July, 1776. Although almost completely forgotten today, Cannon was, said Stephen Luc as, "an able advocate" and among "the most effectual Radical rhetoricians." Hawke believed that "except for Sam Adams, possibly no one in colonial America was a more skilled publicist, more adept at using the press to shape men's minds, more brilliant in his timing of manipulated events," and, with regard to authorship of the constitution, concluded, "Cannon's leading role is beyond question." Reyerson called him "by far the most literate and best educated" of the radical cadre and "the most important p enman in Pennsylvania after Thomas Paine," and he said that the constitution "was largely Cannon's own work." Foner agreed that Cannon was "the radical group's leading thinker aside from Paine," said that he "took the leading part in drafting the new con stitution," and called him "the leading voice on the committee which drew up the Declaration of Rights."73

Contemporary evidence provides considerable testimony that Cannon was the leading author of the constitution. John Adams, who had worked closel y with Cannon in orchestrating the overthrow of the proprietary government in Pennsylvania, discounted Franklin's role in the process and attributed its major points to the ideas of Matlack, Cannon, Young, and Paine; Alexander Graydon also disputed Frankl in's contribution and named Cannon as the primary draftsman.74 Thomas Hartley, in a letter to Anthony Wayne, complained of the radical nature of the new constitution, attributing it to "Cannon and his puritanick levelling Party."75

Benjamin Rush, who had also worked closely with Cannon in the early days of the revolution but later opposed the constitution, said that the constitution "was formed by a fanatical schoolmaster who had art enough to sanctify it with Dr. Franklin's name."76 Rush also relate d the story of Francis Hopkinson's reaction to the constitution while they were serving together in the Confederation Congress: "In the midst of a long debate he once amused himself by drawing with a pencil a caricature of the manner in which the first C onstitution of Pennsylvania was forced upon the people. A Brewer and Schoolmaster, who were the most active members of the convention that framed the Constitution, with a dray, and a Schoolboy composed the figures of this picture. The Brewer offers the boy a mug of beer, the boy attempts to thrust it from him, while the Schoolmaster with a rod, compels him to drink it."77

David Ramsay, the historian and future Congressman, knew Cannon well during the two years he lived in Charleston, South Carolina d uring the war. He wrote to his friend Benjamin Rush, telling him that "James Cannon one of the constitution makers is in this town. He is disposed to defend the whole of it on which I have had frequent disputes, particularly about the necessity of a com pound legislature." Unlike Rush, Ramsay did not let this point diminish his respect for Cannon's character. When Cannon returned to Philadelphia, he carried a letter from Ramsay to Rush, confessing, "I almost envy you the pleasure you will receive, & I will lose by the departure of the bearer from Charlestown. He has been my most intimate friend here, & one whose company was always agreeable. His benevolence is equal to his understanding. Although he differs with you on the means of securing the bles sings of good government to the people, yet his wishes that those blessings may be secured are equal to those of his most zealous opposers. Carolina is indeed impoverished by the departure of Mr. Davison (sic) & himself."78

Cannon's own testimony als o supports the proposition that he was instrumental in drafting the constitution. He defended the provisions of the constitution in a public debate against John Dickinson and Thomas McKean on October 21, 1776, and on October 30, defended both the constit ution and his own character in the public press. Writing under the pseudonym, "Consideration," he said the opponents of the constitution held it as "a vile thing, because a certain Schoolmaster had a principal hand in forming it," but suggested that the author was "a learned, sensible and disinterested Patriot."79 In a letter to Robert Whitehill, he said,

You and I appear to be the Butts of the resentment of the gentlemen who do not like the government. I only wish the people may act honestly for themselves and that every one who seeks an alteration in the Plan may do it from a sincere desire to serve his country & secure the Liberties of its Inhabitants on the safest foundation--I am to live but one Life Time--Have none to leave behind me, am not gained by any Plan; but sincerely pray God that that alone may be established which will ever secure their Liberties without future Tumults & Confusion. This I think our present form would do if once fairly submitted to. Two bodies may do well in the L egislature until our present struggle is over, afterwards they will certainly form separate Interests and breed continual Broils in the State--However I wish every friend to his country satisfied and would do anything in reason to effect it--It was a grea t error not to print & distribute properly 10,000 of the copies of the Frame of Government, that the People might see & judge for them selves--This and a prudent conduct would settle the Matter I believe. To God I committ it & his good Providence, I have done what I did in Sincerity & with a sincere love of my neighbours80

Cannon had proven himself a skilled writer in a number of contexts. He was active in the formation of the United Company of Philadelphia for Promoting American Manufactures, "an en tryway into Philadelphia politics for several important ultraradical leaders in the revolutionary movement," and was elected Secretary of the Board of Managers on March 16, 1775.81 In September, 1775, he served as Clerk of the General Committee of Privat es of the Association, and in February, 1776, he headed the Philadelphia Committee of Privates' Committee of Correspondence, drafting the Privates' major broadsides and protests leading to independence.82 Cannon also wrote a number of essays in the local press advocating independence, most notably the "Cassandra essays" in opposition to William Smith's "Cato essays."83 As a result of these experiences, he was prepared to assume a major role in the Constitutional Convention, and he was quickly recognized and accepted as a capable advocate and draftsman by the delegates who were familiar with his skills and activities. During the Convention, he served on nine different committees--more than any other delegate.84 Cannon's drafting and writing skills had become so evident by the close of the Convention that he was appointed to draft the Preamble on September 25 and to the committee to revise and print the Minutes on September 28.85

The minutes of the proceedings of the 1776 Constitutional Convention p rovide little detail of the debates; however, they do provide evidence to suggest Cannon's role in drafting the Declaration of Rights. The Convention organized on July 15, and a committee, consisting of one delegate from each county and the City of Phila delphia, was appointed on July 18 to prepare a Declaration of Rights. This Committee was given leave to prepare a draft on Monday, July 22, and it reported a draft Declaration of Rights on Thursday, July 25. On that day, the Convention tabled the draft report and, apparently dissatisfied with the work of the committee, added six new members to the committee--Timothy Matlack, James Cannon, James Potter, David Rittenhouse, Robert Whitehill, and Bartram Galbreath. On Friday, July 26, with Cannon and the r adicals now in control of the drafting committee, the report was recommitted to the expanded committee, and that evening they transformed their ideas into words and formulated the text. The next morning, Saturday, July 27, the committee reported a new dr aft of the Declaration of Rights which was read and debated by paragraphs that day and the following Monday, July 29th. At the end of the debates on Monday, the convention ordered 96 copies printed for further consideration by the Convention. This draf t contained Article XII, the speech and press clause, which was modified only in style when it was again debated on August 13, 15, and 16, and adopted on August 16th.86

Some insight into the convention action can be gleaned from letters sent by the Sec retary of the Convention, John Morris, Jr., to John Dickinson. On July 30, as the convention entered its third week, Morris wrote, "I need not inform you how very closely the nature of my employment in the Convention employs me; Indeed I have scarce an h our that I can call my own. . . . They have done a variety of Business, but have scarce entered upon Essentials yet. You will see by the Inclosed, which is one of the copies of the Intended Bill of Rights (printed merely for the consideration of the Mem bers) what is the present object of their Deliberation. I wish most heartily that you could have been with them on this Important Subject."87

One week later, Morris observed, "The further consideration of the Bill of Rights has not yet been resumed, s ince ye Printing--nor do I hear of any time fixed for that Purpose. The Frame of Government is yet with the Committee & we know nothing more of it, than that it is resolved that the Future Legislative Body shall consist of one Branch only & not of two, a s was strenuously contended: The Debate on that point alone took up Seven hours Debate in a Committee of the whole Convention."88

Three days later, on Sunday, August 11, Morris noted that the convention was concentrating on militia matter and had not yet debated the Bill of Rights or the Frame of Government. At the end of the week, however, he reported, "The Convention has spent all this week in Deliberating on their Bill or Declaration of Rights, Wch with Difficulty, was last evening reported to the House by the Committee of the whole; It is altered a good deal from the printed, and yet is, upon the whole, pretty much the same."89

The Declaration of Rights, adopted on August 16, was published for public consideration on August 20.90 The only sur viving public comment suggests an expansive public interpretation of the speech clause, one with little regard for the Blackstonian thesis and with implicit disdain for the concept of seditious libel. The writer observed,

Freedom of speech and writi ng on matters of public concern, having in every free country been considered the best bulwark to preserve the spirit of liberty from degenerating into supineness and slavery, it gave me great pleasure to observe that the Convention of Pennsylvania, in th eir declaration of rights of the inhabitants, have made it an object of their deliberation, viz. 'That the people have a right to freedom of speech and of writing and publishing their sentiments, therefore the freedom of the press ought not to be restrain ed.'

. . . To those who indulge the idea, that the conduct of men in public stations are exempt from impartial scrutiny, entertain notions incompatible with the good of society, for it is not merely the men but the measures which form the good or ill of society; it is the right of examination, and to remedy the defects, that constitute the safety of the people; and when that right is infringed, the constitution falls a sacrifice to tyranny and usurpation . . . .91

In addition to the free speech cl ause of Article XII in the Declaration of Rights, an important provision in the Frame of Government--the text of the Constitution itself--should also be noted for a better understanding of the meaning of freedom of expression. Section 35 of the Frame dec lares, "The printing presses shall be free to every person, who undertakes to examine the proceedings of the legislature, or any part of government." Leonard Levy remarked that the provision "opened every branch of government to criticism and the doors o f the Assembly to the public, allowing printers to publish debates without prior approval, which was necessary in the past, and without breaching parliamentary privilege. We do not otherwise know what Pennsylvania meant by 'freedom of speech' or press."9 2

A closer examination of the work of the Convention, however, reveals much about the thinking of the Committee which drafted the section. The Committee reported a draft Frame on Monday, August 19; it was debated on nine days between then and Septembe r 5, when it was ordered printed for public consideration and comment. This proposed Frame contained the provisional ¤36, which began with the same language, "The printing-presses shall be free to every person who undertakes to examine the Proceedings of the Legislature, or any part of the Government." However, the clause continued in language which further declared, "and the House of Representative shall not pass any Act to restrain it: Nor shall any Printer be restrained from printing any Remarks, St rictures, or Observations on the Proceedings of the General Assembly, or any Branch of Government, or any public proceeding whatever," indicating an expansive view of public commentary on the public policy process.93

More importantly, perhaps, the prop osed ¤36 also extended the protection for citizen opinion regarding "the conduct of any public Officer, so far as relates to the execution of his office." Cannon and the drafting Committee intended, then, unrestrained and unpunished speech and writing on both policy and public officials, limited only by the final exception, "provided it does not extend to the informing an Enemy in actual war, concerning our strength, weakness, disposition, or any other thing which may serve the Enemy, and injure the Stat e."94 This communication to assist the enemy in an actual war was the only exception to complete freedom of political discourse, a limitation which clarifies the extent of protection which they intended to declare and which provides an explanation for th e numerous restrictions on the speech of Loyalists during the American Revolution. This language also goes far beyond the press clause of the 1776 Virginia Declaration of Rights and does much to undermine Levy's position that the common law notion of sed itious libel and the Blackstonian definition of freedom of the press maintained the hegemony he supposes.

