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ABSTRACT for "WE SHALL NOT SUBMIT!' How the Twenty-Fourth Congress and the
Jackson Administration attempted and failed to stop the circulation of
abolitionist publications through the United States Post Office during the
During the rising conflict over slavery, the Twenty-Fourth Congress and the
Jackson Administration attempted and failed to stop the circulation of
abolitionist publications through the United States Post Office during the
late 1830s. The age of Jackson includes precursors to the "clear and
present danger" and "bad tendency" tests of free press jurisprudence during
the twentieth century. This legal history illustrates that openness during
political discourse promotes democratic solutions during times of crisis.
"'WE SHALL NOT SUBMIT!'
How the Twenty-Fourth Congress and the Jackson Administration attempted and
failed to stop the circulation of abolitionist publications through the
United States Post Office during the late 1830s."
By Kevin R. Kemper
University of Missouri-Columbia
April 1, 2004
Submitted as a student paper to the History Division of AEJMC 2004
Inquiries should be addressed to:
Kevin R. Kemper
478 Chris Drive
Columbia, MO 65203
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This author would like to thank Professor Charles Davis for his wit,
insights, and encouragement during this project.
"'WE SHALL NOT SUBMIT!': How the Twenty-Fourth Congress and the Jackson
Administration attempted and failed to stop the circulation of abolitionist
publications through the United States Post Office during the late 1830s."
6,266 words, not including notes.
A grand sight it had to have been, with some of the most important
statesmen of the day former, present, future, and hopeful presidents,
vice-presidents, senators and representatives filling the hallowed
Congressional chambers with lofty rhetoric and passionate disagreements
about the meaning of freedom of the press, bad tendency, due process, the
right to know, suppression, and sedition. This particular scene could have
been during the tumultuous eighteenth century as the Founding Fathers
framed the United States Constitution and later suppressed the press with
the Alien and Sedition Acts, or during the twentieth century, as the
American government grappled with issues about Communist propaganda after
World War I, or with the black armbands or the Pentagon Papers of the
Rather, the time was 1835 and 1836, the partly cloudy sunset of President
Andrew Jackson's administration. Despite the sunshine of a certain level
of democratic and economic progress, the dark storms of sectionalism and
civil war loomed on the horizon, already rumbling with winds of abolition
and the thunder of threats of battle. Fear filled the hearts of white
Southerners, especially their politicians, as hundreds of thousands of
newspapers, magazines, and other materials flooded the South, calling for
an end to slavery. The white Southerners thought that such messages would
provoke the slaves into insurrection, rioting, and deaths. Perhaps more
than that, the Southerners feared the death of their precious plantation
economy, built upon the rich lands stolen from American Indians and the
scarred backs of African slaves.
In the midst of this conflict, freedom of the press received and survived a
profound challenge as certain members of the Twenty-Fourth Congress and the
Jackson administration attempted and failed to stop the postal circulation
of abolitionist newspapers about one-quarter of a century before the nation
erupted in the deadly Civil War. The postal issue raises questions
about whether the press had a First Amendment right during that time to
circulate its newspapers and whether the public had a First Amendment right
to receive those newspapers. Along with numerous other anecdotes, the
attempts to restrict circulation illustrate one main point: Certain leaders
of the federal government at that time explicitly wanted to control rather
than facilitate the flow of information about slavery. This paper is more
than just about freedom of the press to publish; the freedom of the press
was challenged because the government wanted to deprive United States
citizens and slaves from knowing certain information.
The government argued that violence, civil war, and social change itself
could be avoided or at least delayed by these suppressions. In
fact, some scholars look to these historical examples as arguments for the
control of information in a democracy. Thus, the government actions
undermined the need for social change through the abolition of the scourge
called slavery. Ultimately, the slaves received emancipation at the end of
the Civil War during the 1860s. There is no question that the abolitionist
movement contributed to the start of the Civil War and the ultimate
emancipation of slaves. Certain people obviously hoped to solve the
slavery question without war; citizens in the constitutional republic
called the United States could affect change by using the right to vote for
and to lobby politicians, as well as to receive and express political
opinions. Or so they thought.
This paper details how the government suppressed the abolitionist movement
and how that movement responded by claiming First Amendment
protections. The underlying premise is that the freedom of the press and
other First Amendment liberties, along with the right to know about public
issues, were pressing issues during the early nineteenth century. By
understanding the history and legal arguments of that day, one could better
understand how these and related issues have grown from the early days of
the republic until the twenty-first century.
This historical study examines certain Congressional debates,
publications, and correspondence of that time, giving a sense of the
controversy raging about slavery and freedom at the time. In part because
scholars have doubted whether the First Amendment was a significant issue
during the early nineteenth century, this paper offers ample evidence from
the suppressed and the suppressors. The research question asks how the
Twenty-Fourth Congress and the Jackson administration, which was
predominately run by white men of the South, controlled information about
the abolition of slavery. The answers inform a deeper question of how such
controls of information could affect a constitutional republic during a
time of national crisis.
Even though the storm of the Civil War was a quarter of a century away, and
the American Revolution was about one-half of a century past, the sparks of
sectional strife ignited the passions of the United States' citizens and
leaders during the Jackson administration. One of the particular
controversies was slavery, something known in the Americas since at least
the European invasion and tolerated until emancipation during the Civil
War. One of the key controversies related to slavery was what William W.
Freehling called "The Nullification Era," when states rights' advocates
claimed that "[s]ince state conventions had been the bodies which had
ratified the Constitution, they retained authority to nullify any federal
So, when Congress passed and President Jackson signed a law that lowered
but still kept protective tariffs on goods in 1832, South Carolina and
other Southern states believed they could nullify that law by not obeying
it or even passing a law against it. This tariff resulted in threats
not actually realized until the 1860s of secession and Civil War. With a
depression in 1819, slave revolts during the 1820s and 30s (including Nat
Turner's infamous revolt in Virginia in 1831), the Southern gentry believed
that a tariff, along with talk of abolition, would further undermine the
economic difficulties being experienced in the South. Without unpaid
labor for plantations and farms, without protections against pressures from
markets, many in the South believed that the region would become
economically enslaved to the North.
