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The Complete Bill of Rights - The Drafts, Debates, Sources, and Origins, 2nd Edition by Cogan, Neil H (13th August 2015)

Ch.2 Amendment I: Free Speech and Free Press Clauses

From: The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (2nd Edition)

Neil H. Cogan

(p. 147) Chapter 2  Amendment I

Free Speech and Free Press Clauses

2.1  Texts

2.1.1  Drafts in First Congress

2.1.1.1  Proposal by Madison in House, June 8, 1789

2.1.1.1.a 

Fourthly. That in article 1st, section 9, between clauses 3 and 4 [of the Constitution], be inserted these clauses, to wit, …

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.

Congressional Register, June 8, 1789, vol. 1, p. 427.

2.1.1.1.b 

Fourthly. That in article 1st, section 9, between clauses 3 and 4 [of the Constitution], be inserted these clauses, to wit: …

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.

Daily Advertiser, June 12, 1789, p. 2, col. 1.

2.1.1.1.c 

Fourth. That in article 1st, section 9, between clauses 3 and 4 [of the Constitution], be inserted these clauses, to wit: …

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.

New-York Daily Gazette, June 13, 1789, p. 574, col. 3.

(p. 148) 2.1.1.2  Proposal by Sherman to House Committee of Eleven, July 21–28, 1789

[Amendment] 2 The people have certain natural rights which are retained by them when they enter into society, Such are the rights of conscience in matters of religion; of acquiring property, and of pursuing happiness & safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably Assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the government of the united States.

[Amendment] 8 Congress shall not have power to grant any monopoly or exclusive advantages of Commerce to any person or Company; nor to restrain the liberty of the Press.

Madison Papers, DLC.

2.1.1.3  House Committee of Eleven Report, July 28, 1789

Art. I, Sec. 9—Between Par. 2 and 3 insert, …

“The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.”

Broadside Collection, DLC.

2.1.1.4  House Consideration, August 15, 1789

2.1.1.4.a 

The next clause of the 4th proposition was taken into consideration, and was as follows: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances shall not be infringed.”

Congressional Register, August 15, 1789, vol. 2, p. 197 (“agreed to”).

2.1.1.4.b 

Fifth amendment — “The freedom of speech, and of the press, and of the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.”

Daily Advertiser, August 17, 1789, p. 2, col. 1 (“carried in the affirmative.”).

2.1.1.4.c 

Fifth amendment — “The freedom of speech, and of the press, and of the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.”

New-York Daily Gazette, August 18, 1789, p. 798, col. 3 (“carried in the affirmative”).

2.1.1.4.d 

Fifth Amendment. The freedom of speech, and of the press, and of the rights of the people peaceably to assemble and consult for their common good, and to apply to government for the redress of grievances shall not be infringed.

Gazette of the U.S., August 19, 1789, p. 147, col. 1 (“agreed to”).

(p. 149) 2.1.1.5  Further House Consideration, August 21, 1789

Fourth. The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.

HJ, p. 107 (“read and debated … agreed to by the House, … two-thirds of the members present concurring”).1

2.1.1.6  House Resolution, August 24, 1789

ARTICLE the FOURTH.

The Freedom of Speech, and of the Press, and the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall not be infringed.

House Pamphlet, RG 46, DNA.

2.1.1.7  Senate Consideration, August 25, 1789

2.1.1.7.a 

The Resolve of the House of Representatives of the 24th of August, upon certain “Articles to be proposed to the Legislatures of the several States as Amendments to the Constitution of the United States” was read as followeth:

Article the fourth

The freedom of speech, and of the press, and the right of the People peaceably to assemble and consult for their common good and to apply to the Government for redress of grievances shall not be infringed.

Rough SJ, p. 215.

2.1.1.7.b 

The Resolve of the House of Representatives of the 24th of August, was read as followeth:

Article the Fourth.

The freedom of speech, and of the press, and the right of the people peaceably to assemble, and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.

Smooth SJ, p. 194.

2.1.1.7.c 

The Resolve of the House of Representatives of the 24th of August, was read as followeth:

(p. 150)

ARTICLE the FOURTH.

“The freedom of speech, and of the press, and the right of the people peaceably to assemble, and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.

Printed SJ, p. 104.

2.1.1.8  Further Senate Consideration, September 3, 1789

2.1.1.8.a 

On Motion to insert these words after “Press,” “In as ample a manner as hath at any time been secured by the common law.”

Rough SJ, p. 246 (“It passed in the negative.”).

2.1.1.8.b 

On motion, To insert these words after “Press,” — “In as ample a manner as hath at any time been secured by the common law” —

Smooth SJ, p. 219 (“It passed in the Negative.”).

2.1.1.8.c 

On motion, To insert these words after “Press,” — “In as ample a manner as hath at any time been secured by the common law” —

Printed SJ, p. 117 (“It passed in the Negative.”).

2.1.1.9  Further Senate Consideration, September 4, 1789

2.1.1.9.a 

On Motion to adopt the fourth Article proposed by the House of Representatives to read as followeth,

“That Congress shall make no law, abridging the freedom of speech or of the press, or the right of the People peaceably to assemble and consult for their common good, and to petition the Government for a redress of grievances,”

Rough SJ, September 4, 1789, p. 247 (“It passed in the affirmative.”).

2.1.1.9.b 

On motion, To adopt the fourth Article proposed by the Resolve of the House of Representatives, to read as followeth,

“That Congress shall make no law, abridging the freedom of Speech, or of the Press, or the right of the People peaceably to assemble and consult for their common good, and to petition the Government for a redress of grievances,”

Smooth SJ, September 4, 1789, pp. 220–21 (“It passed in the Affirmative.”).

2.1.1.9.c 

On motion, To adopt the fourth Article proposed by the Resolve of the House of Representatives, to read as followeth,

“That Congress shall make no law, abridging the freedom of Speech, or of the Press, or the right of the People peaceably to assemble and consult for their common good, and to petition the Government for a redress of grievances,”

Printed SJ, September 4, 1789, p. 118 (“ It passed in the Affirmative.”).

2.1.1.9.d 

Resolved tothat the Senate do concur with the House of Representatives in

Article fourth.

To read as follows, to wit:

“That Congress shall make no law, abridging the freedom of Speech or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances,”

Senate MS, RG 46, p. 2.

(p. 151) 2.1.1.10  Further Senate Consideration, September 9, 1789

2.1.1.10.a 

And on Motion to amend article the third to read as follows:

“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 the People peaceably to assemble, and petition to the government for the redress of grievances.”

On motion, To strike out the fourth article,

Rough SJ, p. 274 (As to each motion, “It passed in the affirmative.”).

2.1.1.10.b 

On motion, To amend article the third, to read as follows:

“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 the people peaceably to assemble, and petition to the Government for the redress of grievances” —

On motion, To strike out the fourth article,

Smooth SJ, p. 243 (As to each motion, “It passed in the Affirmative.”).

2.1.1.10.c 

On motion, To amend Article the third, to read as follows:

“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 the people peaceably to assemble, and petition to the Government for the redress of grievances” —

On motion, To strike out the fourth Article,

Printed SJ, p. 129 (As to each motion, “It passed in the Affirmative.”).

2.1.1.10.d 

On the question to concur with the House of Representatives on their resolution of the 24th of Augt. proposing amendments to the constitution of the United States, with the following amendments viz:

To erase from the 3d. Article the word “Religion” & insert —Articles of faith or a mode of Worship. —

And to erase from the same article the words “thereof, nor shall the rights of Conscience be infringed” & insert — of Religion, or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, & to petition to the government for a redress of grievances

To erase the 4th. article, & the words “Article the fourth.

Ellsworth MS, pp. 1–2, RG 46, DNA.

2.1.1.11  Senate Resolution, September 9, 1789

ARTICLE the THIRD.

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 of the press, or the (p. 152) right of the people peaceably to assemble, and to petition to the government for a redress of grievances.

Senate Pamphlet, RG 46, DNA.

2.1.1.12  Further House Consideration, September 21, 1789

Resolved, That this House doth agree to the second, fourth, eighth, twelfth, thirteenth, sixteenth, eighteenth, nineteenth, twenty-fifth, and twenty-sixth amendments, and doth disagree to the first, third, fifth, sixth, seventh, ninth, tenth, eleventh, fourteenth, fifteenth, seventeenth, twentieth, twenty-first, twenty-second, twenty-third, and twenty-fourth amendments proposed by the Senate to the said articles, two thirds of the members present concurring on each vote.

Resolved, That a conference be desired with the Senate on the subject matter of the amendments disagreed to, and that Mr. Madison, Mr. Sherman, and Mr. Vining, be appointed managers at the same on the part of this House.

HJ, p. 146.

2.1.1.13  Further Senate Consideration, September 21, 1789

2.1.1.13.a 

A message from the House of Representatives —

Mr. Beckley, their Clerk, brought up a Resolve of the House of this date, to agree to the 2nd, 4th, 8th, 12th, 13th, 16th, 18th, 19th, 25th, and 26th Amendments proposed by the Senate, “To articles of Amendment to be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States,” and to disagree to the 1st, 3d, 5th, 6th, 7th, 9th, 10th, 11th, 14th, 15th, 17th, 20th, 21st, 22d, 23d, and 24th amendments: Two thirds of the members present concurring on each vote: And “That a conference be desired with the Senate on the subject matter of the amendments disagreed to,” and that Mr. Madison, Mr. Sherman, and Mr. Vining, be appointed managers of the same, on the part of the House of Representatives —

And he withdrew.

Smooth SJ, pp. 265–66.