Convention action, sometime between August 19 and September 5, deleted the last part of the Committee's proposed language, but the reasons for dro pping the additional language is unclear. The Journal is of no help in understanding the change, and there appears to have been no surviving public discussion on the point, so we have no documentary evidence as to whether the language of ¤36 was shortened by the Delegates as a matter of principle or as a matter of style.95

As with the speech clause in the Declaration of Rights, this second press clause was mentioned only once in the newspaper commentary during the sitting of the convention. The write r began deferentially by suggesting, "However censurable a man may become, by differing in opinion with some part of the community, it ought not to lessen his right and his duty to communicate his sentiments, whenever he apprehends the happiness and safet y of the people to be in danger." Then, warming to that right and duty, this dissenting citizen became more bold. "The right of publishing my sentiments, I claim on the general principles of liberty and self preservation." Moving beyond this abstract d iscussion of natural rights, however, the writer noted, "The Convention for the state of Pennsylvania have [sic] preserved this right defensible, by inserting of it in the Declaration of Rights, and intending to admit it in their proposed frame of governm ent, to wit, 'that the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of the government,' &c." Continuing to gird the protection for critical commentary, this anonymous author said , "therefore I am induced to examine into some part of the proceedings of the Convention, and hope no evil tendency to the public will arise from the examination." The writer then launched a bitter attack on the Convention, criticizing its delay, its exp enses, its exceeding its authority, and its passing ordinances which interfered with such fundamental rights as political speech, trial by jury, and habeas corpus.96

Even those who reprobated the constitution most severely because of its unicameral Ass embly and the political loyalty oath, however, appear to have been fully supportive of the freedom of speech provisions in the Declaration of Rights. In a meeting on November 2, 1776 to select a slate to oppose the "Constitutionalist" candidates for the first Assembly, the more moderate "Republicans" declared their acceptance of such fundamental principles as freedom of press and other provisions in the Declaration of Rights.97 Benjamin Rush later complained that the new Assembly was acting like the Bri tish Parliament and infringing upon the freedom of speech, freedom of press, and freedom of assembly and petition guaranteed by the constitution.98 And John Adams, one of the most outspoken critics of the constitution, in preparing the draft of the Massa chusetts Declaration of Rights in 1779, copied the Pennsylvania language as Article XVII, "The people have a right to the freedom of speaking, writing, and publishing their sentiments. The liberty of the press, therefore, ought not to be restrained." Wh en the Massachusetts convention renumbered the section, deleted any reference to freedom of speech, and changed the language to read, "The liberty of the press is essential to the security of freedom in a state; it ought not, therefore, to be restrained i n this commonwealth," one historian noted, "Much objection was made to it, among the people, as insufficient."99 This language, which the people thought insufficient, Levy attributes to Blackstone's Commentaries.100

Intellectual Sources of t he Pennsylvania Framers

To suggest that Cannon and the other delegates to the Pennsylvania Constitutional Convention of 1776 "invented" the concept of freedom of speech which they wrote into the Declaration of Rights is not the purpose of this paper. Rather, I hope to explicate the meaning and intention which they assigned to that clause, and that understanding is to be found in the intellectual milieu in which they operated. As Morton White stated so well,

. . . we may repeat what scholars have always known, and what most candid rebels always admitted, namely, that they did not invent a single idea that may be called philosophical in the philosopher's sense of that word. The self-evidence that the revolutionaries applied to their truths when they used an old term of epistemology, the essence or nature of man to which they appealed in their metaphysical moods, the concept of equal creation that loomed so large in their theology, the unalienable moral rights they defended, and the h appiness they were so bent on pursuing as individuals and as a people--all of these ideas were familiar to distinguished Western philosophers and jurists before they were used in the political slogans of American revolutionaries. But we cannot understand how the revolutionaries used these ideas without detailed probing of their writings and of those writings from which they borrowed.

In spite of being philosophical borrowers, the revolutionaries deserve to have their philosophical reflections read car efully because they seriously used philosophical ideas while leading one of the great political transformations of history. Though they wrote their philosophy as they ran, many of them were men of considerable intellectual power, trained in the law and f ully capable of grasping most of what they read in the writings of distinguished moralists and jurists.101

The first state constitutions, in many ways, "stand as the fulcrum in American constitutional history," representing the experiences and ideologi es of the past, articulating a political culture for their immediate time, and grounding the future and the national constitution which was to follow.102 Pennsylvania's experience in forming a constitution was somewhat different from the other new states , giving it an especially important role in revealing the ideological currents of the moment, due to the speed with which the radicals overthrew the proprietary government and replaced it with one of their own design. "Because of the peculiar abruptness of its internal revolution," observed Gordon Wood, "Pennsylvania tended to telescope into several month's time changes in ideas that in other states often took years to work out and became in effect a laboratory for developing of lines of radical Whig tho ught that elsewhere in 1776 remained generally rudimentary and diffuse."103 This situation was, indeed, recognized and seized by the radicals in Pennsylvania. They clearly knew they had, as Thomas Paine declared in Common Sense, "every opportunity and e very encouragement before us, to form the noblest purest constitution on the face of the earth. We have it in our power to begin the world over again." Nowhere in their work was this opportunity more fully realized than in the symbiosis of republican th eory and communication rights, contemplating and structuring a government based upon and powered by the informed voice of the sovereign people.104

While American revolutionary rhetoric began with insistence upon British liberties and "the rights of Eng lishmen," the radicals in Pennsylvania were now demanding more. Cannon, for one, was not especially impressed with the current state of British liberties. "I have engaged in the present political controversy with a design to be of service to my country. On an impartial inquiry into the present state of the British constitution, it appears to me that it is out of the power of the British legislature to give us security for the future enjoyment of our rights and liberties," he wrote just three months bef ore the convention. "The point with me has ever been, what will secure our liberties? The question of interest is ever determined thereby. . . . It is of small consequence to America . . . whether the constitution of their government answers excellentl y to the inhabitants of that island, if dependence on that excellent form of government is big with slavery and ruin to America."105

Another important point to remember is that John Dickinson, James Wilson, Thomas McKean, and the other leading attorney s of Pennsylvania--men who were steeped in Blackstone and the common law--were not among the convention delegates who framed the Pennsylvania Constitution and the Declaration of Rights. In urging the election of delegates to the Convention, Cannon advise d the voters in the militia:

A Government made for the common Good should be framed by Men who can have no Interest besides the common Interest of Mankind. It is the Happiness of America that there is no Rank above that of Freemen existing in it; an d much of our future Welfare and Tranquillity will depend on its remaining so for-ever; for this Reason, great and over-grown rich Men will be improper to be trusted . . . . Gentlemen of the learned Professions are generally filled with the Quirks and Qu ibbles of the Schools; . . . we would think it prudent not to have too great a Proportion of such in the Convention--Honesty, common Sense, and a plain Understanding, when unbiased by sinister Motives, are fully equal to the Task--Men of like Passions and Interests with ourselves are most likely to frame us a good Constitution.106

Perhaps as a result of this persuasive appeal, very few lawyers were elected to the Convention; the delegates were men more likely to have read Cato's Letters than Blackston e's Commentaries and more concerned with promoting democracy than with preserving decorum. In assessing the character of the delegates, Selsam said, "The Convention was not composed of great men. There were few of outstanding ability, but for the most p art the members were farmers and merchants, the majority of whom were Associators."107 Francis Alison charitably characterized the majority as "mostly honest well meaning Country men, . . . but entirely unacquainted with such high matters."108 Charles T hompson thought the political circumstances had placed "the affairs of state into the hands of men totally unequal to them," and was apprehensive about "the error, which I fear [they] will through ignorance--not intention--commit, in setting the form of g overnment."109 Thomas Smith, himself a delegate, remarked that "not a sixth part of us ever read a word on the subject" of government, and later complained of the influence of "a few enthusiastic members who are totally unacquainted with the principles o f government. It is not only that their notions are original, but they would go to the devil for popularity, and in order to acquire it, they have embraced leveling principles, which . . . is a fine method of succeeding."110 A newspaper satirist, writin g shortly after the convention rose, charged that "our leading men have never had much experience in public affairs," and blamed the perceived defects in the constitution on "so many plain country folks being in the Convention."111

Cannon and the othe r "plain country folk" in the convention, must have drawn confidence, in the face of contemporary critics who thought only lawyers could make constitutions, from James Burgh's defense against the charge "that a private gentleman, who has never been employ ed in the state, is less likely to be of service to the public by writing on political subjects." Burgh countered by citing Harrington's retort that Aristotle's Politics was "a valuable and lasting commentary by a private man."112 Likewise, "Junius" cri tiqued the constitutional doctrines of Blackstone and Mansfield with considerable effect, yet he confessed, "I am no lawyer by profession, nor do I pretend to be more deeply read than every English gentleman should be, in the laws of his country. If, the refore, the principles I maintain are truly constitutional, I shall not think myself answered, though I should be convicted of a mistake in terms, or of misapplying the language of the law." Instead, he said, "I speak to the plain understanding of the pe ople, and appeal to their honest, liberal construction of me."113 Cannon must have believed--and James Madison later proved--that it was not necessary to be an attorney to craft a constitution grounded in republican theory.

