Crisis ceased. No legal case against it was pursued. The real test for The Crisis still lay ahead. Parliament exercised its authority to direct Attorney General Edward Thurlow to prosecute those responsible for it. That freed Thurlow from the need to seek a grand jury indictment, which he knew he was not likely to get in London anyway because any attempt to stifle the press would be unpopular with the public.
When the men behind The Crisis had claimed, in their very first issue, that freedom of the press was a bulwark of English liberty, they repeated a widely shared sentiment. “The liberty of the press is indeed essential to the nature of a free state,” wrote William Blackstone in his influential Commentaries on English law. Nonetheless, Blackstone’s notion of a free press differed from that of most printers and high court judges sided with him, not the printers. Printers believed that truth should be a mitigating factor in any defense; Blackstone limited press protection to freedom from prior restraint. As Blackstone explained it, “provocation, and not falsity” was the key issue. Any printer who published “what is improper, mischievous, or illegal” must accept “the consequence of his own temerity.” Any writing that demonstrated “a pernicious
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tendency” and threatened “good peace and order” ought to be held legally liable for any resulting public unrest, its instigators punished for any harm done; such could be “the only foundation of civil liberty,” Blackstone concluded.18
The use of prior restraint had ended by 1695, after Parliament allowed a licensing act that it first passed thirty-three years before to lapse. That 1662 act had expressed a concern that “heretical, schismatical, blasphemous, and treasonable books, pamphlets and papers” threatened the peace of the kingdom. Parliament therefore directed that no book be published without a proper royal license. It provided a second line of defense as well: no book concerning religion could be published without approval by the Archbishop of Canterbury; no book on the common law could be printed without first being reviewed by a lord chief justice.19 Those printers who published without a license from the crown faced the possibility of being tried for and convicted of seditious libel, which meant that in an extreme case they could receive the same sentence as those convicted of high treason: death.
In the years since the end of licensing, seditious libel had been gradually reduced from a capital crime to a relatively minor offense. Guilty verdicts would usually result in a judge’s sentence that involved jail time and possibly a fine rather than a long prison term or execution. Threat of prosecution for seditious libel nevertheless became the favored tool of government to combat its opponents in the press; after all, the stamp duties and advertising taxes imposed on printers increased costs but did
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not necessarily curtail criticism.20 Attorney General Thurlow and Solicitor General Alexander Wedderburn understood that an allegation of seditious libel against The Crisis or any other publication had to involve more than simple defamation of a public official. Prosecutors needed to prove malicious intent, with a further intention to incite public unrest. Convincing jurors that they had made their case would be their most difficult task, particularly since they were responding to a parliamentary directive rather than proceeding on the basis of a grand jury indictment. Moreover, there was increasing pressure for judges to allow jurors in libel trials to determine questions of law (whether a libel actually occurred) as well as matters of fact (whether the accused wrote or printed the text in question).21
Deciding not to risk overshooting the mark, Thurlow and Wedderburn made no mention of treason in their formal charge against The Crisis, despite the complaint by the Lords and the Commons that it had committed
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a “treasonable Libel.” And even though “Printed and published for the Authors, by T. W. Shaw” appeared on every issue of The Crisis, from the first through the last, Shaw was not prosecuted. Instead, another London printer, Samuel Axtell, was taken to court. It is indeed possible that more than one printer was involved and that the only witness the prosecution could muster agreed to testify against Axtell, with no mention of Shaw.22 The real reasons remain elusive. London printers had become adept at keeping their presses from prying eyes. Listing the place of publication could be a ruse or even an act of hiding in plain sight, with journeymen doing the actual work and master printers not in the shop. Experience taught prosecutors that going after any of them legally could prove to be more trouble than it was worth. Axtell, for his part, was tried in absentia in June 1775, Axtell apparently choosing not to attend his own trial. Found guilty of being a “wicked[,] seditious[,] malicious and ill-disposed person” who “unlawfully[,] wickedly[,]” and “maliciously” maligned both crown and Parliament, the Court of King’s Bench sentenced him to ninety days in jail.23
The Crisis continued to be published each week, trial regardless—as indeed had happened with other writers or printers charged with seditious libel over the past decade. Like them, the men funding The Crisis reaffirmed their commitment to a defense of English liberties. They repeated their warnings about how those liberties were in jeopardy, but they made no mention of Axtell’s trial in their weekly. Perhaps
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they foresaw that the days of book-burnings and prosecutions were ending, though English law did not formally abandon the charge of seditious libel until 2009. Interestingly enough, when Parliament that year finally discontinued seditious libel as the basis for a criminal prosecution, it tied itself to notions of press liberty and to deeper notions of freedom that The Crisis had relied on in its defense to the public over two centuries before.24
We now know slightly more than Attorney General Thurlow did about authorship of The Crisis, but only because three names appeared on essays published after Axtell’s prosecution: William Stewardson, Philip Thicknesse and, most intriguingly, Thomas Shaw, the printer who was identified at the end of every issue. Stewardson, apparently a Southwark sailmaker by trade, had his name attached to issue No. 67. The tone of this piece was not as harsh as many of the others that bracketed it. Stew-ardson, if he was indeed the author, condemned bad policies and foolish ministers, but he was not so caustic in his criticism of the king. This was most likely the same Stewardson who also took an excursion into pamphlet writing on his own.25
Philip Thicknesse, identified as the author of No. 30, was one of the more colorful characters of his age. Thicknesse comes down to us as
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a quarrelsome, eccentric gadfly who made friends and enemies with equal ease. As a youth he sought adventure abroad, first in Georgia, then in Jamaica. He bought a commission in the Royal Marines after returning to England, retired to Bath after a middling military career, and then moved to a cottage outside of town, still a contentious contrarian.26 An inheritance case that he lost on appeal to the House of Lords was the focus of issue No. 30, which stands as the great exception to an otherwise single-minded obsession with Britain, America, the empire, and a king failing to do his duty. Why, exactly, The Crisis took up Thicknesse’s cause remains a mystery, like so much else about the weekly and the people who started it and kept it going.27
Shaw signed his name as the author of one piece, and to part of a second, phrased as if he were responding to another author who had written for the weekly. Unlike Thicknesse, Shaw kept the focus on larger concerns—on the issues that The Crisis had made its raison d’être.28 That Shaw could affix his own name to the essay, roughly a month after Axtell’s conviction, suggests that he did not fear prosecution, even if his tone was as harsh and his condemnations as sweeping as anything printed in earlier numbers. In the second essay he reaffirmed his determination “to support FREEDOM of the