The periodicals of the day discussed these issues, often with passion, but
none did so with as much virulence as the periodicals published by
abolitionist organizations. The newspapers, magazines, and pamphlets
provide an opportunity for citizens to voice their opinions for and against
slavery and related issues.
[An] aspect of the significance of a national political forum comes from
the process of argument and counter argument which produced not just
caustic and strident propaganda but also serious analysis on issues. In
the debate that continued month after month, editors were forced to rely
not just on partisan bluster but to develop reasoned and reasonable
arguments for their ideas and party policies.
Thus, the newspapers and other periodicals supported the democratic
interchange about the issues of the day. "The printing press was an
instrument not solely for propaganda and agitation. Perhaps more
important, it was also a builder of community among the already converted,
the role that most interested [French political observer Alexis de]
Tocqueville." Also, Hezekiah Niles, the well-known editor of Nile's
Weekly Register, "searched for ways to 'avoid the coming storm.'" One
wonders if the moderate views were influenced by the suppression of
abolitionist publication: that is, did the suppression have a "chilling
effect" upon mainstream papers? Yet:
Niles believed that war could be avoided if the South would gradually move
away from its slave owning plantation economy towards a Southern version of
the American system. This would preserve the Union by decreasing economic
and political tensions between sections of the country.
Still some of that rhetoric became heated as some editors focused upon
those unconverted to the cause of Union and abolition. "By mid-1832,
[Charles G.] Greene even condemned John C. Calhoun, one of the leading
proponents of nullification, saying that nullifiers and the South
Carolinian in particular had tarnished their states-rights ideas with 'wild
theories, rant, cant, braggadocio and fanaticism."
A vast array of powerful politicians from presidents to Congressmen to
Supreme Court justices came from the South. One of the most vocal
politicians, U.S. Senator John C. Calhoun of South Carolina, served as vice
president during Andrew Jackson's first term, which began after the 1828
election. The seemingly stately senator fancied himself as the hero of the
states, which he equated with the power of the people. For Jackson's
second term, Calhoun chose to become a U.S. senator from South Carolina,
and thus was replaced with Martin Van Buren, just four years away from his
own presidency. This likely created more political and personal antagonism
between Calhoun and Jackson, as well as Calhoun and Van Buren. These
rivalries paled in comparison to the growing rivalry between the
industrialists of the North and the plantation interests in the South.
Again, one needs to remember that the growing controversy over slavery
only exacerbated the conflict already raging among the sections of states
and the federal government. Whitemarsh Seabrook, a South Carolinian state
legislator and later governor, voiced concern as early as 1825 about the
rising tide of abolitionist sentiment, saying that Northeastern papers were
enemies of slavery. In 1827, another South Carolinian, Robert
Turnbull, called an end for the discussion of slavery because he feared
that such a debate would force Congress "officially to express its opinion
against slavery as an evil, and the profession of a desire to eradicate it
from the land." In one of the most brutally honest revelations of the
true feelings of certain Southerners, Turnbull said:
Congress must not be permitted to express any opinion, that slavery (which
is the fundamental policy of this State) is an EVIL. The expression of any
such opinion, would be an interference with a subject, which is not theirs.
Interestingly, Turnbull recognized the power of information when in the
hands of the public:
"There must be no discussion. Discussion will cause DEATH and DESTRUCTION
to our negro property. Discussion will be the equivalent to an act of
emancipation, for it will universally inspire amongst the slaves, that
Turnbull, among others, apparently believed that the people did not have
the right to know, a concern stretching before and beyond the 1830s.
The attempted censorship of mail flowing to the South during the age of
Jackson illustrates the need for this right to know. It also illustrates
the growing antipathy among slave owners and abolitionists, as well as
among the Northern and Southern states. In what could be considered a
standard study of the incidents, Clement Eaton documented the censorships
and connected them with the broader First Amendment interests.
CENSORSHIP is an instrument by which a society protects its vital interests
in times of danger.
The Southern record demonstrates the difficulty of
suppressing pernicious and dangerous propaganda without at the same time
destroying the literature of reform, of protest, and of sanative criticism.
This censorship occurred, oddly enough, in a time that Michael Schudson
sees as an era of democratic transition, or a "new egalitarian ethos" that
evolved across the United States. Citing Tocqueville's assessment of
the power of voluntary associations, Schudson sees 1801-1865 as a time when
citizens banding together for political purposes. Yet, this must have
frightened some in the government, as "freedom of association" is "a
dangerous liberty." To illustrate this alleged danger, Schudson
discusses the Gag Rule of 1836, which prohibited petitions in Congress
about slavery, and the censorship of Southern mails as an example of the
reaction to the growing abolitionist movement.
Limiting access of information was not a new concern in the United
States. In a close examination of the secrecy surrounding the XYZ Affair
and Jay's Treaty during the late Eighteenth Century, Martin Halstuk argues
that the founding fathers had not conceptualized a right to know because
they had shown affinity for secrecy during governmental affairs.
The absence of a consensus that the public had a right to know what
government was doing informs the question of whether historical evidence
supports the idea of a First Amendment right of press access to government
information. If there was no prevailing sentiment that the public had a
right to know what the people's government was doing in the name of the
people, then there is little basis to argue that a consensus of early
leaders supported the notion that the First Amendment was intended to
provide for special press privileges. For the entire rationale behind such
constitutional protection would be to ensure the public's right to know.
Yet, one must distinguish between the press getting information from the
government and the government interfering with the press getting
information it already has to the people. Assuming that Halstuk is correct
"that some of the most powerful leaders of the Federalist Party, including
prominent and influential framers, embarked on a policy of governmental
secrecy to control government information and restrict its dissemination to
the public and the press," one must not think that the policy of secrecy
reflected the all of opinions undergirding the framing of the Bill of
Rights. Just because the suppression existed historically does not
mean that the Federalists or the Jacksonians or South Carolinians were
correct in their understandings.
If anything, the evidence Halstuk finds so compelling may well support the
concept that the openness versus secrecy debate has existed since the
beginning of the republic. Secrecy and suppression advocates have the
burden of proof to show that controls of information by government are in
the best interest of the United States. Like in any good debating society,
the negative is assumed true until the affirmative is unequivocally
supported by logical premises.