In one of the more thorough analyses of the 1776 Constitution, Selsam concluded that "the influence of English political thought is plainly discernible" in the Declaration of Rights, casually suggesting (without citation or demonstration) the presence of ideas from Locke, Harringto n, Hume, Sydney, Montesquieu, and Blackstone.114 A number of more libertarian views on freedom of expression, however, were also present in the political environment of revolutionary Philadelphia, and Cannon was almost certainly exposed to many of them. The newspapers regularly featured reprints of "Cato's Letters", news of the controversy over John Wilkes' "North Briton No. 45" and his subsequent trial for seditious libel, and the "Letters of Junius" against Lord Mansfield's views on seditious libel. In addition, The Crisis was also a popular vehicle for the propagation of Cato's views on the subject. Christopher Marshall related that Cannon brought copies of Crisis No. 1 and Crisis No. 2 to his home on April 21, 1775, and the next day he noted a loc al press report "under the London head, Feb. 7" that Crisis No. 3 and a pamphlet entitled The Present Crisis with Respect to America had been burned by two sheriffs and the hangman at the Royal Exchange in London.115 A total of twenty-seven issues of Th e Crisis were reprinted in the colonies by Benjamin Towne in Philadelphia and John Anderson in New York. The Crisis No. 26, on the Right of Petition, praised Cato, and, almost as if addressed to the colonies, said, "Freedom of speech and writing is the f irst, and most glorious privileges of a free people: this the authors claim as a right, and this they are firmly resolved to use and defend: for to this privilege we may again stand indebted, for another REVOLUTION."116

As a member of the Library Com pany of Philadelphia, Cannon had easy access to such holdings as Cato's Letters (London, 1748), The North Briton (London, 1764),The Crisis, A Brief Narrative of the Case and Tryal of John Peter Zenger(1736), as well as the Bell's Philadelphia edition of B lackstone's Commentaries containing rejoinders from Priestly and Furneaux on liberty of conscience and other treatises on political topics and moral philosophy.117 Besides serving as the library for the Continental Congress during the revolution, and lat er for the Confederation Congress and the Federal Convention, the Library Company was frequented by a broad spectrum of readers. Jacob DucheĞ observed with pleasure "the general taste for books, which prevails among all orders and ranks of people in this city. The librarian assures me, that for one person of distinction and fortune, there are twenty tradesmen that frequented this library."118 The holdings of the Library Company, founded in 1731, had grown to more than 2,000 titles and more than 3,800 v olumes by 1774; there was a thriving publishing industry in Philadelphia; and "pamphlets and books from Europe could be purchased in any of the seventy-seven bookshops which existed in the city between 1761 and 1776."119

A source which Selsam overlooke d, as did Levy, is James Burgh's Political Disquisitions, a book with which Cannon and his contemporaries were quite familiar. Burgh requested the London publisher to send a copy of the book to John Dickinson in March 1774, and he did so with the comment that it "meets with the highest approbation from all the friends of Liberty."120 Such an assessment could not have been far off the mark, for John Wilkes would shortly buttress his arguments in the Commons by almost casually referring his colleagues to Burgh's analysis for the detailed support.121 Political Disquisitions was quickly reprinted by subscription in Philadelphia by Robert Bell and William Woodhouse, with the first two volumes appearing in June, 1775, and the final volume in October, 1775.1 22

Excerpts from Burgh were almost immediately reprinted in the Philadelphia newspapers, especially those sections which seemed to privilege the power of the people over that of Parliament (and, by implication, the Pennsylvania Assembly).123 Burgh, in informing the reader of his political stance, borrowed Cato's description of an independent whig as one who "scorns all implicit faith in the state, as well as the church. The authority of names is nothing to him; he judges all men by their actions and behaviour, and hates a knave of his own party as much as he despises a fool of another. He consents not that any man or body of men shall do what they please." Rejecting the premises of seditious libel, he continued, "He claims a right of examining all public measures, and if they deserve it, of censuring them. As he never saw much power possessed without some abuse, he takes upon him to watch those that have it; and to acquit, or expose them, according as they apply it to the good of their country, or their own crooked purposes."124

Almost from its first appearance, the public was aware of the utility of the principles articulated in Political Disquisitions for framing a new political order. One of the advertisements for the set promised that

perusal of the work at this important period will be attended with the most salutary and certain advantages, if the inhabitants of America will be so rational as to act wisely, in taking warning from the folly of others, by permitting no ministerial extr avagances to enter into their plan. They will then start fair, for laying a sure foundation that freedom shall last for many generations; and the great expense of blood and treasure, which the present grand conflict must cost, will in some measure be com pensated for by the goodness and permanency of the new erection, which must be constructed, if the infatuated ministry of Britain continue to persist in the ignominious attempt of making Freemen Slaves.125

At the time of publication, Bell and Cannon we re acting in concert as members of the Committee of Privates. They had been acquainted for almost ten years, with Cannon's former home and schoolroom in close proximity with Bell's bookstore and printing shop in Third Street, next to St. Paul's. While C annon was not an advance subscriber for the book, there can be little doubt that he was thoroughly familiar with its contents.126 The "encouragers" for the publication, however, did include the Library Company of Philadelphia; Cannon's close friends Fran cis Alison, Christopher Marshall, Benjamin Rush, and Thomas Young; and other prominent Pennsylvanians such as William Allen, Robert Aitken, Richard Bache, John Bayard, John Cadwalder, Sharp Delaney, Thomas Proctor, William Smith, Anthony Wayne, and Joshua Maddox Wallace.

Among the 96 Delegates to the 1776 Constitutional Convention were subscribers George Ross, Bartram Galbreath, James Smith of York, Samuel Smith, George Clymer, George Schlosser, John Bull, and William Coates--three of whom served on th e committee which drafted the Declaration of Rights. Benjamin Franklin, President of the Constitutional Convention, and Benjamin Rush, a leader of the Provincial Conference which called the Convention, were both personally acquainted with Burgh during th eir time in England. This "web of personal relations between English Dissenters and American radicals undergirded the written word," said Staughton Lynd, shaping the ideas of the day by "elaborating the characteristic themes" of Trenchard and Gordon and reaching back to draw from the republican ideology of John Lilburne.127

At the continental level, members and officers of the Congress who were advance subscribers to the publication included George Washington, Samuel Chase, John Dickinson, John DeHart , Silas Deane, Christopher Gadsden, Robert Goldsborough, John Hancock, Michael Hilleps, Thomas Jefferson, Jared Ingersoll, William Jackson, Thomas Mifflin, Henry Middleton, Thomas McKean, Alexander McDougall, Joseph Reed, John Sullivan, Roger Sherman, Cha rles Thompson, James Wilson, and John Joachim Zulby.128 James Madison, only twenty-three at the time, was not among the subscribers, but Political Disquisitions was among the volumes he recommended for the Congressional library in 1783, was referenced in his memorandum prepared for the Virginia Ratifying Convention, and was cited in his "Federalist 56." John Adams said it was "a book which ought to be in the hands of every American who has learned to read," and Thomas Jefferson recommended it in 1790 to Thomas Mann Randolph as essential reading for a legal education.129 It was neither an obscure nor an insignificant work among those who crafted the constitutions for the new states and the new nation.

A review of recent scholarship reveals that pract ically every historian of note--except Leonard Levy--has recognized the ideological importance of James Burgh's Political Disquisitions to the political culture of the American Revolution and the generation which framed the Constitution. Bernard Bailyn j udged it "the key book" by which the contemporary English radicals such as Price, Priestly, and Cartwright influenced the political thought of American colonists.130 Priestly and Price, he said, while influential, were "lesser writers, no doubt" when com pared with Burgh. While the ideas of Locke and Montesquieu were known by some in every colonial assembly, it was even more important that the books of Burgh and other "transmitters of English nonconformist thought" were known by someone "in almost every village of every colony."131

Edmund Morgan said that Political Disquisitions "achieved instant popularity in the colonies.", and Oscar and Mary Handlin argued that it "had a widespread influence upon the revolutionary generation--not only upon the lea ders, but even more upon the common folk."132 Forrest McDonald counted Burgh's treatise among the opposition literature which was "widely known" in the colonies, and which by 1776, he said, "had been thoroughly absorbed into the American political vocabu lary."133 Isaac Kramnick believed that Political Disquisitions was "a veritable sourcebook for the reformers who were to plague George III and his ministers through the era of the American and French revolutions" and said it was "devoured" by the America n colonists.134 Caroline Robbins called the work "perhaps the most important political treatise which appeared in England in the first half of the reign of George III."135 Gordon Wood, who credited Burgh with preserving the line of classical republican arguments from Trenchard and Gordon, suggested that Burgh's ideas on making a new commonwealth presented "a provocative challenge that seemed to the Americans of 1776 to be somehow providentially directed at them."136 By this time, Burgh and the more rad ical Whig writers "were talking of natural rights rather than toleration, and demanding that English liberties be drastically broadened rather than merely preserved."137

Blackstone, on the other hand, said Paul Conkin, "was as far as anyone from antici pating imminent constitutional developments in America."138 No one other than Leonard Levy has argued that Blackstone's views on sovereignty, power, and liberty should be dispositive for understanding fundamental political rights in a republic; in fact, most would agree with Chafee that Blackstone was "notoriously unfitted to be an authority on the liberties of American colonists, since he upheld the right of Parliament to tax them, and was pronounced by one of his own colleagues to have been 'we all kno w, an anti-republican lawyer.'"139 James Burgh, however, sided with the colonists on the question of taxation. As for his opinion of Blackstone's views on rights and liberties, he confessed, "I cannot help considering judge Blackstone as one of the many among us who endeavor to lull us asleep in this time of danger. I owe I do not understand his ideas of free government."140

It is more than curious that Levy continues to maintain his position with regard to Blackstone's dominance in the thinking of the framers and completely ignores the influence of Burgh which is so apparent to other scholars. It is unlikely that Levy is unaware of the scholarly literature assessing Burgh's importance. It is even more unlikely that Levy is unaware of Burgh's argu ments on freedom of speech and press, since Levy was general editor of the Da Capo Press reprint series which reissued Burgh's Political Disquisitions in 1971. He does cite the 1970 Da Capo reprint of William Bollan's The Freedom of Speech and Writing up on Public Affairs, Considered, with an Historical View (London, 1766), calls it "the most learned work in English on the subject of free speech" and incorrectly pronounces it "the last restatement in English of the theory and function of free expression u ntil 1793."141 Curiously, Levy does not even mention Burgh in his clever and elaborate treatment of arguments in the text of Emergence of a Free Press.142 To have engaged Burgh's arguments and the extent of his influence would have severely damaged the conclusions Levy persists in defending.

Many of the distinctive features of the Pennsylvania Constitution of 1776 are almost prescribed in Burgh's treatise: that the people are the source of all authority, that equal representation is necessary, that annual elections should be combined with rotation in office, that all elections should be by ballot, that representatives must be accountable to their constituents through open sessions and published journals and speeches, that freedom of petition and ass embly are essential rights, that the people have the right of instruction of their representatives, that excessive luxury and wealth can be dangerous to states, that the militia is far superior to the evils of standing armies, and that precautions and pun ishments must be enforced to prevent corrupt elections.143 While these arguments were not exclusive to Burgh's work, the correspondence between his chapter headings and the sections of the Pennsylvania constitution appear related by more than coincidence .

Even before Congress adopted the Declaration of Independence and even before the Pennsylvania Provincial Conference had called for a Constitutional Convention, the radical rhetors in Phil adelphia had called for "a fixed, free constitution, derived from the people alone, in such way that all may enjoy equal liberty, both civil and religious," specifically mentioning the need "to settle the freedom of the press by the constitution."144 It would have been an easy task for Cannon to have borrowed the truncated language of Cato's Letter No. 15 as it appeared in the Virginia Declaration of Rights for a press clause as he did in phrasing other rights included in the Pennsylvania Declaration of Rights.145 However, he chose to fashion a different speech clause, just as he did with the expansive provision for religious liberty, with the new requirements that the doors of the Assembly be open and that the votes be recorded and published for public examination, and with the guarantee for the rights of assembly, petition, and instruction.

