Southern Crackdowns on "Incendiary" Publications
In 1849, Samuel M. Janney, a Virginia Quaker, published an article rebuking public remarks by William A. Smith, the president of Randolph Macon College, in defense of slavery. He soon found himself twice indicted by a Loudoun County grand jury – the second time after the court threw out the case on technical grounds.
Historian Clement Eaton, in his book Freedom of Thought in the Old South, laid out the background behind the Virginia statute Janney was accused of violating along with similar ones throughout the antebellum South.
The violent shock of the Nat Turner insurrection of 1831 started another wave of legislation restraining the freedom of the press and of speech. Governor [John] Floyd attributed the insurrection to incendiary publications of the abolitionists, especially to the recently founded Liberator. In a letter to the governor of South Carolina, he affirmed that black preachers had read from the pulpit the inflammatory publications of [David] Walker and [William Lloyd] Garrison, and that Yankee pedlars and traders had been instruments of inciting the slaves. The Virginia legislature of 1831-32 enacted laws which prohibited Negroes from preaching to their own color, and made illegal the printing or circulation of any pamphlet or other writing “advising persons of colour in this commonwealth to commit insurrection or rebellion”: Likewise, other Southern states like North Carolina, Alabama, and Tennessee, passed laws at this time limiting the freedom of Negroes to preach and to assemble.
Not until 1836, on the other hand, did the most intolerant period of Southern lawmaking begin. The abolition societies in the North had just initiated an active campaign to deluge the Southern States with emotional propaganda. A comparatively enormous output of pamphlets and newspapers was issued in the two years 1835 and 1836. This campaign of pamphlets was designed to reach the white slaveholders but not to circulate among the slaves. Consequently, they were sent to influential people throughout the South, Congressmen, clergymen, governors, etc: Southern resentment, as well as fear, was stirred by the discovery of a large sack of such pamphlets in the Charleston post-office in May, 1835. A mob destroyed this material, and throughout the South anti-abolition meetings were held, and legislatures called on the Northern States to suppress their abolition presses. Undoubtedly some of this zeal to suppress “the fanatics” was motivated by political considerations, namely, to defeat [Martin] Van Buren for President.
To meet this menace of incendiary publications, the Virginia legislature passed in 1836 the most intolerant law that was ever placed on its statute books. It provided severe punishment for any member or agent of an abolition society who should come into the state and maintain “that the owners of slaves have no property in the same, or advocate or advise the abolition of slavery.” Likewise, any person who should print or circulate a book, pamphlet, or newspaper for the purpose of persuading slaves to rebel or denying the right of masters to property in their slaves and inculcating the duty of resistance to such right, should be, deemed guilty of felony. To enforce these provisions postmasters and justices of the peace were given inquisitorial power over the mails, and offenders against these laws could be arrested by any free white person.
The Virginia assembly broadened the statute in 1848 “to include any free person denying that masters had a right of property in their slaves.”
This statute was vigorously assailed by the editor of the Richmond Whig, who declared that it violated some of the great constitutional safeguards of the liberty of speech and of the press. ... It seems clear that such legislation went beyond what was demanded by public safety and gravely encroached upon the liberty of speech and of the press. This law, which seriously interfered with the free transmission of the mail, never came before the Supreme Court to test its constitutionality and afforded a striking example of the non-assertion of Federal power.
The governor of Georgia in his message to the legislature, November 3, 1835, discussed the question [of] whether force or reason should be used in controlling the writers and distributors of incendiary publications. He concluded: “Should, however, the abolitionists be permitted to proceed without molestation or only have to encounter the weapons of reason and argument, have we not reason to fear, that their untiring efforts may succeed in misleading the majority of a people who have no direct interest in the great question at issue, and finally produce interference with the constitutional rights of the slaveholders.” The abolitionists in his eyes were monsters urged on by a reckless and bloodthirsty spirit. The Southern people had unalterably made up their minds about the preservation of slavery. “It is a subject with which we cannot suffer a Stranger to intermeddle,” he declared. It was a clear duty of the Northern States therefore to suppress the abolitionists and their incendiary publications.