Scholars often have examined the intrusions against free expression during
the late eighteenth century era of the Alien and Sedition Acts, as well as
the post-World War I decisions by the U.S. Supreme Court. Hidden among
that scholarship is the nineteenth century, a time of profound social
change between the American Revolution and the modernization of the
twentieth century. David Rabban believes the nineteenth century could well
be called "the forgotten years" in terms of free expression
scholarship. Since Rabban focuses his treatise upon the post Civil War
era, the early nineteenth century could be termed "the forgotten 'forgotten
years.'" In fact, he encourages "further research into the still largely
unknown years between 1800 and the Civil War."
Late nineteenth century jurisprudence referenced issues in the 1830s as
examples of why the United States Post Office would or would not have
authority to regulate the content of mail In fact, Rabban echoes
Zechariah Chafee's seminal work, Freedom of Speech, to remind the reader
that legal scholars in the nineteenth century looked to Blackstone's
commentaries for interpretation of common law, including the law of
libel. For instance, "Blackstone interpreted the common law to
preclude prior restraint on speech, but to allow subsequent punishment of
expression for its tendency to disrupt peace and good order."
Blackstone, an English jurist who profoundly influenced American
jurisprudence, expressed grave concerns about prior restraint, yet never
argued for an unqualified right to the press or speech:
[T]he 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
Blackstone also believed that punishing inflammatory speech or writings at
times "is necessary for the preservation of peace and good order, of
government and religion, the only solid foundations of civil
liberty." Taking Blackstone literally, as many nineteenth century
jurists did, one might understand why the statesmen in the 1830s thought it
prudent to suppress the circulation of "inflammatory" materials. Yet, the
proverbial "chilling effect" of that censure could have undermined the
general liberties of those who would legitimately call upon the government
to correct egregious policies that damage the public and the
republic. And, it remains an open legal question of what boundary that
questionable expression must cross before punishment is
justified. Blackstone himself admitted that sedition including
incitement and seditious publications was punished no longer as a capital
offense. Perhaps democracy becomes more tolerant of dissent as it matures.
Some scholars may feel they have little by which to judge the extent of
tolerance of dissent during the nineteenth century, as the United States
Supreme Court dealt with little in the way of First Amendment issues before
World War I. Still, Rabban points out that in U.S. v. Hudson &
Goodwin, 11 U.S. (7 Cranch) 32 (1812), "federal courts did not have
jurisdiction over common-law crimes, thereby reducing their exposure to
free speech issues." So, just because the U.S. Supreme Court did not
deal with the issue, one may not assume that the issue was not seen in
lower courts, legislatures, and the press.
Perhaps, as Rabban suggests, the policies of U.S. Senator John C. Calhoun
of South Carolina during the 1830s related to the suppression of
"incendiary publications" were a precursor of the "bad tendency test."
This concept found voice in Schenck v. U.S., 249 U.S. 47 (1919), as the
Supreme Court worried about the tendency of certain communications to
undermine legitimate national interests. "The question in every case is
whether the words used are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent," said Justice
Holmes for the Court. As the discussion below reveals, a "clear and
present danger" in a sense was considered by some to be in the abolitionist
material during the 1830s.
The debate over the "incendiary publications"
Scholars need an elaborated historical discussion of the debates in the
Twenty-Fourth Congress, as well as pertinent correspondence and
publications, to understand what the major political players during the
early nineteenth century thought about freedom of the press. Speaking
and/or voting on related issues would be one former president and son of a
president (Representative John Quincy Adams of Massachusetts); four future
presidents (John Tyler of Virginia, who also served as vice president under
Martin Van Buren; Franklin Pierce of New Hampshire; James Buchanan of
Pennsylvania, and Abraham Lincoln of Illinois); and at least two major
presidential hopefuls, including John C. Calhoun of South Carolina and
Henry Clay of Kentucky.
1. Incendiary publications
During 1835 and 1836, a torrent of at least one million anti-slavery
publications entered the United States mail, destined for civic leaders
throughout the country, especially in the South. This coincided with
the early days of the Twenty-Fourth Congress December 21, 1835 as John
C. Calhoun, upon a message from President Jackson on December 7, moved that
a special committee be created to deal with the issue of whether to
restrict incendiary publications in the mail. In the presidential
message, "[Jackson] recommended that Congress pass a law to prohibit the
circulation through the mails in the Southern states of 'incendiary
publications intended to instigate the slaves to
insurrection.'" Jackson wrote to Postmaster Kendall:
we can do nothing more than direct that those inflamatory [sic] papers
be delivered to none but who will demand them as subscribers; and in every
instance the Postmaster ought to take the names down, and have them exposed
thro the publik [sic] journals as subscribers to this wicked plan of
exciting the negroes to insurrection and to massacre.' He declared that
when such subscribers 'are known, every moral and good citizen will unite
to put them in Coventry, and avoid their society. This, if adopted, would
put their circulation down everywhere, for there are few so hardened in
villainy, as to withstand the frowns of all good men."
Kendall, on his own or under the influence of President Jackson, embraced a
policy of suppression, but did not want to be explicit in his own role in
"Although he admitted that he had no legal authority of censorship in this
matter, he encouraged an unofficial exclusion of abolition literature from
the Southern mails by individual postmasters. He adopted the Southern
contention that the abolition publications were calculated to fill every
family with black assassins and to repeat the horrors of Santo Domingo. He
commended the postmaster of New York City for his efforts to persuade the
abolition societies voluntarily to renounce sending their publications
through the mails to Southern addresses and, upon their refusal of this
request, his decision not to be an accomplice of "fanatics" in forwarding
dangerous missiles to the South. In his report of December 1, 1835, he
declared that the state laws against the circulation of incendiary
publications should be obeyed by the officers of the general
government. He also reported his action in regard to the Charleston mob,
and he observed that his policy had prevented the circulation of
'obnoxious' publications in the South."
Calhoun, as a senator from South Carolina, obviously would be alarmed at
any problems of this sort in his beloved state. It was that love of his
state that drove his political philosophy. For instance, Calhoun spoke out
in 1836, "opposing a federal censorship of the mails. 'The object of
publishing is circulation,' said this great defender of minority rights;
'and [for the federal government] to prohibit circulation is, in effect, to
prohibit publication.'" Calhoun did not oppose federal censorship
because of an aversion to censorship, but rather an aversion to the federal
government's infringement on what Calhoun believed to be state's rights.