Burgh devoted twenty pages to a chapter entitled, "Of the Liberty of Speech and Writing on Political Subjects," and here, I contend, is the source of inspiratio n for including the "speech clause" in the 1776 Pennsylvania Declaration of Rights. Unlike other principal drafters of the new state constitutions, Cannon was formally trained in rhetoric, was especially aware of the role and power of public speaking, an d was, in fact, the teacher of public speaking at the Academy and College of Philadelphia. It is not surprising, then, that he would recognize this particular nuance, find it salient, and include language specifically enumerating and protecting freedom o f speech in the Declaration of Rights.

James Cannon attended the High School at Edinburgh and matriculated at the University of Edinburgh where the faculty included Adam Ferguson in Moral Philosophy, Hugh Blair, Professor of Rhetoric and Belles Lettres , and John Stevenson, Professor of Logic. Cannon came to Philadelphia in 1765 and graduated from the College of Philadelphia in 1767, having studied rhetoric with William Smith and logic and moral philosophy under Francis Alison.146 Under Alison, Cannon studied Watts' Logick and absorbed Francis Hutcheson's views on natural rights and his admonition that "the power of reason and speech" were to be used to further "the general good."147 Smith told his students that rhetoric was "one of the last accompli shments of the true Scholar and useful Citizen" which might be seen as "the Means of propagating Wisdom and pushing our Discoveries in the Acquisition of Truth . . . or of inlarging the Understanding, exalting the Mind and dispelling the Mist of Error; or . . . as the powerful Bond of Society . . . . Without it our boasted Reason would not have its full Use." While rhetoric was certainly subject to abuse, he said, "in the possession of a good Man, the Power of Eloquence is a Blessing Indeed! It makes h im the Patron of Honor, the Protector of the injured, the defender of Justice, and the great Arbiter of the most important Deliberations."148

Following graduation, Cannon opened a private school in Moravian Alley in January, 1768, where he taught "the English, Latin, and Greek Languages, Writing and Arithmetic, in all its Branches; likewise Algebra, Surveying, Navigation &c.," and he later moved to "his School-House in Third-Street, near the Union Library."149 Cannon developed a solid reputation among both the public and the local educational community, and he was awarded a Master of Arts degree by the College of Philadelphia in June, 1770.150 When the Trustees at the Academy and College of Philadelphia became concerned about the inattention to the t eaching of oratory since the resignation of Professor Kinnersley in October 1772, Provost Smith advertised for a qualified replacement, Cannon applied, and he was appointed Professor of English and Mathematics in November, 1773.151 Upon his death in 1782 , one account recalled,

His well known abilities procured him an invitation to a professorship in that seminary where he had received the first honors of literary merit. In this station he acquitted himself with honour, and by his diligence, care an d fidelity not only recommended himself to the esteem of those respectable gentlemen who first appointed him, but also to the notice and approbation of the present honourable board. Besides his abilities as a scholar, he possessed those amiable qualities of the mind which in different parts of the continent, both in public and private life, procured him the esteem of the virtuous and discerning. The cause of freedom and of his country lay always near his heart . . . .152

As Master of the English Sch ool of the Academy, Cannon's duties included teaching oratory and public speaking to the students, one of the more prominent functions in the curriculum.153 In this capacity, Cannon quite likely used Burgh's The Art of Speaking as a textbook in the Acade my.154 Burgh, in this volume, emphasized the role of public speaking in public affairs. He wrote and Cannon would have taught, "In parliament, at the bar, in the pulpit, in committees for managing public affairs, in large societies, and on like occasion s, a competent address and readiness, not only in finding matter, but in expressing and urging it effectually, is what, I doubt not, many a gentleman would willingly acquire at the expense of half his other improvements."155 Therefore, Cannon's education al training and his role as English Master and teacher of public speaking led him to an early acquaintance with Burgh's writing, an appreciation for the role of public discourse, and an awareness of the importance of freedom of speech. While he would not encounter any discussion of the citizen's "freedom of speech" in Blackstone's Commentaries, he would certainly find it in Burgh's Political Disquisitions and be inclined to infuse both the language and the meaning when drafting the Declaration of Rights .

Burgh's understanding of freedom of speech and press is certainly not that embraced by Blackstone. He boldly invokes the nature of sovereignty and the concept of republican representation to undermine the validity of the concept of seditious libel. He is not concerned here with protection from any licensing schemes of the government; that was hardly a concern anywhere in the empire in the 1770s. His understanding of the right was that it should immunize individual citizens against "punishment inf licted by government upon complainers." Such action, he said, "is certainly one of the most atrocious abuses, that a free subject should be restrained in his inquiries into the conduct of those who undertake to manage his affairs." All public officials, he asserted, "are answerable for what they undertake: but if it be dangerous and penal to inquire into their conduct, the state may be ruined by their blunders, or by their villainies, beyond the possibility of redress."156

Underlying Burgh's argumen t is the important republican premise that sovereignty originates only with the people and, therefore, they retain the essential right to discuss the policies which they wish to adopt and the conduct of those temporarily vested with the responsibility to execute their wishes.157 "In a petition to parliament, a bill in chancery, and proceedings at law, libellous words are not punishable; because freedom of speech and writing are indispensably necessary to the carrying on of business." In a true republic where the people are sovereign, the same is implicitly true with regard to the discussion of public officers and public policies. Yet, Burgh acknowledged, "it may be said, there is no necessity for a private writer to be indulged the liberty of attacking the conduct of those who take upon themselves to govern the state." Demonstrating the importance which individual freedom of speech held in his constitutional scheme, Burgh answered,

That all history shews the necessity, in order to the preservatio n of liberty, of every subject's having a watchful eye on the conduct of Kings, Ministers, and Parliament, and of every subjects being not only secured, but encouraged in alarming his fellow-subjects on occasion of every attempt upon public liberty, and t hat private, independent subjects only are like to give faithful warning of such attempts; their betters (as to rank and fortune) being more likely to conceal, than detect the abuses committed by those in power. If, therefore, private writers are to be i ntimidated in shewing their fidelity to their country, the principal security of liberty is taken away.158

Moreover, Burgh was prepared to go even beyond the limits on freedom of speech advocated by Gordon in Cato's Letters. While Gordon would draw th e line in No. 15 at private libel,159 Burgh contended, "Punishing libels public or private is foolish, because it does not answer the end, and because the end is a bad one, if it could be answered."160 As to unjust defamers, Burgh had observed earlier in The Dignity of Human Nature, they would be punished by God. When confronted by libels, he advised, "To defeat calumny, 1. Despise it. To seem disturbed about it is the best way to make it believed. And stabbing your defamer will not prove you innocent . 2. Live an exemplary life. And then your general good character will over power it."161 Personal retribution for private libels was unwise and unnecessary; state action against citizen criticism of public officers was not only ill advised but unwarra nted and illegal. Consequently, he concluded, damage to the political character of public ministers was nothing compared with the possible fate of the nation. "Therefore no free subject ought to be under the least restraint in respect to accusing the gr eatest, so long as his accusation strikes only at the political conduct of the accused: his private we have no right to meddle with, but so far as a known vicious private character indicates an unfitness for public power or trust."162

To those who wou ld complain that it "is a grievous hardship on those who undertake the administration of a nation; that they are to run the hazard of being thus publicly accused of corruption, embezzlement, and other political crimes, without having it in their power to punish their slanderers," Burgh would answer, "It is no hardship at all, but the unavoidable inconvenience attendant upon a high station, which he who dislikes must avoid, and keep himself private. . . . If a statesman is liable to be falsely accused, let him comfort himself by recollecting that he is well paid." And if an official is, in fact, falsely accused, Burgh noted, "he has only to clear his character, and he appears in a fairer light than before. He must not insist on punishing his accuser: fo r the public security requires, that there be no danger in accusing those who undertake the administration of national affairs." Moreover, he said, "The punishment of political satyrists gains credit to their writings, nor do unjust governments reap any fruits from such severities, but insults to themselves, and honour to those whom they prosecute."163

After an historical account of abuses of general warrants, filings by informations, and suspension of habeas corpus, Burgh concluded that "it seems man ifest, that nothing can be imagined more inconsistent with freedom (to say nothing of the right which every free subject has to speak and write of public affairs), than putting a discretionary power into the hands of a set of low-bred, unprincipled, and b eggarly officers or messengers, who may be expected to abuse their power . . . ." Even if the people could be protected from and indemnified for such procedural abuses, a more fundamental point remained. Again exceeding the parameters of political speec h advocated in Cato's Letters No. 32--that of protection only for "true" charges against the government--Burgh declared, "No man ought to be hindered saying or writing what he pleases on the conduct of those who undertake the management of national affair s, in which all are concerned, and therefore have a right to inquire, and to publish their suspicions concerning them. For if you punish the slanderer, you deter the fair inquirer."164

Burgh's philosophy of freedo m of speech and press, both as a term of art and as a political principle, differs significantly from that advocated by Blackstone. For the revolutionary generation, it was an increasingly familiar and easily embraced argument which supported their polit ical world view; therefore, it would seem to have offered Cannon and his contemporaries a ready template for crafting a new constitution, and the concept of freedom of speech advanced therein seems even more likely to have supported and informed their int entions when drafting a declaration of rights. Unlike Blackstone, an officer of the King's government who was attempting to state and conserve things as they were, these were revolutionaries intent upon making the world anew, and the words of Cato and Bu rgh provided the grammar for their vision--not of what might have been in the past but of what a new republican government should and could be in the future.

The meaning of freedom of speech in a republic continues to be of vital concern. Issues of bo th prior restraint and subsequent punishment still reach the United States Supreme Court, and original intent is again gaining acceptance as an important element in the jurisprudence of the younger members of the Court. For scholars and judges seeking to understand the history of the free speech clause and to fashion an interpretive strategy based upon the intent of the framers, it is especially important to be aware of the republican theory which influenced the founders. The premises of popular soverei gnty and the implicit theory of unfettered political discussion necessary in a republic, articulated so well by such writers as Trenchard, Gordon, and Burgh, provide the appropriate intellectual guideposts for seeking the "enlightenment from the structure of the document and the government it created," as suggested by Judge Bork165 The latter day commonwealthmen and seventeenth century British radicals provided the political theory, and the American radicals who fomented a revolution and forged republica n constitutions provided the praxis.

