This post was contributed by Charles Walton, from the University of Warwick. It is part of our Magical Source series, in which historians from Birmingham and Warwick discuss the sources that reshaped their thinking on a topic. The first entry, by Karen Harvey, was about Mary Toft’s Confessions.
Charles Walton on Thomas Paine’s Letter to George Danton
The story of free speech during the French Revolution, a recurrent theme in French Revolutionary studies, is often told like this: During the Ancien Régime, there was no such freedom. Publications were subject to censorship, and any expression deemed to have violated ‘religion, morality, the monarchy and the honour of individuals’ was subject to punishment. Authors and printers could find themselves imprisoned in the Bastille, and those accused of uttering seditious speech could have their tongues torn out by the public executioner.
The French Revolution, so the story goes, changed all this. The freedom of expression was promulgated in the Declaration of the Rights of Man and of the Citizen of 1789. A ‘paradise of freedom’, as one historian puts it, opened up, lasting until 1793, when radical Jacobins, after executing the king and plunging the nation into civil war, unleashed a ‘reign of terror’ that saw thousands guillotined for alleged for speech crimes. The fall of Robespierre in July of 1794, the story continues, ended this authoritarian phase, and the right to free expression was restored, though with periodic crack-downs in the unstable years leading up to Napoleon’s coup in 1799.
The narrative seems almost intuitive. It chimes with the liberal sensibilities of historians, who have tended to put both the Ancien and Jacobin regimes into the same ‘authoritarian’ bucket. The only protagonists in this account were early revolutionaries – those liberals who inaugurated civil liberties and political representation.
A discovery I made in the archives several years ago led me to question this narrative – and eventually overturn it. I came upon a manuscript letter of May 1793 by Thomas Paine, hero of the American Revolution and author Rights of Man (1791), to Georges Danton, a leading Jacobin and head of the Committee of Public Safety, which would soon enact ‘terror’ policies. Paine had fled Britain in 1792, where he faced charges of seditious libel. His allies in France engineered his election to the National Convention.
The advice Paine gave to Danton was astonishing. He urged Danton to crack down on ‘calumniators’ – those who spread lies and insults concerning revolutionary officials and events. ‘Calumny is a species of Treachery that ought to be punished as well as any other kind of treachery.’ He explained, ‘It is private vice productive of public evil because it is possible irritate men into disaffection by continual calumny who never intended to be disaffected.’ Even mere insults could be calumnious because of the danger they posed to political stability and national security. ‘The provinces did not send their deputies to Paris to be insulted and every insult shown to them is an insult to the provinces who elected and sent them.’ Paine perceived dangers in letting calumny go unpunished. The enemy (France was at war), hoping to profit from it, was gathered on the border, ready to invade.
How could Paine, a pioneer of human rights, see calumny as tantamount to treason? As it turned out, this is precisely how the revolutionary government would see it. The Law of Suspects of September 1793 targeted those ‘who, by their conduct, associations, comments, or writings have shown themselves partisans of tyranny or federalism and enemies of liberty’. The following year, the government criminalised the ‘calumniation of patriotism’.
Paine’s stance was not a matter of hypocrisy. He grounded his reasoning in principle. But this then raises the question: what did freedom of expression really mean at the time?
This led me back to 1789, when calls for freedom of the press were widely made. They appeared in the reform proposals – the cahiers de doléances – drafted across France in the lead-up to the Meeting of the Estates General. Demands for press freedom figured in roughly 85% of these cahiers. Yet, the demand was almost always accompanied by the qualification that statements against ‘religion, morality, the monarchy and individual honour’ were to be punished. These categories were precisely those found in Ancien Régime press laws – the very laws that historians cite as evidence for the absence of press freedom before 1789.
What early revolutionaries were calling for, in short, was the abolition of pre-publication censorship – that is, the requirement to submit a manuscript for approval before publication. Accountability for injurious statements after the fact was another matter. Some cahiers reasoned that censorship could be safely abolished precisely because writers would be held responsible for seditious or outrageous content. Greater freedom came with greater responsibility. The Declaration of Rights itself stipulated that laws could limit free speech in order to combat ‘abuses of this freedom’. And early revolutionaries had no qualms in rebranding the old crime of lèse-majesté (injurious speech against the crown) as lèse-nation, over which high courts were given jurisdiction between 1789 and 1792 – the supposed ‘liberal phase’ of the French Revolution.
The expectation that calumniators would be punished, however, was not met. Laws defining calumny were not passed until 1791, but even then, the courts failed to treat such cases due to institutional breakdown. There was unlimited free speech, but this was a problem, not a happy state of affairs. In the absence of limits, calumny to proliferated, envenoming politics and polarising the nation. The Terror phase of the Revolution, when nearly one-third of executions were for speech crimes, represents the moment when this political pressure-cooker exploded and vengeance for calumnious attacks became judicialised. The excesses of the Terror’s repression of speech owed to the grievances and frustration that had built up over the Revolution’s early years.
So instead of blaming ‘illiberal’ Jacobins for these excesses, perhaps we should locate the source of these excesses in the beliefs and failures of revolutionary liberals. It was they – people like Paine – who believed in ex post facto punishment for certain kinds of speech. It was also these early revolutionaries who failed to define, then enforce, legal limits. The story of free speech during the French Revolution is not about supporters and opponents. It is about the problem of limits – the difficulties in setting them and the risks of failing to do so.
 Hugh Gough, The Newspaper Press in the French Revolution (Chicago: The Dorsey Press, 1988), p. 45.
 Letter by Thomas Paine to Georges Danton, 3 May 1793. In Archives nationales de France, AF II, carton 45, coll. 348, doc. 44.
 The Law of Suspects was passed on 17 September 1793. An English translation can be found at https://worldhistorycommons.org/law-suspects#doc_transcription (accessed 13 May 2022). The Law of 22 Prairial (10 June 1794), which targeted those who ‘calumniate patriotism’, can be found at https://alphahistory.com/frenchrevolution/law-of-22-prairial-1794/.
 See Chapter 3 of my Policing Public Opinion in the French Revolution: The Culture of Calumny and the Problem of Free Speech (New York: Oxford University Press, 2009).
 For a statistical breakdown of the victims of the Terror, see Donald Greer, The Incidence of the Terror during the French Revolution: A statistical interpretation (Cambridge, Mass.: Harvard University Press, 1935).
 There is a long historiographical tradition of seeing Jacobins as illiberal and authoritarian, which stretches back to the Revolution itself. In the mid nineteenth century, Alexis de Tocqueville provided an influential version of this interpretation (The Old Régime and the French Revolution, trans. Stuart Gilbert (Garden City: NY, 1955). More recently, it has been developed by François Furet, Interpreting the French Revolution, trans. Elborg Forster (Cambridge: Cambridge University Press, 1981).