"The great Nullifier objected to Jackson's proposal of a federal law
prohibiting the circulation through the mails of incendiary publications in
the slave states. Instead he reported a bill making it illegal for any
deputy postmaster knowingly to receive and put in the mail any pamphlet,
newspaper, handbill, or other printed paper, or pictorial representation,
touching the subject of slavery, directed to any person or post office in
those states where the laws prohibited their circulation."
Thus, Calhoun in the report from the special committee, modified the bill
for the postmasters to recognize the authority of the state when deciding
if something were incendiary.
Calhoun, recognizing the First Amendment issues in the proposed law to the
Sedition Act that had expired at the turn of the previous century, saying
that both on their face would violate the First Amendment. Calhoun,
who was born in 1782 and coming of age as a man during the end of the
century, would have been able to remember the political angst created by
the issue. Despite his recognition of the free press issues, Calhoun still
clung to the belief that the powers reserved to the states included the
power to put down sedition through suppression. In fact, South
Carolina had taken upon itself the power, as a mob led by former South
Carolina Governor Robert Y. Hayne invaded the U.S. Post Office in
Charleston, "destroy[ing] several sacks of mail containing anti-slavery
pamphlets" during the summer of 1835.
During the later discussion in the Senate about the propriety of
suppressing the mail, Senator Benjamin Watkins Leigh claimed that even
"intelligent individuals" in the North "were deeply impressed with the
wickedness of these incendiary publications, and were ready to go with him
in a common effort to suppress them." One of the few Senators to express
any reservations that day was also from the South Willie P. Mangum of
North Carolina. But his fears were more in the growth of federal power
into state affairs than in any perceived threat of insurrection because of
abolitionist literature. Mangum later served on that committee with
Senators Calhoun, John P. King of Georgia, John Davis of Massachusetts, and
Lewis F. Linn of Missouri.
The special committees report came by the hand and voice of Calhoun on
February 4, 1836, proposing a bill "prohibiting deputy postmasters from
receiving or transmitting through the mail
certain papers therein
." Slavery or abolition was not explicitly referenced in
that particular version of the bill. Calhoun later brought up the bill for
consideration on April 6, but deferred to a request by Davis for a brief
postponement of the debate until the next day.
Davis' speech on April 7 stands as one of the few developed speeches
expressing First Amendment concerns about the move to suppress circulation
of abolitionist literature. In a critique of the committee's report, Davis
Congress has no constitutional power to pass a law to regulate the Post
Office, by making the postmasters the judges to determine the moral,
political, religious, or other tendency, or printed or written matter, for
this would be an indirect invasion of the liberty of the press, and a
perversion of the purposes and intent of the power granted to manage the
Post Office. It likens the case to that of the sedition law, which was
condemned on the ground that the press was indirectly invaded by it."
Davis then asserted that allowing the states to exercise the same power
would achieve the same problematic result. Then, Davis presciently points
out that allowing suppression would imply the power of examination of the
mail, for "how can the receiving or delivering postmaster know what he
receives or delivers, without examination?"
Of all the debates, Davis strikes at the heart of the problem and
foreshadows legal arguments to come in the following centuries the
definition of incendiary. So, he refers the senators to a case against
Robert G. Williams, the editor of the Emancipator who was indicted by the
grand jury of Tuscaloosa, Alabama, for the following "incendiary" information:
God commands and all nature cries out that man should not be held as
property. The system of making men property has plunged 2,250,000 of our
fellow-countrymen into the deepest physical and moral degradation, and they
are sinking deeper."
A jury in Alabama said those short sentences would "
insurrection, and rebellion, among the slave population of said State, in
open violation of the act of the General Assembly in such case made and
provided." Davis apparently felt that the words of Williams did not
rise to the level required in the indictment in Alabama. Davis worried
that allowing the states to exercise such power would lead to serious
conflicts among the states and federal government, not to mention the abuse
of the system of liberty guaranteed in the U.S. Constitution. He also
worried that the suppression would cause the public to distrust the Post
Office, and thus the government itself. Yet, despite his antipathy to
trusting the suppression to the states, Davis concluded his oratory by
challenging South Carolina to suppress the information. "Let her try these
strong measures, and, if they fail, it will then be in season to ask for
aid here, and then soon enough to consider such a measure as
this." After a brief retort from Calhoun, the Senate adjourned for the
Senator Felix Grundy of Tennessee offered a substitute bill on April 30,
but the amendment, along with a proposed amendment by Calhoun, was rejected
in tie votes on June 2. The decisive day came June 8, when the Senate
rejected the bill, 18-25, mainly upon sectional divisions. The debate on
that day had mythical proportions, as the popular Senator Daniel Webster of
Massachusetts rose in opposition against his well-known sectional and
political nemesis, Calhoun. Webster connected the bill and the First
Amendment in what could be viewed as an early "slippery slope"
argument. "He was afraid that they were in some danger of taking a step in
this matter that they might hereafter have cause to regret, by its being
contended that whatever in this bill applies to publications touching
slavery, applies to other publications that the States might think proper
to prohibit; and Congress might, under this example, be called upon to pass
law to suppress the circulation of political, religious, or any other
description of publications which produced excitement in the
States." Then Webster, while referring to the First Amendment,
apparently made a due process argument by wondering how a newspaper could
be deprived of property "without a legal trial." This sounds like an
argument made in an abolitionist magazine during the same time frame of the
debate by an attorney named N.P. Rogers, who said,
"Article V. of the amendments. As we cannot amend this, we here after a
remark or two close our excursion, bidding, as we do so, slavery and its
apologists, welcome to all the consolations of the Constitution. The
people finding in their state and section controversies they had overlooked
individual and personal rights, adopts amendments to the
Constitution. First, they guard against abridgment of the freedom of
speech and of the press, and the right peaceably to assembly, and the right
of petition. Now whether this be directly anti-slavery or not, we aver
that the exercise of these rights, will abolish slavery and that the
toleration of slavery, will, and has well nigh abolished these. Mobs in
the service of slavery, have violated the rights that the Constitution
protected from the interference of Congress, and Congress has
presumptuously trampled under foot the sacred right of petition, for love
of slavery and fear of slaveholders."