Freedom of speech and press, said Burgh, meant far more than absence of licensing and prior restraint; it meant complete liberty to consider and censure public officers and public policies without fear of punishment . While the people might be said to be responsible for the abuse of that liberty, they were responsible only to themselves. Government officials must consider themselves responsible to the people, wrote Burgh, "while the people are answerable only to Go d; themselves being the losers, if they pursue a false scheme in politics."166

There were, of course, numerous political theories available to the founding generation, and, undoubtedly, all had at least a few adherents. While I have not attempted to a nd cannot claim to have demonstrated a complete consensus among the framers as to the exact meaning of freedom of speech, I am confident that James Cannon, author of the world's first constitutional provision recognizing the free speech rights of citizens , borrowed the language and meaning from the text of Political Disquisitions and grounded that provision more in Burgh's expansive view of republicanism than on Blackstone's court-crabbed view of the common law and the noxious notion that ultimate soverei gnty was lodged in the government. Both the political etymology of the free speech clause of the First Amendment and the republican ideology evident in the structure of the government created by the Constitution refute Levy's disingenuous claim that the framers intended merely to codify Blackstone and preserve the concept of seditious libel. Nonetheless, to paraphrase Chafee, this Levy theory dies hard, but it ought to be knocked on the head once for all. Scholars have delivered the philosophical and h istorical prognosis; it is time for the Court to pull the plug.

*Mr. Smith (Ph.D., Northwestern, 1983) is Professor of Communication at the University of Arkansas, Fayetteville. Research for this essay was conducted during his appointment as Andrew W. Mellon Fellow, Department of History and Philadelphia Center for Early American Studies, University of Pennsylvania, and funded in part by an Off Campus Duty Assignment by the J. William Fulbright College of Arts and Sciences, University of Arkansas, during the 1989-90 academic year. Praise be to Wayne K. Bodle and Th omas S. Frentz for their careful reading and helpful suggestions on an earlier draft of this essay.

1Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990): 165.

2Clinton Rossiter, 1787: The Gran d Convention (New York: Macmillan, 1966): 424. See also, Leonard W. Levy, Original Intent and the Framers' Constitution (New York: Macmillan, 1988): xii-xiii.

3It is beyond the scope of this paper to argue the appropriateness of original intent as a means of constitutional interpretation. For the dimensions of that controversy, see Levy, Original Intent and the Framers' Constitution: 322-398; Daniel A. Farber and Suzanna Sherry, A History of the American Constitution (Saint Paul: West, 1990): 372- 398; and Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge: Harvard University Press, 1988) 21-60. Obviously, I find it among the valid means of interpretation.

4Diana Peck, "Mass Media and the First Amendment," Community Television Review, 8, No. 2 (1985): 6.

5Stephen Klaidman, "Cigarette Ads and Your Civil Liberties," The New York Times, 2 August 1986: 23.

6Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (Ca mbridge: Harvard University Press, 1960); Leonard W. Levy, Emergence of a Free Press (New York: Oxford University Press, 1985).

7Levy, Emergence of a Free Press, 281; xii. For an intriguing argument that Blackstone, having relied on Coke's erroneous transportation of Star Chamber practices into common law, was wrong about seditious libel, see Irving Brant, The Bill of Rights: Its Origin and Meaning (1965; New York: New American Library, 1967): 118-124.

8Levy, Emergence of a Free Press, vii; Da vid A. Anderson, "The Origins of the Press Clause," UCLA Law Review, 30 (1983): 493, 534.

9Zechariah Chafee, Jr., Free Speech in the United States (1941; New York: Atheneum, 1969): 9. Thorough and thoughtful arguments against Levy's thesis have been provided in Richard A. Parker, "Rhetorically Reconstructing the History of the First Amendment," Speech Communication Association, Chicago, November 1990; Jeffrey A. Smith, "The Original, Absolute Press Clause," Speech Communication Association, Chicago, November 1990; Jeffrey A. Smith, Printers and Press Freedoms: The Ideology of Early American Journalism (New York: Oxford University Press, 1988); Richard A. Parker, "Revising Revisionist History: Consensus Theories of the Framers' Intent," Free Speec h Yearbook, 26 (1987): 1-10; David Rabban, "The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History," Stanford Law Review, 37 (1985): 795-856; William T. Mayton, "Seditious Libel and the Lost Guarantee of Freedom of Exp ression," Columbia Law Review, 84 (1984): 91-142; David A. Anderson, "The Origins of the Press Clause," UCLA Law Review, 30 (1983): 455-541; and J. Louis Campbell, "From Small Acorns Mighty Oaks Grow: The Legislatures and Free Speech in Colonial Connect icut and Rhode Island," Free Speech Yearbook, 16 (1977): 3-24.

10James Burgh, Political Disquisitions: Or, An Enquiry into Public Errors, Defects and Abuses 3 Vols. (London: E. and C. Dilly, 1774-1775).

11Levy, Emergence of a Free Press, 12-13; Sir William Blackstone, Commentaries on the Laws of England, 4: 151-152.

12Thomas M. Cooley, Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States, ed. V. H. Lane (Boston: Little, Brown, 1903, 7th ed.): 603. While Levy cites this edition of Cooley's Constitutional Limitations in his bibliography (Emergence of a Free Press, 363), he fails to address this argument in the text. Parker's close examination of Levy's internal inconsistencies and logical fallacies raise s other doubts about Levy's motives and his reputation as an objective scholar. See, Richard A. Parker, "Rhetorically Reconstructing the History of the First Amendment," Speech Communication Association, Chicago, November 1990.

13Roscoe Pound, The Dev elopment of Constitutional Guarantees of Liberty (New Haven: Yale University Press, 1957) 65-67.

14As a result, in Great Britain, this "absence of any constitutional or legislative statement of a freedom of speech means that the liberty is largely res idual. In other words the freedom exists where statute or common law rules do not restrain it." Eric Barendt, Freedom of Speech (Oxford: Clarendon, 1987) 29. Such unlimited statutory discretion for punishment--legislative determination of what constit utes "bad sentiments" and speech that is "improper, mischievous, or illegal"--Levy argues is what was intended by the framers of the First Amendment.

15See, John Phillip Reed, Constitutional History of the American Revolution: The Authority of Rights (Madison: University of Wisconsin Press, 1986) 5-7. I will argue below that the English Dissenters and the American radicals also meant natural rights which are necessarily reserved in republican governments.

16Barendt, 23, note 73.

171 W. & M. c. 2 (1689); Blackstone 1: 143. For the British origins of the right of petition and subsequent development in the United States, see Stephen A. Smith, "The Right to Petition: An Ancillary Contribution to Free Speech Theory," Southern States Communicati on Association, Memphis, Tennessee, April 1988.

18See, Richard B. Morris, "Legalism versus Revolutionary Doctrine in New England," New England Quarterly, 4 (1931): 195-215.

19Adam Smith, Lectures on Jurisprudence, ed. by R. L. Meek, D. D. Raphael, a nd P. G. Stein (Oxford: Clarendon, 1978): 124-125, 303.

20"Junius," "To Sir William Blackstone, Solicitor General to her Majesty," 29 July 1769, Woodfall's Junius: The Letters of Junius (New York: Lovell, 1880) 116-119.

21"Fragments on Government " cited in George H. Sabine, A History of Political Theory (New York: Holt, Rinehart and Winston, 1961) 676.

22"Of the Study of Law in the United States," The Works of James Wilson, ed. Robert Green McCloskey (Cambridge, MA: Belknap Press, 1967) 1: 7 9-80. Wilson also notes the characterization of Blackstone as antirepublican by one of his colleagues. Wilson's educational and legal background is discussed in Geoffrey Seed, James Wilson (Millwood, NY: KTO Press, 1978) 4-5.

23Thomas Jefferson to Ja mes Madison, 17 February 1826, Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984) 1513-1514. For Jefferson's general refutation of Blackstone's authority, see Julius S. Waterman, "Thomas Jefferson and Blackstone's Co mmentaries," in Essays in the History of Early American Law, ed. David H. Flaherty (Chapel Hill: University of North Carolina Press, 1969) 451-488.

24For the most extreme stacking of sources, see Levy, Original Intent and the Framers' Constitution, 195 -220.

25Richard A. Parker, "Revising Revisionist Historians: Consensus Theories of the Framers' Intent," Free Speech Yearbook, 26 (1987): 1-10. Having served as a member of the Arkansas General Assembly, 1971-1975, and as Vice President of the Arkans as Constitutional Convention, 1979-1980, I also find such consensus hypotheses amusing at best.

26Robert F. Williams, "The State Constitutions of the Founding Decade: Pennsylvania's Radical 1776 Constitution and Its Influences on American Constitution alism," Temple Law Review, 62 (1989): 545.

27John Murrin, "Fundamental Values, the Founding Fathers, and the Constitution," in "To Form a More Perfect Union": The Critical Ideas of the Constitution, eds. Herman Belz, Ronald Hoffman, and Peter J. Alber ts (Charlottesville: University Press of Virginia, in press).

28Richard B. Morris, "Foreword," in Law & Authority in Colonial America, ed. George Athan Billias (New York: Dover, 1965) viii-ix.

29Levy, Emergence of a Free Press, 281. Levy's argumen t also seems to minimize the ideological clash between inalienable and reserved rights of individuals and delegated and enumerated powers of the government. For my disagreement here, see "Of Sovereign Assumptions, Delegated Powers, and an Absolutist View of Freedom of Expression," Free Speech Yearbook, 27 (1989): 106-114.

30 The most popular American edition of Blackstone, in fact, appended vigorous refutations of his views on religious liberty by Priestly and Furneaux. Sir William Blackstone, Comm entaries on the Laws of England, 4 Vols. (Philadelphia: Robert Bell, 1771-1772). See Bell's advertisement for Volume 3, Pennsylvania Packet, 20 July 1772: 3.

31Robert A. Rutland, ed., The Papers of George Mason, 3 Vols. (Chapel Hill: University of N orth Carolina Press, 1970) 1: 278-279, 281.

32Adrienne Koch, ed., Notes on the Debates in the Federal Convention of 1787 Reported by James Madison (Athens: Ohio University Press, 1966) 630.

33Thomas Jefferson to James Madison, 31 July 1788, The Pap ers of James Madison, ed. Robert T. Hutchinson et al (Chicago and Charlottesville: University of Chicago Press and University Press of Virginia, 1962- ) 11: 212-213.

34James Madison to Thomas Jefferson, 17 October 1788, Madison Papers, 11: 297-299. For Jefferson's rebuttal, see Thomas Jefferson to James Madison, 15 March 1789, Madison Papers, 12: 13-15.

35See George Nicholas to James Madison, 2 January 1789, and James Madison to George Washington, 14 January 1789, The Documentary History of the First Federal Elections, 1788-1790, ed. by Gordon DenBoer (Madison: University of Wisconsin Press, 1984) 2: 331-332; 394.

36James Madison to George Eve, 2 January 1789, Madison Papers, 11: 404-405. Madison repeated his support for amendments, each t ime specifically mentioning the same four provisions, in a letter to Thomas Mann Randolph, Sr., 13 January 1789, and in a circular letter printed in the Virginia Herald, 29 January 1789, The Documentary History of the First Federal Elections, 2: 339-340.

37John Leland to James Madison, 15 February 1789, and Virginia Herald, 12 February 1789, The Documentary History of the First Federal Elections, 2: 346-347.