2.1.1.13.b 

A message from the House of Representatives —

Mr. Beckley, their Clerk, brought up a Resolve of the House of this date, to agree to the 2d, 4th, 8th, 12th, 13th, 16th, 18th, 19th, 25th, and 26th Amendments proposed by the Senate, “To Articles of Amendment to be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States,” and to disagree to the 1st, 3d, 5th, 6th, 7th, 9th, 10th, 11th, 14th, 15th, 17th, 20th, 21st, 22d, 23d, and 24th Amendments: Two thirds of the members present concurring on each vote: And “That a conference be desired with the Senate on the subject matter of the Amendments disagreed to,” and that Mr. Madison, Mr. Sherman, and Mr. Vining, be appointed managers of the same, on the part of the House of Representatives —

And he withdrew.

Printed SJ, pp. 141–42.

2.1.1.14  Further Senate Consideration, September 21, 1789

2.1.1.14.a 

The Senate proceeded to consider the Message of the House of Representatives disagreeing to the Amendments made by the Senate “To Articles to be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States” And

Resolved, That the Senate do recede from their third Amendment, and do insist on all the others.(p. 153)

Resolved, That the Senate do concur with the House of Representatives in a conference on the subject matter of disagreement on the said Articles of Amendment, and that Mr. Ellsworth, Mr. Carroll and Mr. Paterson be managers of the conference on the part of the Senate.

Smooth SJ, p. 267.

2.1.1.14.b 

The Senate proceeded to consider the message of the House of Representatives disagreeing to the Amendments made by the Senate “To Articles to be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States” — And

Resolved, That the Senate do recede from their third Amendment, and do insist on all the others.

Resolved, That the Senate do concur with the House of Representatives in a conference on the subject matter of disagreement on the said Articles of Amendment, and that Mr. Ellsworth, Mr. Carroll, and Mr. Paterson be managers of the conference on the part of the Senate.

Printed SJ, p. 142.

2.1.1.15  Conference Committee Report, September 24, 1789

[T]hat it will be proper for the House of Representatives to agree to the said Amendments proposed by the Senate, with an Amendment to their fifth Amendment, so that the third Article shall read as follows: “Congress shall make no Law respecting an establishment of Religion, or prohibiting the free exercise thereof; or abridging the freedom of Speech, or of the Press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances;” And with an Amendment to the fourteenth Amendment proposed by the Senate, so that the eighth Article, as numbered in the Amendments proposed by the Senate, shall read as follows “In all criminal prosecutions, the accused shall enjoy the right to a speedy & publick trial by an impartial jury of the district wherein the crime shall have been committed, as the district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, and to have compulsory process for obtaining witnesses against him in his favour, & ⋀ to have the assistance of counsel for his defence.”

Conference MS, RG 46, DNA (Ellsworth’s handwriting).

2.1.1.16  House Consideration of Conference Committee Report, September 24 [25], 1789

Resolved, That this House doth recede from their disagreement to the first, third, fifth, sixth, seventh, ninth, tenth, eleventh, fourteenth, fifteenth, seventeenth, twentieth, twenty-first, twenty-second, twenty-third, and twenty-fourth amendments, insisted on by the Senate: Provided, That the two articles which by the amendments of the Senate are now proposed to be inserted as the third and eighth articles, shall be amended to read as followeth;

Article the third. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Article the eighth. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to (p. 154) be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of council for his defence.”

HJ, p. 152 (“On the question, that the House do agree to the alteration and amendment of the eighth article, in manner aforesaid, It was resolved in the affirmative. Ayes 37 Noes 14”).

2.1.1.17  Senate Consideration of Conference Committee Report, September 24, 1789

2.1.1.17.a 

Mr. Ellsworth, on behalf of the managers of the conference on “articles to be proposed to the several States as Amendments to the Constitution of the United States,” reported as follows:

That it will be proper for the House of Representatives to agree to the said amendments proposed by the Senate, with an Amendment to their fifth Amendment, so that the third Article shall read as follows: “Congress shall make no law respecting an establishment of Religion, or prohibiting the free exercise thereof; or abridging the freedom of Speech, or of the Press; or the right of the people peaceably to assemble and petition the Government for a redress of Grievances;” And with an Amendment to the fourteenth Amendment proposed by the Senate, so that the eighth article, as numbered in the Amendments proposed by the Senate, shall read as follows; “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial Jury of the district wherein the Crime shall have been committed, as the district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, and to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for defence.”

Smooth SJ, pp. 272–73.

2.1.1.17.b 

Mr. Ellsworth, on behalf of the managers of the conference on “Articles to be proposed to the several States as Amendments to the Constitution of the United States,” reported as follows:

That it will be proper for the House of Representatives to agree to the said Amendments proposed by the Senate, with an Amendment to their fifth Amendment, so that the third Article shall read as follows: “Congress shall make no Law respecting an establishment of Religion, or prohibiting the free exercise thereof; or abridging the freedom of Speech, or of the Press; or the right of the People peaceably to assemble and petition the Government for a redress of Grievances;” And with an Amendment to the fourteenth Amendment proposed by the Senate, so that the eighth Article, as numbered in the Amendments proposed by the Senate, shall read as follows; “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial Jury of the District wherein the Crime shall have been committed, as the District shall have been previously ascertained by Law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, and to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for defence.”

Printed SJ, p. 145.

(p. 155) 2.1.1.18  Further Senate Consideration of Conference Committee Report, September 24, 1789

2.1.1.18.a 

A Message from the House of Representatives —

Mr. Beckley, their Clerk, brought up the Amendments to the “Articles to be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States;” and informed the Senate, that the House of Representatives had receded from their disagreement to the 1st, 3d, 5th, 6th, 7th, 9th, 10th, 11th, 14th, 15th, 17th, 20th, 21st, 22d, 23d, and 24th Amendments, insisted on by the Senate: Provided that the “Two Articles, which by the Amendments of the Senate are now proposed to be inserted as the third and eighth Articles,” shall be amended to read as followeth:

Article the Third. “Congress shall make no Law respecting an establishment of Religion, or prohibiting the free exercise thereof; or abridging the freedom of Speech, or of the Press; or the right of the people peaceably to assemble, and petition the Government for a redress of Grievances.”

Article the Eighth. “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial Jury of the State and District, wherein the crime shall have been committed, which District shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, and to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for his defence.”

Smooth SJ, pp. 278–79.

2.1.1.18.b 

A Message from the House of Representatives —

Mr. Beckley, their Clerk, brought up the Amendments to the “Articles to be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States;” and informed the Senate, that the House of Representatives had receded from their disagreement to the 1st, 3d, 5th, 6th, 7th, 9th, 10th, 11th, 14th, 15th, 17th, 20th, 21st, 22d, 23d, and 24th Amendments, insisted on by the Senate: Provided that the “Two Articles, which by the Amendments of the Senate are now proposed to be inserted as the third and eighth Articles,” shall be amended to read as followeth:

Article the Third. “Congress shall make no Law respecting an establishment of Religion, or prohibiting the free exercise thereof; or abridging the freedom of Speech, or of the Press; or the right of the People peaceably to assemble, and petition the Government for a redress of Grievances.”

Article the Eighth. “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial Jury of the State and District, wherein the crime shall have been committed, which District shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, and to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for his defence.”

Printed SJ, p.148.

2.1.1.19  Further Senate Consideration of Conference Committee Report, September 25, 1789

2.1.1.19.a 

The Senate proceeded to consider the Message from the House of Representatives of the 24th, with Amendments to the Amendments of the Senate, to “Articles to be proposed (p. 156) to the Legislatures of the several States, as Amendments to the Constitution of the United States” — And

Resolved, That the Senate do concur in the Amendments proposed by the House of Representatives, to the Amendments of the Senate.

Smooth SJ, p. 283.

2.1.1.19.b 

The Senate proceeded to consider the Message from the House of Representatives of the 24th, with Amendments to the Amendments of the Senate, to “Articles to be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States” — And

Resolved, That the Senate do concur in the Amendments proposed by the House of Representatives, to the Amendments of the Senate.

Printed SJ, pp. 150–51.

2.1.1.20  Agreed Resolution, September 25, 1789

2.1.1.20.a  Article the Third

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Smooth SJ, Appendix, p. 292.

2.1.1.20.b  ARTICLE the THIRD.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Printed SJ, Appendix, p. 163.

2.1.1.21  Enrolled Resolution, September 28, 1789

Article The Third… Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Enrolled Resolutions, RG 11, DNA.

2.1.1.22  Printed Versions

2.1.1.22.a 

Art. I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Statutes at Large, vol. 1, p. 21.

2.1.1.22.b 

Art. III. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Statutes at Large, vol. 1, p. 97.

(p. 157) 2.1.2  Proposals from the State Conventions

2.1.2.1  Maryland Minority, April 26, 1788

12. That the freedom of the press be inviolably preserved.

Maryland Gazette, May 1, 1788 (committee majority).

2.1.2.2  Massachusetts Minority, February 6, 1788

[T]hat the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions.

Massachusetts Convention, pp. 86–87.

2.1.2.3  New York, July 26, 1788

That the people have a right peaceably to assemble together to consult for their common good, or to instruct their Representatives; and that every person has a right to Petition or apply to the Legislature for redress of Grievances. — That the Freedom of the Press ought not to be violated or restrained.

State Ratifications, RG 11, DNA.

2.1.2.4  North Carolina, August 1, 1788

16th. 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.

State Ratifications, RG 11, DNA.

2.1.2.5  Pennsylvania Minority, December 12, 1787

6. 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.

Pennsylvania Packet, December 18, 1787.