Rogers then goes on to claim the due process clause of the Fifth Amendment
protects rights of "the colored man...."
James Buchanan of Pennsylvania, ultimately to become the U.S. president in
charge when the nation erupted into Civil War a quarter of a century later,
stood in opposition to Webster, claiming that because the clause in Article
I, Section 8, Subsection 7 of the U.S. Constitution granted Congress "power
to establish post offices and post roads," Congress thus could regulate the
content of mails. Later, Davis would retort that the Postal Clause
must be balanced with the Press Clause of the First Amendment, both of
which were passed about the same time.  Also, Davis had said on April
7, "It is, then, I think, clearly the duty of Congress to provide for the
speedy transmission of intelligence; and in this, I doubt not, we all
In reference to the First Amendment, "[Buchanan] understood the freedom of
the press to mean precisely what the Senator [Webster] from Massachusetts
had stated. But it does not follow, as the gentleman contends, that
because we have no power over the press, that therefore we are bound to
carry and distribute any thing and every thing which may proceed from it,
even if it should be calculated to stir up insurrection or to destroy the
Government?" So, some three decades after the expiration of the Alien
and Sedition Acts, leaders in government still viewed seditious libel law
as a plausible means of suppressing opposing political thought. One of the
most prolific scholars about seditious libel has been Leonard Levy, who
argues that seditious libel as a crime and a means of suppressing the press
continued after the Alien and Sedition Acts. He defines seditious
libel as "any malicious criticism about the government that could be
construed to have the bad tendency of lowering it in the public's esteem,
holding it up to contempt or hatred, or of disturbing the peace was
seditious libel, exposing the speaker or writer to criminal
prosecution." Hence, many of the Southern (and some of the Northern)
senators feared that abolitionist literature would have this "bad tendency."
The Alien and Sedition Acts, which had expired at the beginning of the
nineteenth century and the Jefferson administration, provided precedent for
at least one South Carolina politician, James Hamilton, Jr., who argued
that the 1798-99 Virginia and Kentucky Resolutions, which upended the acts,
gave the states the authority to overturn federal laws. This typified
much of the rhetoric of nullification during the Jackson administration,
which ended during the Twenty-Fourth Congress.
In the end of the debate, the Senate voted 25-19 against the measure,
mainly along sectional lines. The House had considered a similar measure,
but did not consider the bill out of committee. Little useful debate
ensued. Yet, the discussion among the Senate, the President, and the
Post Office reflects the genuine divisions that already had developed among
Northerners and Southerners. And, even the pro-slavery and indifferent
politicians could not find common ground on all aspects of this issue. As
"Benton records a story showing Calhoun's partisan zeal against [then vice
president Martin] Van Buren. Calhoun and the anti-Jackson men brought
about a tie vote on the engrossment of the bill concerning incendiary
publications. Van Buren, the presiding officer of the Senate, happened to
be absent from his chair temporarily when the vote was taken. But Calhoun
called eagerly and loudly for his rival to cast the deciding vote."
Despite this defeat, Van Buren voted to help defeat the measure. And,
the states continued to do what they could to suppress circulation of
abolitionist papers. In fact, certain slavery advocates did not just want
to kill the publications they sometimes wanted to kill the publishers.
"Slavery Warring Against Principle.Last year a public meeting, held at
Clinton, state of Mississippi, to consider the subject of abolitionism,
passed the following resolution.
"'Resolved, That it is our decided opinion, that any individual who dares
to circulate, with a view to effectuate the designs of the abolitionists,
any of the incendiary tracts or newspapers now in a course of transmission
to this country, is justly worthy in the sight of God and man, of IMMEDIATE
DEATH; and we doubt not that such would be the punishment of any offender
in any part of the state of Mississippi, where he may be found!'"
Abolitionists continued their onslaught of materials as many of them
believed they were on a mission from God to eradicate slavery. Their
fearlessness often knew few boundaries. For instance, Elizur Wright Jr.,
the editor of the Quarterly Anti-Slavery Magazine, later wrote to Calhoun
on October 18, 1837, offering to him a place on the pages of the
abolitionist publication: "Here then we offer to those who deprecate the
effect of our agitation, access to the same readersthe power of sending
the antidote along with the poison." As far as this author can
ascertain, Calhoun did not take up the editor on the offer of equal time.
The amount of anti-slavery literature being sent through the mails was
enormous, and the flow did not cease before or after the attempted
suppression. The enormity caused great concern for the Southerners who
feared slave uprisings. And, the mainstream press suffered as well because
of Southern attempts to censor the mail. In a prescient editorial, The
New-Yorker editor Horace Greeley railed against Kendall's policies, saying
he should "compel his 'hirelings' to forward and deliver our sheets with
regularity and proper despatching [sic] without stealing, losing,
destroying, or defacing one-half of them by the way."
One must remember that the failure of some in the Twenty-fourth Congress to
accomplish their suppressions did not mean that a free flow of information
existed. The inundation of abolitionist thinking was significant, but not
complete. The battle continued, and continues, and likely will continue as
people still debate the extent of First Amendment liberties, many times for
their own purposes, like the Southerners and sympathizers during the
Twenty-Fourth Congress and the Jackson Administration.
This struggle over abolition continued until the Civil War. The struggle
over free press versus security continues to this day. Perhaps the
essential argument reflects an essential truth about democracy in a
democracy, people even disagree about the nature of democracy itself. In
fact, Chaffee said, "The true boundary line of the First Amendment can be
fixed only when Congress and the courts realize that the principle of which
speech is classified as lawful or unlawful involves the balancing against
each other of two very important social interests, in public safety and in
the search for truth."
Yet, one needs to look at the example of the Twenty-Fourth Congress and the
perverse national debate of the time to consider the ramifications of
controlling information. Yes, the Southerners attempted to hold back the
flood of protest about slavery, and that arguably could have contributed to
the delay in the Civil War. Yet the Civil War came anyway. One wonders if
slavery could have been resolved without a civil war if the people had
unlimited access to abolitionist materials in the South.