38George Mason to John Mason, 31 July 1789, The Documentary History of the First Federal E lections, 2: 348.

39James Madison to Edmund Pendleton, 8 April 1789, Madison Papers, 12: 51.

40George Washington, "Address of the President to Congress," 30 April 1789, Madison Papers, 12: 120-121, 123.

41Madison Papers, 12: 133.

42Madison Papers, 12: 125, 196.

43Madison Papers, 12: 201.

44Madison Papers, 12: 202, 344.

45Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791 (New York: Collier, 1962): 212, 215. It was not until 1925 that the Supreme Court, applying the First Amendment to the states through the Fourteenth Amendment, held that liberty of speech and press might be afforded relief from local restrictions under the United States Constitution in Gitlow v. New York, 268 U.S. 666 (1925). Ironically, noted Walter Berns with regard to freedom of speech and press, "The fact is, the Bill of Rights has served (and continues to serve) mainly to secure rights from abridgement by the states and not the federal government, the very opposite of the role . . . the An ti-Federalists expected them to play." Walter Berns, Taking the Constitution Seriously (New York: Simon & Shuster, 1987) 127.

46Rutland, 212-216.

47Senate Journal, 3 September 1789; The Roots of the Bill of Rights, ed. by Bernard Schwartz (New York : Chelsea House, 1980) 5: 1148.

48Rutland, 215.

49"Amendments to the Constitution," 8 June 1789, Madison Papers, 12: 203, 194. The reference to speech and conscience as natural rights appears in Madison's surviving speaking notes but not in the t ext of his remarks as reported in the press.

50Madison Papers, 12: 204.

51Madison Papers, 12: 201-206.

52For an elaboration of this argument, see Stephen A. Smith, "Of Sovereign Assumptions, Delegated Powers, and an Absolutist View of Freedom o f Expression," Free Speech Yearbook, 27 (1989): 106-111. Madison's views here seem consistent with the postions of James Wilson and Alexander Hamilton who contended that a federal Bill of Rights to protect freedom of the press was unnecessary, since the federal government was one of only delegated powers and was without any power whatsoever to infringe upon liberty of the press. "James Wilson's Speech in the State House Yard," 6 October 1787, The Documentary History of the Ratification of the Constituti on, ed. by Merrill Jensen (Madison: State Historical Society of Wisconsin, 1976)2: 167-168; [Alexander Hamilton], "No. 84," The Federalist Papers, intro. Clinton Rossiter (New York: New American Library, 1961) 512-515.

53Fisher Ames to Thomas Dwight, 11 June 1789, Works of Fisher Ames, ed. W. B. Allen (1854; Indianapolis: Liberty Classics, 1983) 1: 642.

54Documentary History of the Ratification of the Constitution, 2: 618-639. Levy, Emergence of a free Press, 238, incorrectly attributes authorsh ip to George Bryan.

55[Samuel Bryan], "Centinel I," Independent Gazette, 5 October 1787; Documentary History of the Ratification of the Constitution, 2: 158, 166. Emphasis in the original. The reference to great writers appears to be based upon Jean Louis de Lolme's The Constitution of England, or an Account of the English Government (London, 1775). "Junius" cites the same passage in the Preface of Woodfall's Junius: The Letters of Junius, xxiii-xxiv. The appearance of the Centinel essay was answe red by James Wilson's "Speech in the State House Yard," 6 October 1787, denying that the federal government had any power to infringe liberty of the press.

56Documentary History of the Ratification of the Constitution, 2: 439, 441.

57Documentary His tory of the Ratification of the Constitution, 2: 597.

58"The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents," Documentary History of the Ratification of the Constitution, 2: 623, 630- 631.

59Roots of the Bill of Rights, 4: 482

60Roots of the Bill of Rights, 2: 235.

61Roots of the Bill of Rights, 4: 968; 2: 287.

62Anderson, 491-492.

63David L. Jacobson, ed., The English Libertarian Heritage (Indianapolis: Bobbs-Merrill, 1965): 40. Gordon's No. 32 and John Trenchard's No. 100 and No. 101 also elaborated their conception of free speech and press.

64Levy, Emergence of a Free Press, 109-118; Anderson, 524-527.

65Clinton Rossiter, Seed Time of the Republic: The Origin of the American Tradition of Political Liberty (New York: Harcourt, Brace, 1953) 141.

66Leonard W. Levy and Alfred Young, "Foreword," in The English Libertarian Heritage: From the Writings of John Trenchard and Thomas Gordon in The Independent Whig and Cato's Letters, ed. David L. Jacobson (Indianapolis: Bobbs-Merrill, 1965) viii; Levy, Emergence of a Free Press, 114.

67Robert N. C. Nix and Mary M. Schweitzer, "Pennsylvania's Contributions to the Writing and the Ratification of the Constitution, " Pennsylvania Magazine of History and Biography, 112 (1988): 3-24. Levy acknowledges the extent to which the Pennsylvania Declaration of Rights surpassed that of Virginia. Levy, Original Intent and the Framers' Constitution, 144, 185. Robert F. Willia ms, "The Influence of Pennsylvania's 1776 Constitution on American Constitutionalism During the Founding Decade," Pennsylvania Magazine of History and Biography, 112 (1988): 48, notes that the 1776 Constitution "has almost been forgotten. Its important place in the evolution of constitutional ideas in this country, however, should not continue to be overlooked." For an expanded version of this argument, see Robert F. Williams, "The State Constitutions of the Founding Decade: Pennsylvania's Radical 1776 Constitution and Its Influences on American Constitutionalism," Temple Law Review, 62 (1989): 541-585.

68Pennsylvania Evening Post, 6 June 1776: 1-2; Pennsylvania Ledger, 8 June 1776: 2; Samuel Adams to Richard Henry Lee, 15 July 1776, and Samuel Ada ms to James Warren, 16 July 1776, in The Writings of Samuel Adams, ed. Harry Alonzo Cushing (Boston: 1904-1908) 3: 298-299.

69"Laws Agreed Upon in England" (1682), Roots of the Bill of Rights, 1: 143.

70Roots of the Bill of Rights, 2: 262-263.

71While it is not necessary to address each of these assertions in this essay, each claim can be generally refuted. Neither Bryan, Adams, Paine, Reed, nor Young were delegates. Franklin and Ross were soon elected to represent the state in Congress and p articipated only minimally in the work of the Convention. Reed was in the army during the time of the convention and later refused to serve as Chief Justice because of his objections to the Constitution. See, Joseph Reed to the Executive Council of Penns ylvania, 22 July 1777, Life and Correspondence of Joseph Reed, ed. William B. Reed (Philadelphia: Lindsay and Blackstone, 1847) 1: 301-303. Paine said he was at camp with the Army during the sitting of the Pennsylvania Convention; furthermore, he said, "I held no correspondence with either party, for, or against, the present constitution. I had no hand in forming any part of it, nor knew any thing of its contents until I saw it published." Common Sense, "To the People," Pennsylvania Packet, 18 March 1 777.

72David Hawke, In the Midst of a Revolution (Philadelphia: University of Pennsylvania Press, 1961): 170-200; Richard Alan Reyerson, The Revolution is Now Begun: The Radical Committees of Philadelphia , 1765-1776 (Philadelphia: University of P ennsylvania Press, 1978): 112-114, 241; Eric Foner, Tom Paine and Revolutionary America (New York: Oxford University Press, 1976): 115, 133; and Steven Rosswurm, Arms, Country, and Class: The Philadelphia Militia and the "Lower Sort" during the American Revolution (New Brunswick, NJ: Rutgers University Press, 1987): 107.

73Stephen E. Lucas, Portents of Rebellion: Rhetoric and Revolution in Philadelphia, 1765-1776 (Philadelphia: Temple University Press, 1976) 160-161; Hawke, 170, 186; Reyerson, 13 4, note 53, 112-114, 241; Foner 115, 131, 133. For other secondary attributions of Cannon's role in authorship of the 1776 Constitution and Declaration of Rights, see J. Thomas Scharf and Thomas Westcott, History of Philadelphia, 1609-1884, 3 Vols. (Phil adelphia: L. H. Everts, 1884) 1: 322-323; Burton Alva Konkle, George Bryan and the Constitution of Pennsylvania, 1731-1791 (Philadelphia: W. J. Campbell, 1922) 121, 124; Allan Nevins, The American States During and After the Revolution, 1775-1789 (New Yo rk: Macmillan, 1924): 149-152; Elisha P. Douglass, Rebels and Democrats: The Struggle for Equal Political Rights and Majority Rule During the American Revolution (1955; New York: Quadrangle, 1965) 263-266; and Carroll C. Arnold, "Early Constitutional Rhet oric in Pennsylvania," in American Rhetoric: Context and Criticism, ed. Thomas W. Benson (Carbondale: Southern Illinois University Press, 1989) 134.

74Charles Francis Adams, ed., The Works of John Adams, (Boston: Little, Brown, 1851), 9: 623; Alexan der Graydon, Memoirs of a Life, Chiefly Passed in Philadelphia, Within the Last Sixty Years (Edinburgh: Blackwood, 1822) 302-305. Graydon appears to be the only contemporary to consider George Bryan as a primary contributor to the ideas behind the consti tution, and based upon his comments, Konkle advanced the unconvincing argument that Bryan guided the delegates drafting the document. Bryan's obituaries in 1790 make no mention of his role in shaping the 1776 Constitution.

75Thomas Hartley to Anthony Wayne, 21 November 1776, Anthony Wayne Papers, Historical Society of Pennsylvania, Philadelphia.

76Benjamin Rush to Charles Nisbet, 27 August 1784, Letters of Benjamin Rush, ed. Lyman H. Butterfield, 2 Vols. (Princeton: Princeton University Press, 195 1) 1: 336. Rush also suggests that George Bryan and Joseph Reed opposed the constitution when it was first adopted. Benjamin Rush to John Adams, 24 February 1790, Letters of Benjamin Rush, 1: 532.

77George W. Corner, ed., The Autobiography of Benjami n Rush (Princeton: Princeton University Press, 1948) 147-148. The brewer represented Matlack and the schoolmaster Cannon.

78David Ramsay to Benjamin Rush, 3 July 1779, and David Ramsay to Benjamin Rush, 8 April 1780, Rush Manuscripts, Historical Soci ety of Pennsylvania, Philadelphia. Cannon and Robert Davidson had moved with their families to Charleston to teach in a local school after the British occupied Philadelphia, returning just before the fall of Charleston and carrying sealed papers from Gen eral Benjamin Lincoln to the Confederation Congress.

79Christopher Marshall Diaries, 21 October 1776; "Consideration," Pennsylvania Gazette, 30 October 1776: 1. For evidence of the attacks on Cannon's character by opponents of the constitution, see Wi lliam Hopper to Joseph Hewes, 5 November 1776, and William Hopper to Joseph Hewes and Samuel Johnston, 6 November 1776, Letters of Delegates to Congress, 1774-1789, ed. Paul H. Smith (Washington, DC: Library of Congress, 1979) 5: 440, 443.