2.1.2.6  Rhode Island, May 29, 1790

16th. 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.

State Ratifications, RG 11, DNA.

(p. 158) 2.1.2.7  Virginia, June 27, 1788

Sixteenth, 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.

State Ratifications, RG 11, DNA.

2.1.3  State Constitutions and Laws; Colonial Charters and Laws

2.1.3.1  Delaware: Declaration of Rights, 1776

Sect. 23. That the liberty of the press ought to be inviolably preserved.

Delaware Laws, vol. 1, App., p. 81.

2.1.3.2  Georgia

2.1.3.2.a  Constitution, 1777

LXI. Freedom of the press, and trial by jury, to remain inviolate forever.

Georgia Laws, p. 16.

2.1.3.2.b  Constitution, 1789

article iv.

Sect. 3. Freedom of the press, and trial by jury, shall remain inviolate.

Georgia Laws, p. 29.

2.1.3.3  Maryland: Declaration of Rights, 1776

38. That the liberty of the press ought to be inviolably preserved.

Maryland Laws, November 3, 1776.

2.1.3.4  Massachusetts

2.1.3.4.a  Body of Liberties, 1641

[12] Every man whether Inhabitant or fforreiner, free or not free shall have libertie to come to any publique Court, Councel, or Towne meeting, and either by speech or writeing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner.

Massachusetts Colonial Laws, p. 35.

2.1.3.4.b  Constitution, 1780

part i

article

(p. 159)

XVI. The Liberty of the Press is essential to the security of freedom in a State, it ought not, therefore, to be restrained in this Commonwealth.

Massachusetts Perpetual Laws, p. 7.

2.1.3.5  New Hampshire: Constitution, 1783

[Part I, Article] XXII. The Liberty of the press is essential to the security of freedom in a State; it ought, therefore, to be inviolably preserved.

XXX. The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any action, complaint, or prosecution, in any other court or place whatsoever.

New Hampshire Laws, pp. 26, 27.

2.1.3.6  North Carolina

2.1.3.6.a  Fundamental Constitutions of Carolina, 1669

80th. Since multiplicity of comments, as well as of laws, have great inconveniences, and serve only to obscure and perplex; all manner of comments or expositions, or [sic; on] any part of these Fundamental Constitutions, or on any part of the common or statute laws of Carolina are absolutely prohibited.

North Carolina State Records, p. 146.

2.1.3.6.b  Declaration of Rights, 1776

Sect. XV. That the Freedom of the Press is one of the great Bulwarks of Liberty, and therefore ought never to be restrained.

North Carolina Laws, p. 275.

2.1.3.7  Pennsylvania

2.1.3.7.a  Constitution, 1776

chapter i.

A DECLARATION of the RIGHTS of the Inhabitants of the State of Pennsylvania.

XII[.] 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.

Pennsylvania Acts, M’Kean, p. x.

2.1.3.7.b  Constitution, 1790

article ix.

Sect. VII. That the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government: And no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication (p. 160) of papers, investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence: And, in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.

Pennsylvania Acts, Dallas, p. xxxiv.

2.1.3.8  South Carolina

2.1.3.8.a  Constitution, 1778

XLIII. That the Liberty of the Press be inviolably preserved.

South Carolina Constitution, p. 15.

2.1.3.8.b  Constitution, 1790

article ix.

Section 6. The trial by jury as heretofore used in this state, and the liberty of the press, shall be for ever inviolably preserved.

South Carolina Laws, App., p. 42.

2.1.3.9  Vermont: Constitution, 1777

chapter i.

14. 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.

Vermont Acts, p. 4.

2.1.3.10  Virginia: Declaration of Rights, 1776

XII. THAT the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotick governments.

Virginia Acts, p. 33.

2.1.4  Other Texts

2.1.4.1  English Bill of Rights, 1689

… That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.

1 Will. & Mar. sess. 2, c. 2.

2.1.4.2  Richard Henry Lee to Edmund Randolph, Proposed Amendments, October 16, 1787

… That the freedom of the press shall be secured. …

Virginia Gazette, December 22, 1787.

(p. 161) 2.2  Discussion of Drafts and Proposals

2.2.1  The First Congress

2.2.1.1  June 8, 17892

2.2.1.1.a  Mr. Jackson

The gentleman endeavours to secure the liberty of the press; pray how is this in danger. There is no power given to congress to regulate this subject as they can commerce, or peace, or war. Has any transactions taken place to make us suppose such an amendment necessary? An honorable gentleman, a member of this house, has been attacked in the public news-papers, on account of sentiments delivered on this floor. Have congress taken any notice of it? Have they ordered the writer before them, even for a breach of privilege, altho’ the constitution provides that a member shall not be questioned in any place for any speech or debate in the house? No, these things are suffered to public view, and held up to the inspection of the world. These are principles which will always prevail; I am not afraid, nor are other members I believe, our conduct should meet the severest scrutiny. Where then is the necessity of taking measures to secure what neither is nor can be in danger?

Congressional Register, June 8, 1789, vol. 1, pp. 437–38.

2.2.1.1.b 

The press, Mr. Jackson observed, is unboundedly free — a recent instance of which the House had witnessed in an attack upon one of its members — A bill of rights is a mere ignis fatuus, amusing by appearances, and leading often to dangerous conclusions. —

Gazette of the U.S., June 10, 1789, p. 67, col. 2.

2.2.1.2  August 15, 17893

2.2.2  State Conventions

2.2.2.1  North Carolina, July 30, 1788

Mr. SPAIGHT. …

… The gentleman advises such amendments as would satisfy him, and proposes a mode of amending before ratifying. If we do not adopt first, we are no more a part of the Union than any foreign power. It will be also throwing away the influence of our state to propose amendments as the condition of our ratification. If we adopt first, our representatives will have a proportionable weight in bringing about amendments, which will not be the case if we do not adopt. It is adopted by ten states already. The question, then, is, not whether the Constitution be good, but whether we will or will not confederate with the other states. The gentleman supposes that the liberty of the press is not secured. The Constitution does not take it away. It (p. 162) says nothing of it, and can do nothing to injure it. But it is secured by the constitution of every state in the Union in the most ample manner.

He objects to giving the government exclusive legislation in a district not exceeding ten miles square, although the previous consent and cession of the state within which it may be, is required. Is it to be supposed that the representatives of the people will make regulations therein dangerous to liberty? Is there the least color or pretext for saying that the militia will be carried and kept there for life? Where is there any power to do this? The power of calling forth the militia is given for the common defence; and can we suppose that our own representatives, chosen for so short a period, will dare to pervert a power, given for the general protection, to an absolute oppression? But the gentleman has gone farther, and says, that any man who will complain of their oppressions, or write against their usurpation, may be deemed a traitor, and tried as such in the ten miles square, without a jury. What an astonishing misrepresentation! Why did not the gentleman look at the Constitution, and see their powers? Treason is there defined. It says, expressly, that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. Complaining, therefore, or writing, cannot be treason. [Here Mr. Lenoir rose, and said he meant misprision of treason.] The same reasons hold against that too. The liberty of the press being secured, creates an additional security.

Elliot, vol. 4, pp. 208–09.

2.2.2.2  South Carolina, January 18, 1788

Hon. JAMES LINCOLN. …

He would be glad to know why, in this Constitution, there is a total silence with regard to the liberty of the press. Was it forgotten? Impossible! Then it must have been purposely omitted; and with what design, good or bad, he left the world to judge. The liberty of the press was the tyrant’s scourge — it was the true friend and firmest supporter of civil liberty; therefore why pass it by in silence? He perceived that not till almost the very end of the Constitution was there any provision made for the nature or form of government we were to live under: he contended it should have been the very first article; it should have been, as it were, the groundwork or foundation on which it should have been built. But how is it? At the very end of the Constitution, there is a clause which says,—“The Congress of the United States shall guaranty to each state a republican form of government.” But pray, who are the United States? — A President and four or five senators? Pray, sir, what security have we for a republican form of government, when it depends on the mere will and pleasure of a few men, who, with an army, navy, and rich treasury at their back, may change and alter it as they please? It may be said they will be sworn. Sir, the king of Great Britain, at his coronation, swore to govern his subjects with justice and mercy. We were then his subjects, and continued so for a long time after. He would be glad to know how he observed his oath. If, then, the king of Great Britain forswore himself, what security have we that a future President and four or five senators — men like himself — will think more solemnly of so sacred an obligation than he did?

Why was not this Constitution ushered in with the bill of rights? Are the people to have no rights? Perhaps this same President and Senate would, by and by, declare them. He much feared they would. He concluded by returning his hearty thanks to the gentleman who had so nobly opposed this Constitution: it was supporting the cause of the people; and if ever any one deserved the title of man of the people, he, on this occasion, most certainly did.(p. 163)

Gen. CHARLES COTESWORTH PINCKNEY answered Mr. Lincoln on his objections. … With regard to the liberty of the press, the discussion of that matter was not forgotten by the members of the Convention. It was fully debated, and the impropriety of saying any thing about it in the Constitution clearly evinced. The general government has no powers but what are expressly granted to it; it therefore has no power to take away the liberty of the press. That invaluable blessing, which deserves all the encomiums the gentleman has justly bestowed upon it, is secured by all our state constitutions; and to have mentioned it in our general Constitution would perhaps furnish an argument, hereafter, that the general government had a right to exercise powers not expressly delegated to it. For the same reason, we had no bill of rights inserted in our Constitution; for, as we might perhaps have omitted the enumeration of some of our rights, it might hereafter be said we had delegated to the general government a power to take away such of our rights as we had not enumerated; but by delegating express powers, we certainly reserve to ourselves every power and right not mentioned in the Constitution.