Also, this paper clearly reveals significant discussions about the First
Amendment and relate concepts during the 1830s. Civil libertarians,
looking to the First and Fifth amendments, believed that government had no
business whatsoever in controlling information. Others hoped to use the
concept of "seditious libel" and "bad tendency" to justify the suppression
of contrary political thought. The chilling breath of the suppression
fanned the flames of abolitionist sentiment into an inferno. Emancipator
editor William Lloyd Garrison, in a letter to the president of the
Anti-Slavery Convention in Providence, Rhode Island, outlined several
benefits of the abolitionist movement, besides just abolition:
Again. It is to prevent the establishment of a despotic censorship of the
press, which is now strenuously advocated even by those high in authority
among us. What is a free press but the palladium of our rights? For whom
is it desirable? For ourselves our country the whole world. When is it
desirable? To-day to-morrow now in this age in all ages. How much
is it worth? More than argosies of gold as much as life itself. What
shall wrest it from us? No mobs no penal enactments no bodily
sufferings no confiscations nothing but that which puts an end to our
earthly existence. We will submit to taunts, calumnies, insults, outrages,
tortures but to a censorship of the press, especially on the subject of
slavery, WE WILL NOT SUBMIT not if a gibbet is erected for us at the
corner of every street, and the fires of martyrdom blaze in every square."
 This paper focuses upon the first session of the Twenty-Fourth
Congress, though the Congress dealt with the issues before and after early
1835 and late 1836. The discussion and implications about freedom of the
press and the right to know during this narrow time frame is worthy of one
study. The other incidents will be worthy of future studies, which
ultimately would result in this author's dissertation.
 See Whitemarsh Seabrook, "A Concise View of the Critical Situation and
Future Prospects of the Slave-Holding States in Relation to Their Coloured
Population," (Charleston, S.C.: 1825), in William W. Freehling, ed., The
Nullification Era: A Documentary Record (New York City: Harper Touchbooks,
1967), 16; and Robert J. Turnbull, The Crisis, in Freehling, Nullification,
writing in the Charleston (S.C.) Mercury under the pen name Brutus. These
articles later were published as a pamphlet called The Crisis.
 Stephen Holmes, Passions and Constraint: On the Theory of Liberal
Democracy, (Chicago: University of Chicago Press, 1995).
 Freehling, Nullification, xiii.
 Arthur M. Schlesinger, Jr., The Age of Jackson, (Boston, MA: Little,
Brown & Co., Bay Back Book version, 1945), 95.
 Freehling, Nullification, x-xi.
 This paper also focuses upon abolitionist publications for a couple
of reasons. First, the abolitionist publications seemed to be more of a
target of censorship, though some evidence exists that the practice of
policing the post offices affected mainstream publications. See note 82,
infra. Secondly, an examination of the impact upon mainstream publications
would be a logical next step in this research. Thirdly, Donald Lewis Shaw
calculated that, between 1820 and 1820, only two percent of the content of
general daily and non-daily newspapers was devoted to issues about slavery,
while just two percent discussed sectional differences: "At the Crossroads:
Change and Continuity in American Press News 1820-1860," Journalism History
8, no. 2:40.
 Gerald J. Baldasty, "The Washington D.C. Political Press in the Age of
Jackson," Journalism History 10, nos. 3-4 (Autumn-Winter 1983): 50-71.
 David Paul Nord, "Tocqueville, Garrison and the Perfection of
Journalism," Journalism History 13, no. 2 (summer 1986): 56-63.
 Bill Kovarik, "'To Avoid the Coming Storm': Hezekiah Nile's Weekly
Register as a Voice of North-South Moderation, 1811-1836," American
Journalism IX, nos. 3-4:20.
 Ibid., 41.
 Gerald J. Baldasty, "The Boston Press and Politics in Jacksonian
America," Journalism History 7, nos. 3-4 (Autumn-Winter 1980): 104-108,
citing Charles G. Greene, ed., Boston Statesman, June 23, 1832.
 William W. Freehling, Prelude to Civil War: The Nullification
Controversy in South Carolina, 1816-1836, (New York City: Harper & Row,
 Seabrook, in Freehling, Nullification, 16.
 Turnbull, in Freehling, Nullification, 41.
 Turnbull, in Freehling, Nullification, 41-2.
 Turnbull, in Freehling, Nullification, 42.
 Clement Eaton, "Censorship of the Southern Mails," The American
Historical Review 40, no. 2 (January 1943):266-280.
 Ibid., 266. See also Clement Eaton, The Freedom of-Thought in the
Old South, Revised and Enlarged Edition, (Durham, N.C.: Duke University
Press, 1964, esp. 196-21.
 Michael Schudson, The Good Citizen: A History of American Civic Life
(Cambridge, MA: Harvard University Press, 1999), 94.
 Ibid., 98-104.
 Ibid., 101, citing Alexis de Tocqueville, Democracy in America, tr.
George Lawrence (Garden City, N.Y.: Doubleday Anchor, 1969), 194.
 Ibid., 105-9.
 Martin E. Halstuk, "Policy of Secrecy Pattern of Deception: What
Federalist Leaders Thought About a Public Right to Know," Communication Law
& Policy 7: 51-76.
 Ibid., 74.
 Ibid., 54.
 David Rabban, Free Speech in its Forgotten Years (Cambridge, U.K.:
Cambridge University Press, 1997).
 Ibid, at 2. Yet, journalism and mass communication scholarship has
explored this era, though the possibilities have not been exhausted; e.g.,
Wm. David Sloan, "The Party Press and Freedom of the Press, 1798-1808,"
American Journalism IV, no. 2 (1987):82-96; Amy Reynolds, "William Lloyd
Garrison, Benjamin Lundy and Criminal Libel: The Abolitionists' Plea for
Press Freedom," Communication Law and Policy, 6:4 (Autumn 2001): 577-607;
John Lofton, The Press as Guardian of the First Amendment (Columbia:
University of South Carolina Press, 1980); Margaret A. Blanchard, "Beyond
Original Intent: Exploring a Broader Meaning of Freedom of Expression,"
Journalism History 14, no. 1 (Spring 1987): 2-7; Margaret A. Blanchard,
"Filling in the Void: Speech and Press in State Courts Prior to Gitlow," in
The First Amendment Reconsidered: New Perspectives on the Meaning of
Freedom of Speech and Press, ed. by Bill F. Chamberlin and Charlene J.