80James Ca nnon to Robert Whitehill, 9 April 1777, Robert Whitehill Papers, Cumberland County Historical Society, Carlisle, Pennsylvania. Cannon's relationship with Whitehill during the 1776 Convention is especially important in view of Whitehill's having demanded an amendment protecting freedom of speech and press during the Pennsylvania Ratifying Convention of 1787. For an extended discussion of their personal and political relationship see Stephen A. Smith, "Religious Test Oaths and Republican Revolutionaries: The Ordeal of the Pennsylvania Constitution of 1776," Transformation of Philadelphia Project, Philadelphia, Pennsylvania, 9 May 1990.

81Reyerson, 112; Christopher Marshall Diaries, 17 March 1775, Historical Society of Pennsylvania; Lucas, 300, note 2 1; Pennsylvania Evening Post, 18 March 1775: 3. See also, Minute Book of the United Company of Philadelphia for Promoting American Manufactures, Samuel Weatherill Papers, Van Pelt Library Special Collections, University of Pennsylvania, Philadelphia. Th e list of members, a copy of Benjamin Rush's presidential address, and the manuscript minutes are in Cannon's handwriting.

82Pennsylvania Evening Post, 28 September 1775: 3; Pennsylvania Gazette, 7 February 1776.

83See Cassandra, "On Sending Commiss ioners," Pennsylvania Evening Post, 2 March 1776: 1-2; "Cassandra to Cato," Pennsylvania Gazette, 20 March 1776: 1, and Pennsylvania Packet, 25 March 1776: 1; "Cassandra to Cato II," Pennsylvania Packet, 8 April 1776: 1-2, and Pennsylvania Ledger, 13 Apri l 1776: 2, and 20 April 1776: 4; "Cassandra to Cato III," Pennsylvania Ledger, 27 April 1776: 2.

84Rosswurm 107.

85Minutes of the Proceedings of the Convention of the State of Pennsylvania, held at Philadelphia the 15th day of July, 1776, and contin ued by adjournments to the 28th September following, The version cited is in The Proceedings Relative to Calling the Convention of 1776 . . . . (Harrisburg, Pa.: John S. Wiestling, 1825): 53, 66. The preamble committee included Rittenhouse and John Jac obs; the minutes committee included Rittenhouse, Matlack, and John Bull.

86Minutes of the Proceedings of the Convention of the State of Pennsylvania, held at Philadelphia the 15th day of July, 1776, 45-51. The slight stylistic changes to Article XII are evident from the emendations in Franklin's hand on a broadside copy of the draft printed for consideration of the members. An Essay of a Declaration of Rights, Brought in by the Committee appointed for that Purpose, and now under the Consideration of the Convention of the State of Pennsylvania, Library Company of Philadelphia.

87John Morris, Jr. to John Dickinson, 30 July 1776, R. R. Logan Collection, Historical Society of Pennsylvania, Philadelphia. Dickinson noted in the margins of his copy of the proposed Declaration of Rights "that the Freedom of the Press is one of the great bulwarks of liberty." Milton E. Fowler, John Dickinson: Conservative Revolutionary (Charlottesville: University Press of Virginia, 1983) 176. This language was probably taken from the Virginia Declaration and could have been made when Dickinson replied to Samuel Chase's request for assistance in preparing a Bill of Rights for Maryland's Constitution. See, Samuel Chase to John Dickinson, 29 September 1776, and Samuel Ch ase to John Dickinson, 19 October 1776, R. R. Logan Collection, Historical Society of Pennsylvania.

88John Morris, Jr. to John Dickinson, 8 August 1776, R. R. Logan Collection, Historical Society of Pennsylvania, Philadelphia.

89John Morris, Jr., t o John Dickinson, 11 August 1776, and John Morris, Jr., to John Dickinson, 16 August 1776, R. R. Logan Collection, Historical Society of Pennsylvania, Philadelphia.

90Pennsylvania Evening Post, 20 August 1776: 3.

91"D", "For the Pennsylvania Evening Post," Pennsylvania Evening Post, 7 September 1776: 1.

92Levy, Emergence of a Free Press, 185. Levy incorrectly cites the provision as Section XXV.

93The Proposed Plan or Frame of Government for the Common-wealth or State of Pennsylvania [Printed for Consideration]: 9. Library Company of Philadelphia.

94The Proposed Plan or Frame of Government for the Common-wealth or State of Pennsylvania [Printed for Consideration]: 9. Emphasis added. The italicized language regarding strictures on the cond uct of public officers comports with the position maintained in Burgh's Political Disquisitions, 3: 250.

95The only scholarly article to address this change did not discover any public comment challenging the implicit political philosophy in the provis ion and seems to suggest that the change was merely stylistic rather than political. Specifically, the author discounted the idea that the deletion was intended to suggest protection for communication with the enemy during actual war. See John N. Shaffe r, "Public Consideration of the 1776 Pennsylvania Constitution," Pennsylvania Magazine of History and Biography, 98 (1974): 426-427.

96"F", Pennsylvania Evening Post, 28 September 1776: 1.

97Pennsylvania Packet, 12 November 1776; Robert Levere Brun house, The Counter-Revolution in Pennsylvania, 1776-1790 (Philadelphia: University of Pennsylvania Press, 1942) 20.

98Hampden, "To the Citizens of Philadelphia," Pennsylvania Evening Post, 13 March 1777: 1. Cannon responded by asking, "Wherein is li berty of the press restrained?" "To Hampden," Pennsylvania Evening Post, 15 March 1777: 3. See Brunhouse 27, note 41.

99The Works of John Adams, 4: 215-216, 226.

100Levy, Emergence of a Free Press, 184.

101Morton White, The Philosophy of the Am erican Revolution (New York: Oxford University Press, 1978): 3-4.

102Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988) 97. See also, George Anastaplo, The Constitution of 1787: A Commenta ry (Baltimore: Johns Hopkins University Press, 1989) 149-166; and Albert P. Blaustein and Jay A. Sigler, Constitutions that Made History (New York: Paragon House, 1988) xiii, 9-69.

103Gordon S. Wood, The Creation of the American Republic, 1776-1787 (N ew York: W. W. Norton, 1969) 85.

104Thomas Paine, Common Sense and Other Political Writings, ed. Nelson F. Adkins (Indianapolis: Bobbs-Merrill, 1953) 51. See also Williams, "The State Constitutions of the Founding Decade," 554-558, 562-563. Walter Be rns credits Paine with articulating the relationship between popular sovereignty and written constitutions to fix rights and, conversely, the incompatibility of parliamentary sovereignty, a key tenet of Blackstone's treatise. Berns, Taking the Constituti on Seriously, 77.

105"Cassandra to Cato, Number III," Pennsylvania Ledger, 27 April 1776: 2.

106"To the several Battalions of Military Associators in the Province of Pennsylvania," Robert Whitehill Papers, Cumberland County Historical Society, Carl isle, Pennsylvania. The notation on the back of the broadside, in Whitehill's handwriting, indicates that this is "Mr. Cannons & others Circular letter."

107J. Paul Selsam, The Pennsylvania Constitution of 1776: A Study in Revolutionary Democracy (Ph iladelphia: University of Pennsylvania Press, 1936): 148.

108Francis Alison to Robert _____, 20 August 1776, Pennsylvania Magazine of History and Biography, 28 (1904): 379.

109Charles Thompson to John Dickinson, 16 August 1776, Pennsylvania Magaz ine of History and Biography, 35 (1911): 500.

110Thomas Smith to Arthur St. Clair, 3 August 1776, and Thomas Smith to Arthur St. Clair, 22 August 1776, cited in Hawke, 190-191; Selsam 149.

111"Orator Puff," Pennsylvania Evening Post, 10 October 1776 , 19 October 1776.

112James Burgh, Political Disquisitions, 3 Vols. (Philadelphia: Robert Bell and William Woodhouse, 1775) 1: xvii-xviii.

113Woodfall's Junius: The Letters of Junius, xii.

114Selsam, 176.

115Christopher Marshall Diaries, 21- 22 April 1775, Historical Society of Pennsylvania, Philadelphia. Rossiter, Seedtime of the Republic, also notes the significance of The Crisis in informing the popular political theory of liberty during the era.

116The Crisis. Number XXVI (New York: Anderson, 1775), Evans 13992, p. 220.

117Minute Book, Library Company of Philadelphia, 2: 42, 44; Library Company of Philadelphia, Record Book A:102,197; The Charter, Laws, and Catalogue of Books of the Library Company of Philadelphia (Philadelphia: Joseph Crukshank, 1770); Robert Bell advertisement for Third Volume of Blackstone's Commentaries on the Laws of England, Pennsylvania Packet, 20 July 1772: 3. The College of Philadelphia was a subscriber for this edition, and Cannon would have had access in the College library.

118Caspipina, "To the Right Honourable Lord Viscount P_____, at Oxford," Pennsylvania Packet, 16 March 1772: 1.

119Typescript on flyleaf of Library Company of Philadelphia copy of the 1770 catalog, The Charter, Laws, and Ca talogue of Books of the Library Company of Philadelphia ; Lucas, 8-9. See also, E. V. Lamberton, "Colonial Libraries of Pennsylvania," Pennsylvania Magazine of History and Biography, 42 (1918): 192-234.

120Edward Dilly to John Dickinson, 7 March 1774 , John Dickinson Papers, Historical Society of Pennsylvania, Philadelphia. Volume Three, containing Burgh's arguments on freedom of speech and press, was sent to Dickinson in proof sheets before binding but complete except for the title page in early 1775 . Edward Dilly to John Dickinson, 28 January 1775, John Dickinson Papers, Historical Society of Pennsylvania, Philadelphia.

121"Speech of John Wilkes in Favour of Parliamentary Reform, 1776," The Eighteenth Century Constitution: Documents and Comment ary, comp. E. N. Williams (Cambridge: Cambridge University Press, 1960) 216. John Adams employed the same rhetorical shorthand in "Novanglus," 30 January 1775, Tracts of the American Revolution, ed. Merrill Jensen (Indianapolis: Bobbs-Merrill, 1976) 30 7.

122Pennsylvania Evening Post, 3 June 1775: 4; 5 October 1775: 1.

123"Of Exclusion by Rotation," Pennsylvania Evening Post, 23 November 1775: 1.

124Burgh, Political Disquisitions, 1: xvi-xvii. These sentiments and the identical language were attributed to a "young lady" and printed as a letter to the editor in a local newspaper. "A Reasonable Whiggess," Pennsylvania Evening Post, 2 January 1776: 3.

125Pennsylvania Evening Post, 14 November 1775: 1.