Elliot, vol. 4, pp. 314–16.

2.2.2.3  Pennsylvania, December 1, 1787

Mr. WILSON. …

… In answer to the gentlemen from Fayette, (Mr. Smilie,) on the subject of the press, I beg leave to make an observation. It is very true, sir, that this Constitution says nothing with regard to that subject, nor was it necessary; because it will be found that there is given to the general government no power whatsoever concerning it; and no law, in pursuance of the Constitution, can possibly be enacted to destroy that liberty.

I heard the honorable gentleman make this general assertion, that the Congress was certainly vested with power to make such a law; but I would be glad to know by what part of this Constitution such a power is given? Until that is done, I shall not enter into a minute investigation of the matter, but shall at present satisfy myself with giving an answer to a question that has been put. It has been asked, If a law should be made to punish libels, and the judges should proceed under that law, what chance would the printer have of an acquittal? And it has been said he would drop into a den of devouring monsters!

I presume it was not in the view of the honorable gentleman to say there is no such thing as a libel, or that the writers of such ought not to be punished. The idea of the liberty of the press is not carried so far as this in any country. What is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character, and property of the individual.

With regard to attacks upon the public, the mode of proceeding is by a prosecution. Now, if a libel is written, it must be within some one of the United States, or the district of Congress. With regard to that district, I hope it will take care to preserve this as well as the other rights of freemen; for, whatever district Congress may choose, the cession of it cannot be completed without the consent of its inhabitants. Now, sir, if this libel is to be tried, it must be tried where the offence was committed; for, under this Consititution, as declared in the 2d section of the 3d article, the trial must be held in the state; therefore, on this occasion, it must be tried where it was published, if the indictment is for publishing; and it must be tried likewise by a jury of that state. Now, I would ask, is the person (p. 164) prosecuted in a worse situation under the general government, even if it had the power to make laws on this subject, than he is at present under the state government? It is true, there is no particular regulation made, to have the jury come from the body of the county in which the offence was committed; but there are some states in which this mode of collecting juries is contrary to their established custom, and gentlemen ought to consider that this Constitution was not meant merely for Pennsylvania. In some states, the juries are not taken from a single county. In Virginia, the sheriff, I believe, is not confined even to the inhabitants of the state, but is at liberty to take any man he pleases, and put him on the jury. In Maryland, I think, a set of jurors serve for the whole western shore, and another for the eastern shore.

Elliot, vol. 2, pp. 449–50.

2.2.2.4  Virginia

2.2.2.4.a  June 14, 1788

Mr. HENRY. …

A bill of rights may be summed up in a few words. What do they tell us?—That our rights are reserved. Why not say so? Is it because it will consume too much paper? Gentlemen’s reasoning against a bill of rights does not satisfy me. Without saying which has the right side, it remains doubtful. A bill of rights is a favorite thing with the Virginians and the people of the other states likewise. It may be their prejudice, but the government ought to suit their geniuses; otherwise, its operation will be unhappy. A bill of rights, even if its necessity be doubtful, will exclude the possibility of dispute; and, with great submission, I think the best way is to have no dispute. In the present Constitution, they are restrained from issuing general warrants to search suspected places, or seize persons not named, without evidence of the commission of a fact, &c. There was certainly some celestial influence governing those who deliberated on that Constitution; for they have, with the most cautious and enlightened circumspection, guarded those indefeasible rights which ought ever to be held sacred! The officers of Congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure, every thing you eat, drink, and wear. They ought to be restrained within proper bounds. With respect to the freedom of the press, I need say nothing; for it is hoped that the gentlemen who shall compose Congress will take care to infringe as little as possible the rights of human nature. This will result from their integrity. They should, from prudence, abstain from violating the rights of their constituents. They are not, however, expressly restrained. But whether they will intermeddle with that palladium of our liberties or not, I leave you to determine.

Elliot, vol. 3, pp. 448–49.

2.2.2.4.b  June 15, 1788

Gov. RANDOLPH. …

Then, sir, the freedom of the press is said to be insecure. God forbid that I should give my voice against the freedom of the press. But I ask, (and with confidence that it cannot be answered,) Where is the page where it is restrained? If there had been any regulation about it, (p. 165) leaving it insecure, then there might have been reason for clamors. But this is not the case. If it be, I again ask for the particular clause which gives liberty to destroy the freedom of the press.

Elliot, vol. 3, p. 469.

2.2.2.4.c  June 24, 1788

Mr. DAWSON. …

That sacred palladium of liberty, the freedom of the press, (the influence of which is so great that it is the opinion of the ablest writers that no country can remain long in slavery where it is unrestrained,) has not been expressed; nor are the liberties of the people ascertained and protected by any declaration of rights; that inestimable privilege, (the most important which freemen can enjoy,) the trial by jury in all civil cases, has not been guarded by the system;—and while they have been inattentive to these all-important considerations, they have made provision for the introduction of standing armies in time of peace. These, sir, ever have been used as the grand machines to suppress the liberties of the people, and will ever awaken the jealousy of republicans, so long as liberty is dear, and tyranny odious, to mankind.

Elliot, vol. 3, pp. 610–11.

2.2.3  Philadelphia Convention

2.2.3.1  Proposal by Pinckney, May 29, 1787

Art. VI. … The legislature of the United States shall pass no law on the subject of religion; nor touching or abridging the liberty of the press; [n]or shall the privilege of the writ of habeas corpus ever be suspended, except in case of rebellion or invasion.

Elliot, vol. 5, pp. 130–31.

2.2.3.2  Proposal by Pinckney, August 20, 1787

In Convention.—Mr. PINCKNEY submitted to the House, in order to be referred to the committee of detail, the following propositions:—

“The liberty of the press shall be inviolably preserved.

Elliot, vol. 5, p. 445.

2.2.3.3  Proposal by Pinckney & Gerry, September 14, 1787

Mr. PINCKNEY and Mr. GERRY moved to insert a declaration, “that the liberty of the press should be inviolably observed.”

Mr. SHERMAN. It is unnecessary. The power of the Congress does not extend to the press.

On the question, it passed in the negative.

Elliot, vol. 5, p. 545.

(p. 166) 2.2.4  Newspapers and Pamphlets

2.2.4.1  A Citizen of New-York: An Address to the People of the State of New York, April 15, 1787

We are told, among other strange things, that the liberty of the press is left insecure by the proposed Constitution, and yet that Constitution says neither more nor less about it, than the Constitution of the State of New York does. We are told that it deprives us of trial by jury, whereas the fact is, that it expressly secures it in certain cases, and takes it away in none — it is absurd to construe the silence of this, or of our own Constitution, relative to a great number of our rights, into a total extinction of them — silence and blank paper neither grant nor take away anything. Complaints are also made that the proposed Constitution is not accompanied by a bill of rights; and yet they who would make these complaints, know and are content that no bill of rights accompanied the Constitution of this State. In days and countries, where Monarchs and their subjects were frequently disputing about prerogative and privileges, the latter often found it necessary, as it were to run out the line between them, and oblige the former to admit by solemn acts, called bills of rights, that certain enumerated rights belonged to the people, and were not comprehended in the royal prerogative. But thank God we have no such disputes — we have no Monarchs to contend with, or demand admission from — the proposed Government is to be the government of the people — all its officers are to be their officers, and to exercise no rights but such as the people commit to them. The Constitution only serves to point out that part of the people’s business, which they think proper by it to refer to the management of the persons therein designated — those persons are to receive that business to manage, not for themselves, and as their own, but as agents and overseers for the people to whom they are constantly responsible, and by whom only they are to be appointed.

Kaminski & Saladino, vol. 17, pp. 112–13.

2.2.4.2  George Mason, Objections to the Constitution, October 4, 1787

Under their own construction of the general Clause at the End of the enumerated powers, the Congress may grant Monopolies in Trade and Commerce, constitute new Crimes, inflict unusual and severe Punishments, and extend their power as far as they shall think proper; so that the State Legislatures have no Security for the Powers now presumed to remain to them; or the People for their Rights.

There is no declaration of any kind for preserving the Liberty of the Press, the Tryal by Jury in civil Causes; nor against the Danger of standing Armys in time of Peace.

Storing, vol. 2, p. 13.

2.2.4.3  James Wilson, Speech at a Meeting in Philadelphia, October 6, 1787

… This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights, a defect in the proposed constitution: for it would have been superfluous and absurd, to have stipulated with a foederal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act that has brought that body into existence. For instance, the liberty of the press, which has been a copious subject of declamation and opposition: what controul can proceed from the foederal government, to shackle or destroy that sacred palladium of national freedom? If, indeed, a power (p. 167) similar to that which has been granted for the regulation of commerce, had been granted to regulate literary publications, it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate, as that the impost should be general in its operation.

Kaminski & Saladino, vol. 13, pp. 339–40.

2.2.4.4  The Federal Farmer, No. 4, October 12, 1787

I confess I do not see in what cases the congress can, with any pretence of right, make a law to suppress the freedom of the press; though I am not clear, that congress is restrained from laying any duties whatever on printing, and from laying duties particularly heavy on certain pieces printed, and perhaps congress may require large bonds for the payment of these duties. Should the printer say, the freedom of the press was secured by the constitution of the state in which he lived, congress might, and perhaps, with great propriety, answer, that the federal constitution is the only compact existing between them and the people; in this compact the people have named no others, and therefore congress, in exercising the powers assigned them, and in making laws to carry them into execution, are restrained by nothing beside the federal constitution, any more than a state legislature is restrained by a compact between the magistrates and people of a county, city, or town of which the people, in forming the state constitution, have taken no notice.