Brown, in Longman Series in Public Communication, ed. by Ray Eldon Hiebert
(New York: Longman, 1982); Timothy W. Gleason, The Watchdog Concept: The
Press and the Courts in Nineteenth-Century America (Ames: Iowa State
University Press, 1990); Timothy W. Gleason, "19th-Century Legal Practice
and Freedom of the Press: An Introduction to an Unfamiliar Terrain,"
Journalism History, 14, no. 1:26-33; Donna L. Dickerson, The Course of
Tolerance: Freedom of the Press in Nineteenth-Century America, in
Contributions to the Study of Mass Media and Communications, ed. by Bernard
K. Johnpoll (New York: Greenwood Press, 1990); and John Robert Finnegar
Jr., "Defamation, Politics, and the Social Process of Law in New York
State, 1776-1860" (Ph.D. dissertation: University of Minnesota,
1985). Also, in legal scholarship, see Clyde Augustus Duniway, The
Development of Freedom of the Press in Massachusetts (New York, 1906).
Philip Hamburger, "The Development of the Law of Seditious Libel and
Control of the Press," Stanford Law Review 37 (February 1985): 661-765;
Andrew J. King, "The Law of Slander in Early Antebellum America," The
American Journal of Legal History, 35 (January 1991): 1-43; and P. Harling,
"The Law of Libel and the Limits of Repression, 1790-1832, Historical
Journal, 44:1 (March 2001): 107-134. A seminal work for the concept of
this paper is Thomas Emerson, "Legal Foundations of the Right to Know,"
Washington University Law Quarterly, 1 (1976).
 Ibid, 149. See Ex Parte Jackson, 96 U.S. 727 (1877) and Rabban's
related discussion on page 137.
 Rabban, Forgotten Years, 8. Rabban's discussion of Zechariah Chaffee
Jr.'s treatise, Freedom of Speech (New York City: Harcourt, Bruce, and
Howe, 1920), is both critical and supportive, drawing lessons of what may
or may not have been correct about Chaffee's understanding of the history
of free speech.
 Ibid, at 5. See William Blackstone, Commentaries on the Laws of
England of Public Wrongs, adapted by Robert Malcolm Kerr (Boston, MA:
Beacon Press, 1962).
 Blackstone, Commentaries, 161.
 Ibid., 89-93.
 Rabban, Forgotten Years, 222 note 87.
 Ibid., at 130 note 3.
 Ibid. Also, Rabban criticizes Zechariah Chaffee, "Freedom of Speech
in War Time," Harvard Law Review 32: 952-3, where Chaffee said that the
"bad tendency" test was an issue at the turn of the eighteenth and
nineteenth centuries, and "that the most essential element of free speech
is the rejection of bad tendency as the test of a criminal utterance
 Schenck v. U.S., 249 U.S. 47 (1919).
 Two major issues related to the First Amendment resounded from the
first session of the Twenty-Fourth Congress a bill to have the Post
Office suppress the circulation of abolitionist newspapers, and a bill that
would have censured former President John Quincy Adams for introducing
petitions from slaves. The bill against Adams foreshadowed the infamous
Gag Rule of 1836 during the Twenty-fourth Congress' second session which
kept any petitions about slavery out of Congress, regardless of their
authors. The incident with Adams and the Gag Rule would make an
 Please note that while this paper quotes extensively from Eaton, et
al., great effort was made to find and document the pertinent primary
 Dorothy Ganfield Fowler, Unmailable: Congress and the Post Office
(Athens: University of Georgia Press, 1977): 26, citing Russel B. Nye,
Fettered Freedom: Civil Liberties and the Slavery Controversy, 1830-1860,
(East Lansing: Michigan State University Press, 1963):55. The American
Anti-Slavery Society apparently was the largest producer of these materials
at the time. Also, Nye's work especially chapter II contains an
excellent discussion of the topic of this paper.
 Gales and Seaton, eds., Register of Debates in Congress, 24 Cong., I
session, (Washington, 1836), Part I, Vol. 12:26. For a relevant discussion
of this entire incident, see also William Lee Miller, Arguing about Slavery
(New York City, Alfred A. Knopf, 1996).
 Eaton, "Censorship," 270 note 18, citing James D. Richardson, A
Compilation of the Messages and Papers of the Presidents, 1789-1897
(Washington, 1896), III, 175-76.
 Eaton, "Censorship," 270 note 17, citing a letter from President
Jackson to Amos Kendall, Aug. 9, 1835. John Spencer Bassett, ed.,
Correspondence of Andrew Jackson, V (Washington, 1931), 360-61.
 Eaton, "Censorship," 269 note 14, citing letters from Amos Kendall to
J.D. Townes of Petersburg, Va., Aug. 20, 1835, and to Samuel Gouverneur of
New York City, Aug. 22, 1835. Niles' Weekly Register, XLIX, 7-9 (Sept. 5,
1835)' and 269 note 15, Report of the Postmaster General, Dec. 1, 1835, to
the President of the United States. Blair and Rives, eds., The
Congressional Globe, 24 Cong., I sess., II-III (Washington, 1836),
Appendix, 8-9. For more about Kendall's position and this incident, see
Fowler, Unmailable, 26-36. Fowler, 26-27, notes how Charleston, S.C.,
postmaster Alfred Huger corresponded with New York City postmaster Samuel
L. Gouverneur and Kendall to remedy the situation without further violence.
 Eaton, "Censorship," 266 note 1, citing Gales and Seaton, eds.,
Register of Debates in Congress, 24 Cong., I session, XII (Washington,
1836), Part 4, Appendix, 73.
 Eaton, "Censorship," 270 note 19, citing Congressional Globe, 24
Cong., I sess., II-III, 165 (Feb. 4, 1836).
 See Eaton, Freedom-of-Thought, 149-151.
 "Bill from the Select Committee on the Circulation of Incendiary
Publications, In the Senate February 4, 1836," Clyde N. Wilson, ed., The
Papers of John C. Calhoun, Vol. XIII, 1835-1837 (Columbia: University of
South Carolina Press): 67-9, citing the Washington, D.C. United States'
Telegraph, February 9, 1836, p. 3, and variant in the New York, N.Y Morning
Courier and New-York Enquirer, February 8, 1836, p. 2.