126The inventory of Cannon's propert y in 1782 included 195 books valued at £28, but only Buchanan's Syntax, used in his courses at the University, is mentioned by title. "An Inventory of Goods and Chattels belonging to the Estate of Mr. James Cannon, deceased, taken by Mess. James Davidson and William Oliphant, February 23, 1782." Will Book S, File 73, Page 75 (1782), Registrar's Office, City Hall, Philadelphia.

127Staughton Lynd, Intellectual Origins of American Radicalism (New York: Vintage, 1969) 26-27.

128The list of encouragers for the American edition is at the front of volume three.

129Carla H. Hay, James Burgh, Spokesman for Reform in Hanoverian England (Washington, DC: University Press of America, 1979): 42-43. Hay's study is the best available assessment of Burgh's entire career and literary contributions. The best analysis of Burgh's political theory is Isaac Kramnick's chapter, "James Burgh and 'Opposition' Ideology in England and America," in Kramnick, Republicanism and Bourgeois Radicalism (Ithaca, NY: Cornell University Press, 1990) 200-259.

130Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967): 41

131Bernard Bailyn, Faces of Revolution: Personalities and Themes in the Struggle for American I ndependence (New York: Knopf, 1990): 190. Emphasis added.

132Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W. W. Norton, 1988): 232. Morgan suggested that Volume III (which contained Burg h's explicit statement on Freedom of Speech and Press) was especially popular. Oscar and Mary Handlin, "James Burgh and American Revolutionary Theory," Massachusetts Historical Society Proceedings, 73 (1961): 38.

133Forrest McDonald, Novus Ordo Seclo rum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985) 78.

134Kramnick, 235, 237.

135Caroline Robbins, The Eighteenth-Century Commonwealthman (Cambridge: Harvard University Press, 1961): 365.

136Gordon S . Wood, The Creation of the American Republic, 1776-1787 (1969; New York: W. W. Norton, 1972): 16, 127. For additional assessments of Burgh's importance see, Lance Banning, The Jeffersonian Persuasion: Evolution of a Party Ideology (Ithaca, NY: Cornel l University Press, 1978) 61; J. G. A. Pocock, Virtue, Commerce, and History: Essays on Political Thought and History (New York: Cambridge University Press, 1985) 257, 260-261; Carl B. Cone, The English Jacobins: Reformers in Late 18th Century England ( New York: Scribner, 1968) 45-50; Clinton Rossiter, Seed Time of the Republic: The Origin of the American Tradition of Political Liberty (New York: Harcourt, Brace, 1953): 141; Wilson Ober Clough, Intellectual Origins of American National Thought (1955; New York: Corinth, 1961) 282; and Page Smith, A New Age Now Begins: A People's History of the American Revolution (New York: McGraw-Hill, 1976) 1: 144, 255-256, 676.

137Henry F. May, The Enlightenment in America (New York: Oxford University Press, 1 976) 157. This point, with direct application to the Pennsylvania Constitution of 1776, is also made by Kramnick 244, and J. R. Pole, Political Representation in England & the Origins of the American Republic (Berkeley: University of California Press, 19 71) 269-270, 274, 276, 429, 465-466. May's view, which I find convincing, is not, however, uncontroverted. In addition to Levy's argument regarding a static vision of liberty of speech and press, see generally, John Phillip Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988) 8-17, 98-122.

138Paul K. Conkin, Self-Evident Truths (Bloomington: Indiana University Press, 1974) 24.

139Zechariah Chafee, Jr., Free Speech in the United States (1 941; New York: Atheneum, 1969): 9. The contemporary assessment is from Willes, J., in Dean of St. Asaph's Case, 4 Doug. 73, 172 (1784).

140Burgh's attack on Parliament's unwarranted taxation of the American colonies is in Political Disquisitions 2: 274-340. The quote is from Burgh, Political Disquisitions 3: 275; additional criticism of Blackstone on liberties is found at 1: 371, 2: 39, 345, 3: 283-286, 305.

141Levy, Emergence of a Free Press, 154.

142Levy does give Burgh's Political Disquis itions a single "see also" footnote in support of a proposition which Burgh would find too narrow. Levy, Emergence of a Free Press, 160, note 59.

143This view of Burgh's direct influence is supported by Willi Paul Adams, The First American Constitutio ns: Republican Ideology and the Making of State Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press, 1980) 213, 246. The most direct evidence of the treatise on Cannon's invention concerns ¤16 in the draft proposal o f the Declaration, reading: "That, an enormous Proportion of Property vested in a few Individuals is dangerous to the Rights, and destructive of the Common Happiness, of mankind; and therefore every free State hath a Right by its Laws to discourage the po ssession of such Property." Hawke suggests that "Cannon's Bill of Rights failed to meet acceptance of an item he must have regarded with affection, since it was one of the few distinctive differences between his document and that passed by Virginia a few weeks earlier." Hawke, 190. Adams traces this provision to Burgh's Political Disquisitions, 3: 186, and finds an instance of its being excerpted in the Providence Gazette, 9 December 1775, shortly after the American edition was distributed. Adams, The First American Constitutions, 213. The property limitation was replaced in the final draft with another provision drawn from Burgh--the associated rights of petition, instruction, and assembly.

144"A Protestor," Pennsylvania Evening Post, 15 June 177 6: 1. This evidence contradicts John Phillip Reid's assertion that the political theory and constitutional right of freedom of the press "was not a factor in the revolutionary controversy between Great Britain and the colonies." Reid, Constitutional His tory of the American Revolution: The Authority of Rights, 7-8.

145See, Samuel Eliot Morison, Ed., Sources & Documents Illustrating the American Revolution, 1764-1788, and the Formation of the Federal Convention (1923; New York: Oxford University Press , 1965) 163-164, for an indication of the other clauses incorporated from the Virginia document. For the argument that Mason drew upon Burgh's Political Disquisitions in preparing the Virginia Declaration see Hugh Blair Grigsby's comments cited in Kate Mason Rowland, The Life of George Mason, 1725-1792 (New York: G. P. Putnam's Sons, 1892) 247.

146Scharf and Westcott, 1: 322; Edinburgh University Matriculation Roll, 1 (Arts, Law and Divinity, 1623-1858), typescript copies in the Special Collections, Edinburgh University Archives, were attached with a letter from Jo Currie to Louis M. Waddell, 6 February 1990, indicating that Cannon matriculated in Greek under Robert Hunter in 1762 and in Natural Philosophy under Jacob Russel in 1764. Dr. Waddell kin dly provided me with copies of this information. Pennsylvania Gazette, 19 November 1767: 3.

147Francis Alison, Lectures on Moral Philosophy, [MSS Notes of Jasper Yeates,1761], Archives of the University of Pennsylvania, Philadelphia; Francis Hutcheson, A Short Introduction to Moral Philosophy (Glasgow: Foulis, 1753) 134-135, 185.

148William Smith, Lectures on Rhetoric, 1759, MSS, University of Pennsylvania Archives, 8-10.

149Pennsylvania Gazette, 14 January 1768: 3; Pennsylvania Gazette, 5 Octob er 1769: 1. The school appears to have been quite successful. John Dickinson paid the tuition of William Hicks to attend from March-November, 1773, "Receipt," Logan Papers, 41:27, Historical Society of Pennsylvania; and John Heffernan advertised that he had "removed his school to that noted room over Mrs. Richardson's, near St. Paul's, in Third-street, lately occupied by Mr. Cannon, now of the college . . . ." Pennsylvania Evening Post, 14 October 1775: 1.

150Pennsylvania Gazette, 14 June 1770: 1.

151Trustees' Minutes, 15 October 1772, 2 February 1773, A2: 55, 60, MSS, University of Pennsylvania Archives; Pennsylvania Gazette, 13 October 1773: 3, 10 November 1773: 4; Trustees Minutes, 17 November 1773, MSS, A2-69, University of Pennsylvania Archi ves.

152Pennsylvania Packet, 7 February 1782: 3.

153For examples of the emphasis placed upon public speaking in the curriculum and details of how it was taught, see [Benjamin Franklin], "Proposals Relating to the Education of Youth in Pennsylvania, 1749," Papers of Benjamin Franklin, 3: 405-410; [William Smith], "Account of the College, Academy, and Charitable School in Philadelphia in Pennsylvania," The American Magazine, October 1758; Graydon 16-17; J. A. Leo Lemay, Ebenezer Kinnersley: Franklin' s Friend. (Philadelphia: University of Pennsylvania Press, 1964) 93-94; [Jacob DucheĞ], Caspipina, "To the Right Honorable the Lord Viscount P_____, at Oxford," Pennsylvania Packet, 16 March 1772: 1; Trustees Minutes, 2 February 1773, A2: 60, MSS, Unive rsity of Pennsylvania Archives.

154Burgh's The Art of Speaking was originally published in London in 1761, but the 4th Edition was also published in Philadelphia by Robert Aitken in 1775, and the market was such that Aitken also published the 5th Edi tion in 1780. For a discussion of the extensive use of the text in colonial America and the early years of the Republic, see Donald E. Hargis, "James Burgh and The Art of Speaking," Speech Monographs, 24 (1957): 275-284. Additional discussion and specif ic evidence that the book was used at the University of Pennsylvania (formerly College of Philadelphia), see William Parrish, "The Burglarizing of Burgh, or The Case of the Purloined Passions," Quarterly Journal of Speech, 38 (1952): 431-434.

155Burgh, The Art of Speaking (Philadelphia: Aitken, 1775) 5. This first of eight American editions was available in early 1775. Pennsylvania Packet, 3 April 1775. The Library Company of Philadelphia already held the 1761 London edition.

156Burgh, Political Disquisitions, 3: 246. Burgh can be counted--although he was not mentioned by Blasi--among those premising the value of freedom of speech on its utility in detecting and curbing the abuses of government power. See, Vincent Blasi, "The Checking Value in First Amendment Theory," American Bar Foundation Research Journal, Summer 1977: 521-649.

157This premise is more fully articulated in Burgh, Political Disquisitions, 1: 4-5.

158Burgh, Political Disquisitions, 3: 247.

159The implications and lim itations of Cato's Letters for free speech theory are closely examined in David S. Bogen, "The Origins of Freedom of Speech and Press," Maryland Law Review, 42 (1983): 444-450.

160Burgh, Political Disquisitions, 3: 247.

161James Burgh, The Dignity of Human Nature, 2 Vols. (1754; London: Johnson & Payne; Cadell, 1767) 2: 183-86, 287. This is the edition held by the Library Company of Philadelphia.

162Burgh, Political Disquisitions, 3: 250

163Burgh, Political Disquisitions, 3: 250-251.

164 Burgh, Political Disquisitions, 3: 254.

165Bork, 165. For detailed arguments on the implicit republican theory of political communication, see Stephen A. Smith, "Promoting Political Expression: The Import of Three Constitutional Provisions," Free Spe ech Yearbook, 27 (1989): 1-32.

166Burgh, Political Disquisitions, 1: 4.