It is not my object to enumerate rights of inconsiderable importance; but there are others, no doubt, which ought to be established as a fundamental part of the national system.

Storing, vol. 2, p. 250.

2.2.4.5  An Old Whig, No. 1, October 12, 1787

… Should the freedom of the press be restrained on the subject of politics, there is no doubt it will soon after be restrained on all other subjects, religious as well as civil. …

[Philadelphia] Independent Gazetteer, Kaminski & Saladino, vol. 13, p. 378.

2.2.4.6  Centinel, No. 2, October 24, 1787

friends, countrymen, and fellow-citizens, As long as the liberty of the press continues unviolated, and the people have the right of expressing and publishing their sentiments upon every public measure, it is next to impossible to enslave a free nation. The state of society must be very corrupt and base indeed, when the people in possession of such a monitor as the press, can be induced to exchange the heavenborn blessings of liberty for the galling chains of despotism. — Men of an aspiring and tyrannical disposition, sensible of this truth, have ever been inimical to the press, and have considered the shackling of it, as the first step towards the accomplishment of their hateful dominaton, and the entire suppression of all liberty of public discussion, as necessary to its support. — For even a standing army, that grand engine of oppression, if it were as numerous as the abilities of any nation could maintain, would not be equal to the purposes of despotism over an enlightenend [sic] people.

The abolition of that grand palladium of freedom, the liberty of the press, in the proposed plan of government, and the conduct of its authors, and patrons, is a striking exemplification of these observations. The reason assigned for the omission of a bill of rights, securing the liberty of the press, and other invaluable personal rights, is an insult on the understanding of the people.(p. 168)

Mr. Wilson asks, “What controul can proceed from the federal government to shackle or destroy that sacred palladium of national freedom, the liberty of the press?” What! — Cannot Congress, when possessed of the immense authority proposed to be devolved, restrain the printers, and put them under regulation. — Recollect that the omnipotence of the federal legislature over the State establishments is recognized by a special article, viz. — “that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitutions or laws of any State to the contrary notwithstanding.” — After such a declaration, what security does the Constitutions of the several States afford for the liberty of the press and other invaluable personal rights, not provided for by the new plan? — Does not this sweeping clause subject every thing to the controul of Congress?

The new plan, it is true, does propose to secure the people of the benefit of personal liberty by the habeas corpus; and trial by jury for all crimes, except in case of impeachment: but there is no declaration, … that the liberty of the press be held sacred; … .

[Philadelphia] Freeman’s Journal, Kaminski & Saladino, vol. 13, pp. 457, 460, 466.

2.2.4.7  Timoleon, November 1, 1787

After some judicious reflections on this subject, which tended to shew the necessity of the most plain and unequivocal language in the all important business of constituting government, which necessarily conveying great powers, is always liable (from the natural tendency of power to corrupt the human heart and deprave the head) to great abuse; by perverse and subtle arguments calculated to extend dominion over all things and all men. One of the club supposed the following case: — A gentleman, in the line of his profession is appointed a judge of the supreme court under the new Constitution, and the rulers, finding that the rights of conscience and the freedom of the press were exercised in such a manner, by preaching and printing as to be troublesome to the new government—which event would probably happen, if the rulers finding themselves possessed of great power, should so use it as to oppress and injure the community.—In this state of things the judge is called upon, in the line of his profession, to give his opinion—whether the new Constitution admitted of a legislative act to suppress the rights of conscience, and violate the liberty of the press? The answer of the learned judge is conceived in didactic mode, and expressed in learned phrase; thus,—In the 8th section of the first article of the new Constitution, the Congress have power given to lay and collect taxes for the general welfare of the United States. By this power, the right of taxing is co-extensive with the general welfare, and the general welfare is as unlimitted as actions and things are that may disturb or benefit that general welfare. A right being given to tax for the general welfare, necessarily includes the right of judging what is for the general welfare, and a right of judging what is for the general welfare, as necessarily includes a power of protecting, defending, and promoting it by all such laws and means as are fitted to that end; for, qui dat finem dat media ad finem necessaria, who gives the end gives the means necessary to obtain the end. The Constitution must be so construed as not to involve an absurdity, which would (p. 169) clearly follow from allowing the end and denying the means. A right of taxing for the general welfare being the highest and most important mode of providing for it, cannot be supposed to exclude inferior modes of effecting the same purpose, because the rule of law is, that, omne majus continct in se minus.

From hence it clearly results, that, if preachers and printers are troublesome to the new government; and that in the opinion of its rulers, it shall be for the general welfare to restrain or suppress both the one and the other, it may be done consistently with the new Constitution. And that this was the opinion of the community when they consented to it, is evident from this consideration; that although the all comprehending power of the new legislature is fixed, by its acts being made the supreme law of the land, any thing in the Constitutions or laws of any state to the contrary notwithstanding: Yet no express declaration in favor of the rights of conscience or liberty of the press is to be found in the new Constitution, as we see was carefully done in the Constitutions of the states composing this union — Shewing clearly, that what was then thought necessary to be specially reserved from the pleasure of power, is now designed to be yielded to its will.

A grave old gentleman of the club, who had sat with his head reclined on his hand, listening in pensive mood to the argument of the judge, said, “I verily believe, that neither the logic or the law of that opinion will be hereafter doubted by the professors of power, who, through the history of human nature, have been for enlarging the sphere of their authority. And thus the dearest rights of men and the best security of civil liberty may be sacrificed by the sophism of a lawyer, who, Carneades like, can to day shew that to be necessary, before the people, which tomorrow he can likewise shew to be unnecessary and useless — For which reason the sagacious Cato advised, that such a man should immediately be sent from the city, as a person dangerous to the morals of the people and to society.” The old gentleman continued, “I now plainly see the necessity of express declarations and reservations in favor of the great, unalienable rights of mankind, to prevent the oppressive and wicked extention of power to the ruin of human liberty. For the opinion above stated, absolutely refutes the sophistry of ‘that being retained which is not given,’ where the words conveying power admit of the most extensive construction that language can reach to, or the mind conceive, as is the case in this new Constitution. By which we have already seen how logically it may be proved, that both religion and the press can be made to bend before the views of power. …

New York Journal, Kaminski & Saladino, vol. 13, pp. 534–36.

2.2.4.8  An Old Whig, No. 5, November 1, 1787

It is needless to repeat the necessity of securing other personal rights in the forming a new government. The same argument which proves the necessity of securing one of them shews also the necessity of securing others. Without a bill of rights we are totally insecure in all of them; and no man can promise himself with any degree of certainty that his posterity will enjoy the inestimable blessings of liberty of conscience, of freedom of speech and of writing and publishing their thoughts on public matters, of trial by jury, of holding themselves, their houses and papers free from seizure and search upon general suspicion or general warrants; or in short that they will be secured in the enjoyment of life, liberty and property without depending on the will and pleasure of their rulers.

[Philadelphia] Independent Gazetteer, Kaminski & Saladino, vol. 13, p. 541.

(p. 170) 2.2.4.9  Cincinnatus, No. 1, November 1, 1787

You instance, Sir, the liberty of the press; which you would persuade us, is in no danger, though not secured, because there is no express power granted to regulate literary publications. But you surely know, Sir, that where general powers are expressly granted, the particular ones comprehended within them, must also be granted. For instance, the proposed Congress are empowered — to define and punish offences against the law of the nations — mark well, Sir, if you please — to define and punish. Will you, will any one say, can any one even think that does not comprehend a power to define and declare all publications from the press against the conduct of government, in making treaties, or in any other foreign transactions, an offence against the law of nations? If there should ever be an influential president, or arbitrary senate, who do not choose that their transactions with foreign powers should be discussed or examined in the public prints, they will easily find pretexts to prevail upon the other branch to concur with them, in restraining what it may please them to call — the licentiousness of the press. And this may be, even without the concurrence of the representative of the people; because the president and senate are empowered to make treaties, and these treaties are declared the supreme law of the land.

What use they will make of this power, is not now the question. Certain it is, that such power is given, and that power is not restrained by any declaration — that the liberty of the press, which even you term, the sacred palladium of national freedom, shall be forever free and inviolable. I have proved that the power of restraining the press, is necessarily involved in the unlimited power of defining offences, or of making treaties, which are to be the supreme law of the land. You acknowledge, that it is not expressly excepted, and consequently it is at the mercy of the powers to be created by this constitution.

New York Journal, Storing, vol. 6, pp. 8–9.

2.2.4.10  Cincinnatus, No. 2, November 8, 1787

I have proved, sir, that not only some power is given in the constitution to restrain, and even to subject the press, but that it is a power totally unlimited; and may certainly annihilate the freedom of the press, and convert it from being the palladium of liberty to become an engine of imposition and tyranny. It is an easy step from restraining the press to making it place the worst actions of government in so favorable a light, that we may groan under tyranny and oppression without knowing from whence it comes.