 "Report from the Select Committee of the Circulation of Incendiary
Publications in the Senate of the United States," Papers, 57 (February 4,
 Eaton, Freedom-of-Thought, 198, citing Theodore D. Jervey, Robert Y.
Hayne and His Times (New York: 1909): 379-81.
 Debates, 29 (December 21, 1835).
 Ibid., 383 (February 4, 1836).
 Ibid., 1093 (April 6, 1836).
 Ibid., 1103 (April 7, 1836).
 Ibid., 1104.
 Ibid., 1104-5.
 Ibid., 1105. Davis claimed that the editor was not tried because the
governor of New York would not yield to requests for extradition.
 Ibid., citing the indictment. See also Eaton, "Censorship," 268n10,
citing Tuscaloosa (Ala.) Flag of the Union, Aug. 22, 1835. Also, this
further illustrates the point of Levy that seditious libel was a concern
for journalists long after the expiration of the Alien and Sedition Acts at
the end of the eighteenth century. Eaton in his work cites suppression in
several states. However, because of the Nullification Crisis among the
United States and South Carolina, this paper focuses more upon South
Carolina's attempts to suppress circulation of abolitionist literature.
 Ibid., 1106.
 Ibid., 1107.
 Ibid., 1108.
 Debates, Part 2, 1374 and 1675. These changes are not detailed in the
 Ibid., 1721.
 Ibid., 1722.
 N.P. Rogers Esq., "The Constitution," Quarterly Anti-Slavery
Magazine, Vol. 1-2, No. VI for January 1837, ed. by Elizur Wright Jr. (New
York: American Anti-Slavery Society, 1836 and 1837.) The due process
clause in the United States Constitution at the time was in the Fifth
Amendment of the Bill of Rights. After the Civil War, Congress and the
states passed the Fourteenth Amendment, which guaranteed due process to all
citizens, including the slaves. Later jurisprudence would incorporate the
Fourteenth Amendment's due process clause into much of the Bill of
Rights. The point here is that the discussion about the concept of such
due process occurred at least in the 1830s.
 Debates, Part 2, 1723.
 Ibid., 1726-7.
 Debates, Part 1, 1104.
 Ibid., 1723.
 See Leonard Levy, Freedom of Speech and Press in Early American
History: Legacy of Suppression, Torchbook ed. ( New York: Harper & Row,
1963): 213. Also, Levy later changed the title to Emergence of a Free
Press (New York: Oxford University Press, 1985). This paper cites from
them both, as appropriate. For more information about freedom of the press
and seditious libel, see also Levy, Origins of the Bill of Rights, (New
Haven, CT: Yale University Press, 1999); "Liberty and the First Amendment:
1790-1800," The American Historical Review, 68:1 (October 1962): 22-37
(retrieved from http://www.jstor.org); and "The Legacy Reexamined,"
Stanford Law Review, 37 (February 1985): 767-793. See also Philip
Hamburger, "The Development of the Law of Seditious Libel and Control of
the Press," Stanford Law Review 37 (February 1985): 661-765; Andrew J.
King, "The Law of Slander in Early Antebellum America," The American
Journal of Legal History, 35 (January 1991): 1-43; and P. Harling, "The Law
of Libel and the Limits of Repression, 1790-1832, Historical Journal, 44:1
(March 2001): 107-134. Also note that Sloan, "The Party Press," at pages
86-88 claims at that seditious libel was an issue until at least
1811. This paper argues that the concept extends much later than
that. Sloan also claims on page 82 "that even into the 1800s Americans
believed in a limited concept of freedom of expression, one that perhaps
was a little broader than what had prevailed in 1798 but certainly not one
that can be confused with libertarianism."
 Levy, Emergence of a Free Press, 8.
 Freehling, Nullification, 48-9.
 Because of the paucity of debate in the House, this author chose to
focus upon discussing the virulent debate in the Senate.
 Eaton, "Censorship," 272 note 29, citing Thomas Hart Benton,
Thirty-Years' View (New York, 1854-56), I, 587. Eaton went on to say that
bill was defeated 25-19. See 273 note 30, citing Congressional Globe, 24
Cong., I sess., II-III, 539 (June 8, 1836).
 Quarterly Anti-Slavery Magazine, Vol. III, No. V, May 1837, Whole No.
 "From E[lizur] Wright Jr. 'Ed[itor] Quart[erly] Anti-S[lavery]
Magazine, New York, October 18, 1837," Papers, 625.
 Eaton, "Censorship," 267 note 4: "The magnitude of this propaganda
drive is shown by the fact that in a single year, May, 1836, to May, 1837,
the American Anti-Slavery Society alone published 9,000 copies of The
Anti-Slavery Magazine, 130,150 copies of The Slave's Friend, 103,000 copies
of The Anti-Slavery Record, 189,400 copies of Human Rights, 217,000 copies
of the Emancipator, as well as numerous bound volumes, tracts, pamphlets,
and prints. Not all of this material crossed the Mason and Dixon
line. Fourth Annual Report of the American Anti-Slavery Society, reprinted
in The Quarterly Anti-Slavery Magazine (New York, July, 1837), p. 348."
 The New-Yorker, January 14, 1837, cited by Daxton R. Stewart,
"Freedom's Vanguard: Thoughts on the Freedom of the Press by Journalist
Horace Greeley from the Revolution of the Penny Press to the Civil War,"
(Unpublished manuscript at University of Texas-Austin): 36-7 note
105. Also, Sloan, "Party Press," says, at 87: "Postmasters were political
appointees, and opposition editors frequently complained that the postal
service suppressed copies of their papers," citing papers like the National
Intelligencer in 1801 and a Maine paper in 1806.
 Chaffee, "War Time," 959-60.
 William Lloyd Garrison, "To the President of the Anti-Slavery
Convention to be held at Providence, Feb. 2, Brooklyn, CT," (January 30,
1836) in The Letters of William Lloyd Garrison, Vol. II: A House Dividing
Against Itself: 1836-1840, Louis Ruchames, ed., (Cambridge, MA: Belknap
Press of Harvard University Press, 1971): 31.