The legislation of the states of the Upper South, with one striking exception, reveals the same general rigor. Maryland had a very severe law, enacted in 1836, that trenched upon the liberty of speech and of the press. It was declared “a high offence against the supremacy of this State” for a person to write or circulate any publication, having a tendency to create discontent among, and stir up to insurrection, the people of color of the state. The penalty for violating this provision was confinement in the penitentiary for not less than ten nor more than twenty years. In 1842 the legislature increased the stringency of laws relating to seditious publications, by making it a felony for any free Negro to call for or receive any abolition newspaper or pamphlet at the post-office. The grand juries were required to summon all postmasters before them when they deemed it proper to examine them in regard to incendiary publications. The Tennessee law, also passed in 1836, was practically identical with that of Maryland. Neither Maryland nor Tennessee, however, prohibited the teaching of Negroes to read and write.
The legislation of Kentucky presented a notable exception to the stern [l]aws of the other border states. Kentucky had no legislation prohibiting the teaching of Negroes to read and write, nor until 1860 did she have any laws infringing the freedom of the press or of speech. On March 3, 1860, the General Assembly finally passed a law prohibiting the writing or circulation of publications, “with intent to advise or incite Negroes in this state to rebel or make insurrection, or inculcating resistance to the rights of property of masters in their slaves.” The mildness of Kentucky’s laws may explain, in part, the prevalence of so much mob violence there in the decade 1850-60. It may seem strange that Kentucky, being so near a dangerous abolition center, Ohio, did not have stringent laws against incendiary publications at an earlier date. Several reasons contribute to explain this anomaly: the presence of remarkable leaders, like Henry and Cassius Marcellus Clay, who threw the weight of their magnetic personalities on the side of liberalism; the influence of the neighboring free-soil states; and the relatively small proportion of slaves in Kentucky, constituting about one fifth of the population in 1850.
The laws of the Lower South infringing the liberty of speech and of the press differed scarcely at all from those of the Upper South, except that they carried with them savage penalties. The Louisiana law, for example, enacted in 1830, placed extreme penalties on anyone who published, or spoke from the bar, the bench, the stage, or the pulpit, any language that had a tendency to produce discontent among the free colored population or excite insubordination among the slaves. This law practically suppressed criticism of slavery and constituted a dangerous invasion of constitutional liberty.
Most of the states of the Cotton Kingdom, Georgia, Alabama, Mississippi, and Louisiana, passed severe laws early—around the year 1830—and thereafter did not find it necessary to modify or strengthen them. The Upper South, on the other hand, was continually repairing the old laws in the direction of greater strictness. The volatile state of South Carolina also followed this latter procedure. Not until 1859 was the cope-stone placed on her edifice of legislation suppressing free speech. In that year she made it a crime, punishable at the discretion of the jury, to subscribe to or receive a newspaper, book, or pamphlet “calculated to disaffect any slave or slaves in this state,” or to write or speak on slavery to that effect. The Western border states passed laws prohibiting the writing or circulation of seditious publications relatively late, and were very much influenced by the Virginia law of 1836, The Arkansas law of 1850, for example, made it a penal crime to “maintain that owners have not right of property in their slaves.”
When the legislation of the border states is compared with that of the Lower South, it becomes clear that, so far as legal enactment was concerned, both sections were equally intolerant. The severe code of border states like Virginia and Maryland was affected by the fact that they lay close to the literary frontier of the abolition movement. Furthermore, sterner legislation was needed, because the Upper South was not a unit in its social texture. It contained diverse elements, like the Quakers, the Germans of the Shenandoah Valley, settlements of Northern immigrants, and the individualistic mountaineers of the Appalachians, whose loyalty to the slave regime was doubtful.
Much of the Southern legislation on seditious publications depended on the interpretation by the courts as to whether the liberty, of speech and of the press was actually abridged. Northern historians have tended to render a verdict of intolerance largely on the basis of laws and of the Southern blockade against “foreign” abolition publications. But the enforcement of law and its modification by public opinion afford a more realistic basis on which to judge the Southern people. The evidence for the Upper South shows that the extreme laws limiting the freedom of discussion were tempered in nearly every case, by giving the law its most constricted and humane interpretation. Indeed, the courts of these states preserved traditions of liberality and fairness that were noteworthy. This maintenance of poise is all the more remarkable when it is contrasted with the narrow and intolerant spirit that dominated the Federal courts in applying the Sedition Act of 1918.
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