But you comfort us, by saying, — “there is no reason to suspect so popular a privilege will be neglected.” The wolf, in the fable, said as much to the sheep, when he was persuading them to trust him as their protector, and to dismiss their guardian dogs. Do you indeed suppose, Mr. Wilson, that if the people give up their privileges to these new rulers they will render them back again to the people? Indeed, sir, you should not trifle upon a question so serious — You would not have us to suspect any ill. If we throw away suspicion — to be sure, the thing will go smoothly enough, and we shall deserve to continue a free, respectable, and happy people. Suspicion shackles rulers and prevents good government. All great and honest politicians, like yourself, have reprobated it. Lord Mansfield is a great authority against it, and has often treated it as the worst of libels. But such men as Milton, Sidney, Locke, Montesquieu, and Trenchard, have thought it essential to the preservation of liberty against the artful and persevering encroachments of those with whom power is trusted. You will pardon me, sir, if I pay some respect to these opinions, and wish that the freedom of the press may be previously secured as a constitutional and unalienable right, and not left to the precarious care (p. 171) of popular privileges which may or may not influence our new rulers. You are fond of, and happy at, quaint expressions of this kind in your observation — that a formal declaration would have done harm, by implying, that some degree of power was given when we undertook to define its extent. This thought has really a brilliancy in it of the first water. But permit me, sir, to ask, why any saving clause was admitted into this constitution, when you tell us, every thing is reserved that is not expressly given? Why is it said in sec. 9th, “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by Congress, prior to the year, 1808.” There is no power expressly given to the Congress to prohibit migrations and importations. By your doctrine then they could have none, and it was, according to your own position, nugatory to declare they should not do it. Which are we to believe, sir, — you or the constitution? The text, or the comment. If the former, we must be persuaded, that in the contemplation of the framers of the constitution implied powers were given, otherwise the exception would have been an absurdity. If we listen to you we must affirm it to be a distinctive characteristic of the constitution, that — “what is not expressly given is reserved.” Such are the inconsistencies into which men over ingenuous, like yourself, are betrayed in advocating a bad cause. Perhaps four months more consideration of the subject, would have rendered you more guarded.

New York Journal, Storing, vol. 6, pp. 10–11.

2.2.4.11  A Countryman, No. 2, November 22, 1787

Of a very different nature, tho’ only one degree better than the other reasoning, is all that sublimity of nonsense and alarm, that has been thundered against it in every shape of metaphoric terror, on the subject of a bill of rights, the liberty of the press, rights of conscience, rights of taxation and election, trials in the vicinity, freedom of speech, trial by jury, and a standing army. These last are undoubtedly important points, much too important to depend on mere paper protection. For, guard such privileges by the strongest expressions, still if you leave the legislative and executive power in the hands of those who are or may be disposed to deprive you of them — you are but slaves. Make an absolute monarch — give him the supreme authority, and guard as much as you will by bills of rights, your liberty of the press, and trial by jury; — he will find means either to take them from you, or to render them useless.

On examining the new proposed constitution, there can not be a question, but that there is authority enough lodged in the proposed federal Congress, if abused, to do the greatest injury. And it is perfectly idle to object to it, that there is no bill of rights, or to propose to add to it a provision that a trial by jury shall in no case be omitted, or to patch it up by adding a stipulation in favor of the press, or to guard it by removing the paltry objection to the right of Congress to regulate the time and manner of elections.

New Haven Gazette, Kaminski & Saladino, vol. 14, pp. 172–74.

2.2.4.12  Landholder, No. 6, December 10, 1787

There is no declaration of any kind to preserve the liberty of the press, &c. Nor is liberty of conscience, or of matrimony, or of burial of the dead; it is enough that congress have no power to prohibit either, and can have no temptation. This objection is answered in that the states have all the power originally, and congress have only what the states grant them.

Connecticut Courant, Kaminski & Saladino, vol. 14, p. 401.

(p. 172) 2.2.4.13  The Federal Farmer, No. 6, December 25, 1787

The following, I think, will be allowed to be unalienable or fundamental rights in the United States:—

No man, demeaning himself peaceably, shall be molested on account of his religion or mode of worship — The people have a right to hold and enjoy their property according to known standing laws, and which cannot be taken from them without their consent, or the consent of their representatives; and whenever taken in the pressing urgencies of government, they are to receive a reasonable compensation for it — Individual security consists in having free recourse to the laws — The people are subject to no laws or taxes not assented to by their representatives constitutionally assembled — They are at all times intitled to the benefits of the writ of habeas corpus, the trial by jury in criminal and civil causes — They have a right, when charged, to a speedy trial in the vicinage; to be heard by themselves or counsel, not to be compelled to furnish evidence against themselves, to have witnesses face to face, and to confront their adversaries before the judge — No man is held to answer a crime charged upon him till it be substantially described to him; and he is subject to no unreasonable searches or seizures of his person, papers or effects — The people have a right to assemble in an orderly manner, and petition the government for a redress of wrongs — The freedom of the press ought not to be restrained — No emoluments, except for actual service — No hereditary honors, or orders of nobility, ought to be allowed — The military ought to be subordinate to the civil authority, and no soldier be quartered on the citizens without their consent — The militia ought always to be armed and disciplined, and the usual defence of the country — The supreme power is in the people, and power delegated ought to return to them at stated periods, and frequently — The legislative, executive, and judicial powers, ought always to be kept distinct — others perhaps might be added.

Storing, vol. 2, p. 262.

2.2.4.14  The Federal Farmer, No. 16, January 20, 1788

All parties apparently agree, that the freedom of the press is a fundamental right, and ought not to be restrained by any taxes, duties, or in any manner whatever. Why should not the people, in adopting a federal constitution, declare this, even if there are only doubts about it. But, say the advocates, all powers not given are reserved: — true; but the great question is, are not powers given, in the exercise of which this right may be destroyed? The people’s or the printers claim to a free press, is founded on the fundamental laws, that is, compacts, and state constitutions, made by the people. The people, who can annihilate or alter those constitutions, can annihilate or limit this right. This may be done by giving general powers, as well as by using particular words. No right claimed under a state constitution, will avail against a law of the union, made in pursuance of the federal constitution: therefore the question is, what laws will congress have a right to make by the constitution of the union, and particularly touching the press? By art. 1. sect. 8. congress will have power to lay and collect taxes, duties, imposts and excise. By this congress will clearly have power to lay and collect all kind of taxes whatever — taxes on houses, lands, polls, industry, merchandize, &c. — taxes on deeds, bonds, and all written instruments — on writs, pleas, and all judicial proceedings, on licences, naval officers papers, &c. on newspapers, advertisements, &c. and to require bonds of the naval officers, clerks, printers, &c. to account for the taxes that may become due on papers that go through their hands. Printing, like all other business, must cease when taxed (p. 173) beyond its profits; and it appears to me, that a power to tax the press at discretion, is a power to destroy or restrain the freedom of it. There may be other powers given, in the exercise of which this freedom may be effected; and certainly it is of too much importance to be left thus liable to be taxed, and constantly to constructions and inferences. A free press is the channel of communication as to mercantile and public affairs; by means of it the people in large countries ascertain each others sentiments; are enabled to unite, and become formidable to those rulers who adopt improper measures. Newspapers may sometimes be the vehicles of abuse, and of many things not true; but these are but small inconveniences, in my mind, among many advantages. A celebrated writer, I have several times quoted, speaking in high terms of the English liberties, says, “lastly the key stone was put to the arch, by the final establishment of the freedom of the press.”

Storing, vol. 2, pp. 329–30.

2.2.4.15  Aristides’ Remarks on the Proposed Plan, January 31, 1788

By their scheme, however, thus deeply concerted, the house of representatives is to be chosen by the people once in two years; and if they have acted so as to warrant any reasonable apprehension of their designs, it will be easy, at any time, to prevent their election. The truth is, that very few of them either wish to be elected, or would consent to serve, either in that house, or in the senate. I have exercised my imagination to devise in what manner they, or any other men, supposing them to bear full sway in both houses, could erect this imaginary fabric of power. I request any person to point out any law, or system of laws, that could be possibly contrived for that purpose, obtain the final assent of each branch, and be carried into effect, contrary to the interests and wishes of a free, intelligent, prying people, accustomed to the most unbounded freedom of inquiry. To begin by an attempt to restrain the press, instead of promoting their designs, would be the most effectual thing to prevent them.

Whilst mankind shall believe freedom to be better than slavery; whilst our lands shall be generally distributed, and not held by a few insolent barons, on the debasing terms of vassallage; whilst we shall teach our children to read and write; whilst the liberty of the press, that grand palladium, which tyrants are compelled to respect, shall remain; whilst a spark of public love shall animate even a small part of the people; whilst even self-love shall be the general ruling principle; so long will it be impossible for an aristocracy to arise from the proposed plan. — Should Heaven, in its wrath, inflict blindness on the people of America; should they reject this fair offer of permanent safety and happiness; — to predict, what species of government shall at last spring from disorder, is beyond the short reach of political foresight.

Kaminski & Saladino, vol. 15, pp. 522–23, 548.

2.2.4.16  A Columbian Patriot, February 1788

2. There is no security in the profered system, either for the rights of conscience, or the liberty of the Press: Despotism usually while it is gaining ground, will suffer men to think, say, or write what they please; but when once established, if it is thought necessary to subserve the purposes of arbitrary power, the most unjust restrictions may take place in the first instance, and an imprimator [sic] on the Press in the next, may silence the complaints, and forbid the most decent remonstrances of an injured and oppressed people.

Kaminski & Saladino, vol. 16, p. 279.

(p. 174) 2.2.4.17  Hugh Williamson, February 25–27, 1788

We have been told that the Liberty of the Press is not secured by the New Constitution. Be pleased to examine the plan, and you will find that the Liberty of the Press and the laws of Mahomet are equally affected by it. The New Government is to have the power of protecting literary property; the very power which you have by a special act delegated to the present Congress. There was a time in England, when neither book, pamphlet, nor paper could be published without a license from Government. That restraint was finally removed in the year 1694 and by such removal, their press became perfectly free, for it is not under the restraint of any license. Certainly the new Government can have no power to impose restraints. The citizens of the United States have no more occasion for a second Declaration of Rights, than they have for a section in favor of the press. Their rights, in the several States, have long since been explained and secured by particular declarations, which make a part of their several Constitutions. It is granted, and perfectly understood, that under the Government of the Assemblies of the States, and under the Government of the Congress, every right is reserved to the individual, which he has not expressly delegated to this, or that Legislature. …

[New York] Daily Advertiser, Kaminski & Saladino, vol. 16, p. 202.

2.2.4.18  A Plebeian, Spring 1788

“We are told, (says he [John Jay]) among other strange things, that the liberty of the press is left insecure by the proposed constitution, and yet that constitution says neither more nor less about it, than the constitution of the state of New-York does. We are told it deprives us of trial by jury, whereas the fact is, that it expressly secures it in certain cases, and takes it away in none, &c. it is absurd to construe the silence of this, or of our own constitution relative to a great number of our rights into a total extinction of them; silence and a blank paper neither grant nor take away anything.”

It may be a strange thing to this author to hear the people of America anxious for the preservation of their rights, but those who understand the true principles of liberty, are no strangers to their importance. The man who supposes the constitution, in any part of it, is like a blank piece of paper, has very erroneous ideas of it. He may be assured every clause has a meaning, and many of them such extensive meaning, as would take a volume to unfold. The suggestion, that the liberty of the press is secure, because it is not in express words spoken of in the constitution, and that the trial by jury is not taken away, because it is not said in so many words and letters it is so, is puerile and unworthy of a man who pretends to reason. We contend, that by the indefinite powers granted to the general government, the liberty of the press may be restricted by duties, &c. and therefore the constitution ought to have stipulated for its freedom. The trial by jury, in all civil cases is left at the discretion of the general government, except in the supreme court on the appellate jurisdiction, and in this I affirm it is taken away, not by express words, but by fair and legitimate construction and inference; for the supreme court have expressly given them an appellate jurisdiction, in every case to which their powers extend (with two or three exceptions) both as to law and fact. The court are the judges; every man in the country, who has served as a juror, knows, that there is a distinction between the court and the jury, and that the lawyers in their pleading, make the distinction. If the court, upon appeals, are to determine both the law and the fact, there is no room for a jury, and the right of trial in this mode is taken away.

The author manifests equal levity in referring to the constitution of this state, to shew that it was useless to stipulate for the liberty of the press, or to insert a bill of rights in the (p. 175) constitution. With regard to the first, it is perhaps an imperfection in our constitution that the liberty of the press is not expressly reserved; but still there was not equal necessity of making this reservation in our State as in the general Constitution, for the common and statute law of England, and the laws of the colony are established, in which this privilege is fully defined and secured. It is true, a bill of rights is not prefixed to our constitution, as it is in that of some of the states; but still this author knows, that many essential rights are reserved in the body of it; and I will promise, that every opposer of this system will be satisfied, if the stipulations that they contend for are agreed to, whether they are prefixed, affixed, or inserted in the body of the constitution, and that they will not contend which way this is done, if it be but done.

Storing, vol. 6, pp. 144–45.

2.2.4.19  Marcus, No. 4, March 12, 1788

VIIIth Objection.

“Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they shall think proper; so that the State Legislatures have no security for the powers now presumed to remain to them: or the people for their rights. There is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil causes, nor against the danger of standing armies in time of peace.”

Answer.

The Liberty of the Press is always a grand topic for declamation, but the future Congress will have no other authority over this than to secure to authors for a limited time an exclusive privilege of publishing their works. This authority has been long exercised in England, where the press is as free as among ourselves or in any country in the world, and surely such an encouragement to genius is no, restraint on the liberty of the press, since men are allowed to publish what they please of their own; and so far as this may be deemed a restraint upon others it is certainly a reasonable one, and can be attended with no danger of copies not being sufficiently multiplied, because the interest of the proprietor will always induce him to publish a quantity fully equal to the demand — besides that such encouragement may give birth to many excellent writings which would otherwise have never appeared. If the Congress should exercise any other power over the press than this, they will do it without any warrant from this Constitution, and must answer for it as for any other act of tyranny.

Norfolk and Portsmouth Journal, Kaminski & Saladino, vol. 16, pp. 379–82.

2.2.4.20  Benjamin Franklin, An Account of the Supremest Court of Judicature in Pennsylvania, viz., the Court of the Press, September 12, 1789

power of this court.

It may receive and promulgate accusations of all kinds, against all persons and characters among the citizens of the State, and even against all inferior courts; and may judge, sentence, and condemn to infamy, not only private individuals, but public bodies, &c., with or without inquiry or hearing, at the court’s discretion.

(p. 176) in whose favour and for whose emolument this court is established.

In favour of about one citizen in five hundred, who, by education or practice in scribbling, has acquired a tolerable style as to grammar and construction, so as to bear printing; or who is possessed of a press and a few types. This five hundredth part of the citizens have the privilege of accusing and abusing the other four hundred and ninety-nine parts at their pleasure; or they may hire out their pens and press to others for that purpose.

practice of the court.

It is not governed by any of the rules of common courts of law. The accused is allowed no grand jury to judge of the truth of the accusation before it is publicly made, nor is the Name of the Accuser made known to him nor has he an Opportunity of confronting the Witnesses against him; for they are kept in the dark, as in the Spanish Court of Inquisition. Nor is there any petty Jury of his Peers, sworn to try the Truth of the Charges. The Proceedings are also sometimes so rapid, that an honest, good Citizen may find himself suddenly and unexpectedly accus’d, and in the same Morning judg’d and condemn’d, and sentence pronounc’d against him, that he is a Rogue and a Villain. Yet, if an officer of this court receives the slightest check for misconduct in this his office, he claims immediately the rights of a free citizen by the constitution, and demands to know his accuser, to confront the witnesses, and to have a fair trial of his peers.

the foundation of its authority.

It is said to be founded on an Article of the Constitution of the State, which established the Liberty of the Press; a Liberty which every Pennsylvanian would fight and die for; tho’ few of us, I believe, have distinct Ideas of its Nature and Extent. It seems indeed somewhat like the Liberty of the Press that Felons have, by the Common Law of England, before Conviction, that is, to be Press’d to death or hanged. If by the Liberty of the Press were understood merely the Liberty of discussing the Propriety of Public Measures and political opinions, let us have as much of it as you please: But if it means the Liberty of affronting, calumniating, and defaming one another, I, for my part, own myself willing to part with my Share of it when our Legislators shall please so to alter the Law, and shall cheerfully consent to exchange my Liberty of Abusing others for the Privilege of not being abus’d myself.

by whom this court is commissioned or constituted.

It is not by any Commission from the Supreme Executive Council, who might previously judge of the Abilities, Integrity, Knowledge, &c. of the Persons to be appointed to this great Trust, of deciding upon the Characters and good Fame of the Citizens; for this Court is above that Council, and may accuse, judge, and condemn it, at pleasure. Nor is it hereditary, as in the Court of Dernier Resort, in the Peerage of England. But any Man who can procure Pen, Ink, and Paper, with a Press, and a huge pair of BLACKING BALLS, may commissionate himself; and his court is immediately established in the plenary Possession and exercise of its rights. For, if you make the least complaint of the judge’s conduct, he daubs his blacking balls in your face wherever he meets you; and, besides tearing your private character to flitters, marks you out for the odium of the public, as an enemy to the liberty of the press.

of the natural support of these courts.

Their support is founded in the depravity of such minds, as have not been mended by religion, nor improved by good education;

“There is a Lust in Man no Charm can tame,

Of loudly publishing his Neighbour’s Shame.”(p. 177)

Hence;

“On Eagle’s Wings immortal Scandals fly,

While virtuous Actions are but born and die.”

Dryden

Whoever feels pain in hearing a good character of his neighbour, will feel a pleasure in the reverse. And of those who, despairing to rise into distinction by their virtues, are happy if others can be depressed to a level with themselves, there are a number sufficient in every great town to maintain one of these courts by their subscriptions. A shrewd observer once said, that, in walking the streets in a slippery morning, one might see where the good-natured people lived by the ashes thrown on the ice before their doors; probably he would have formed a different conjecture of the temper of those whom he might find engaged in such a subscription.

of the checks proper to be established against the abuse of power in these courts.

Hitherto there are none. But since so much has been written and published on the federal Constitution, and the necessity of checks in all other parts of good government has been so clearly and learnedly explained, I find myself so far enlightened as to suspect some check may be proper in this part also; but I have been at a loss to imagine any that may not be construed an infringement of the sacred liberty of the press. At length, however, I think I have found one that, instead of diminishing general liberty, shall augment it; which is, by restoring to the people a species of liberty, of which they have been deprived by our laws, I mean the liberty of cudgel. In the rude state of society prior to the existence of laws, if one man gave another ill language, the affronted person would return it by a box on the ear, and, if repeated, by a good drubbing; and this without offending against any law. But now the right of making such returns is denied, and they are punished as breaches of the peace; while the right of abusing seems to remain in full force, the laws made against it being rendered ineffectual by the liberty of the press.

My proposal then is, to leave the liberty of the press untouched, to be exercised in its full extent, force, and vigor; but to permit the liberty of the cudgel to go with it pari passu. Thus, my fellow-citizens, if an impudent writer attacks your reputation, dearer to you perhaps than your life, and puts his name to the charge, you may go to him as openly and break his head. If he conceals himself behind the printer, and you can nevertheless discover who he is, you may in like manner waylay him in the night, attack him behind, and give him a good drubbing. Thus far goes my project as to private resentment and retribution. But if the public should ever happen to be affronted, as it ought to be, with the conduct of such writers, I would not advise proceeding immediately to these extremities; but that we should in moderation content ourselves with tarring and feathering, and tossing them in a blanket.

If, however, it should be thought that this proposal of mine may disturb the public peace, I would then humbly recommend to our legislators to take up the consideration of both liberties, that of the press, and that of the cudgel, and by an explicit law mark their extent and limits; and, at the same time that they secure the person of a citizen from assaults, they would likewise provide for the security of his reputation.

Writings of Benjamin Franklin, Albert Henry Smith, ed. (New York: Macmillan, 1907), vol. 10, pp. 36–40.

(p. 178) 2.2.5  Letters and Diaries

2.2.5.1  Thomas Jefferson to Edward Carrington, January 16, 1787

The tumults in America, I expected would have produced in Europe an unfavorable opinion of our political state. But it has not. On the contrary, the small effect of those tumults seems to have given more confidence in the firmness of our governments. The interposition of the people themselves on the side of government has had a great effect on the opinion here. I am persuaded myself that the good sense of the people will always be found to be the best army. They may be led astray for a moment, but will soon correct themselves. The people are the only censors of their governors: and even their errors will tend to keep these to the true principles of their institution. To punish these errors too severely would be to suppress the only safeguard of the public liberty. The way to prevent these irregular interpositions of the people is to give them full information of their affairs thro’ the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people. The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive these papers and be capable of reading them. I am convinced that those societies (as the Indians) which live without government enjoy in their general mass an infinitely greater degree of happiness than those who live under European governments. Among the former, public opinion is in the place of law, and restrains morals as powerfully as laws ever did any where. Among the latter, under pretence of governing they have divided their nations into two classes, wolves and sheep. I do not exaggerate. This is a true picture of Europe. Cherish therefore the spirit of our people, and keep alive their attention. Do not be too severe upon their errors, but reclaim them by enlightening them. If once they become inattentive to the public affairs, you and I, and Congress, and Assemblies, judges and governors shall all become wolves. It seems to be the law of our general nature, in spite of individual exceptions; and experience declares that man is the only animal which devours his own kind, for I can apply no milder term to the governments of Europe, and to the general prey of the rich on the poor.

Boyd, vol. 11, pp. 48–49.

2.2.5.2  Richard Henry Lee to Samuel Adams, October 27, 1787

… Because Independent States are in the same relation to each other as Individuals are with respect to uncreated government. So that if reservations were necessary in one case, they are equally necessary in the other. But the futility of this distinction appears from the conduct of the Convention itself, for they have made several reservations—every one of which proves the Rule in Conventional ideas to be, that what was not reserved was given — For example, they have reserved from their Legislature a power to prevent the importation of Slaves for 20 years, and also from Creating Titles. But they have no reservation in favor of the Press, Rights of Conscience, Trial by Jury in Civil Cases, or Common Law securities.

As if these were of less importance to the happiness of Mankind than the making of Lords, or the importations of Slaves!…

Kaminski & Saladino, vol. 13, pp. 484–85.

(p. 179) 2.2.5.3  Thomas Jefferson to James Madison, December 20, 1787

… There are other good things of less moment. I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the law of Nations.

Boyd, vol. 12, p. 440.

2.2.5.4  Thomas Jefferson to William Stephens Smith, February 2, 1788

… But I own it astonishes me to find such a change wrought in the opinions of our countrymen since I left them, as that threefourths of them should be contented to live under a system which leaves to their governors the power of taking from them the trial by jury in civil cases, freedom of religion, freedom of the press, freedom of commerce, the habeas corpus laws, and of yoking them with a standing army. This is a degeneracy in the principles of liberty to which I had given four centuries instead of four years.

Boyd, vol. 12, p. 558.

2.2.5.5  Thomas Jefferson to Alexander Donald, February 7, 1788

… By a declaration of rights I mean one which shall stipulate freedom of religion, freedom of the press, freedom of commerce against monopolies, trial by juries in all cases, no suspensions of the habeas corpus, no standing armies. These are fetters against doing evil which no honest government should decline.

Boyd, vol. 12, p. 571.

2.2.5.6  Thomas Jefferson to C. W. F. Dumas, February 12, 1788

… Besides other objections of less moment, she will insist on annexing a bill of rights to the new constitution, i.e. a bill wherein the government shall declare that… 2. Printing presses free.

Boyd, vol. 12, p. 583.

2.2.5.7  Thomas Jefferson to Francis Hopkinson, March 13, 1789

… What I disapproved from the first moment also was the want of a bill of rights to guard liberty against the legislative as well as executive branches of the government, that is to say to secure freedom in religion, freedom of the press, freedom from monopolies, freedom from unlawful imprisonment, freedom from a permanent military, and a trial by jury in all cases determinable by the laws of the land.

Boyd, vol. 14, p. 650.

2.2.5.8  Edmund Randolph to James Madison, March 27, 1789

… The liberty of the press is indeed a blessing, which ought not to be surrendered but with blood; and yet it is not an illfounded expectation in those, who deserve well of their country, that they should be assailed by an enemy in disguise, and have their characters deeply wounded, before they can prepare for defence. I apply not this to any particular person.

Veit, pp. 223–24.

(p. 180) 2.2.5.9  Jeremy Belknap to Paine Wingate, May 29, 1789

… You will see in the speech wh. our new Lieut. Governor [Samuel Adams] made at his investiture that he has not thrown off the old idea of “independence” as an attribute of each individual State in the “confederated Republic” — & you will know in what light to regard his “devout & fervent wish” that the “people may enjoy well grounded confidence that their personal & domestic rights are secure.” This is the same Language or nearly the same which he used in the Convention when he moved for an addition to the proposed Amendments — by inserting a clause to provide for the Liberty of the press — the right to keep arms — Protection from seizure of person & property & the Rights of Conscience. By which motion he gave an alarm to both sides of the house & had nearly overset the whole business which the Friends of the Constitution had been labouring for several Weeks to obtain. …

Veit, p. 241.

2.2.5.10  George Clymer to Richard Peters, June 8, 1789

Madison this morning is to make an essay towards amendments — but whether he means merely a tub to the whale, or declarations about the press liberty of conscience &c. or will suffer himself to be so far frightened with the antifederalism of his own state as to attempt to lop off essentials I do not know — I hope however we shall be strong enough to postpone. …

Afternoon — Madison’s has proved a tub on a number of Ad. but Gerry is not content with them alone, and proposes to treat us with all the amendments of all the antifederalists in America.

Veit, p. 245.

2.2.5.11  Fisher Ames to Thomas Dwight, June 11, 1789

Mr. Madison has introduced his long expected Amendments. They are the fruit of much labour and research. He has hunted up all the grievances and complaints of newspapers — all the articles of Conventions — and the small talk of their debates. It contains a Bill of Rights — the right of enjoying property — of changing the govt. at pleasure — freedom of the press — of conscience — of juries — exemption from general Warrants gradual increase of representatives till the whole number at the rate of one to every 30,000 shall amount to and allowing two to every State, at least this is the substance. There is too much of it — O. I had forgot the right of the people to bear Arms.

Risum teneatis amici —

Upon the whole, it may do good towards quieting men who attend to sounds only, and may get the mover some popularity — which he wishes.

Veit, p. 247.

2.2.5.12  Fisher Ames to George R. Minot, June 12, 1789

… The civil departments will employ us next, and the judiciary the Senate. They will finish their stint, as the boys say, before the House has done. Their number is less, and they have matured the business in committee. Yet Mr. Madison has inserted, in his amendments, the increase of representatives, each State having two at least. The rights of conscience, of bearing (p. 181) arms, of changing the government, are declared to be inherent in the people. Freedom of the press, too. There is a prodigious great dose for a medicine. But it will stimulate the stomach as little as hasty-pudding. It is rather food than physic. An immense mass of sweet and other herbs and roots for a diet drink.

Veit, pp. 247–48.

2.2.5.13  Abraham Baldwin to Joel Barlow, June 14, 1789

A few days since, Madison brought before us propositions of amendment agreeable to his promise to his constituents. Such as he supposed would tranquillize the minds of honest opposers without injuring the system. viz. “That what is not given is reserved, that liberty of the press & trial by jury shall remain inviolable. that the representation shall never be less than one for every 30,000 &c. ordered to lie on the table.[”] We are too busy at present in cutting away at the whole cloth, to stop to do any body’s patching. There is no such thing as antifederalism heard of. R[hode] I[sland] and N[orth] C[arolina] had local reasons for their conduct, and will come right before long.

Veit, p. 250.

2.2.5.14  Henry Gibbs to Roger Sherman, July 17, 1789

… All Ambiguity of Expression certainly ought to be remov’d; Liberty of Conscience in religious matters, right of trial by Jury, Liberty of the Press &c. may perhaps be more explicitly secur’d to the Subject & a general reservation made to the States respectively of all the powers not expressly delegated to the general Government.

Veit, p. 263.

2.2.5.15  Pierce Butler to James Iredell, August 11, 1789

… If you wait for substantial amendments, you will wait longer than I wish you to do, speaking interestedly. A few milk-and-water amendments have been proposed by Mr. M[adison]., such as liberty of conscience, a free press, and one or two general things already well secured. I suppose it was done to keep his promise with his constituents, to move for alterations; but, if I am not greatly mistaken, he is not hearty in the cause of amendments.

Veit, p. 274.

2.2.5.16  Thomas Jefferson to James Madison, August 28, 1789

[T]he following alterations & additions would have pleased me. Art 4. “The people shall not be deprived or abridged of their right to speak to write or otherwise to publish any thing but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.

Hobson & Rutland, vol. 12, p. 363.

2.2.5.17  Theodorick Bland Randolph to St. George Tucker, September 9, 1789

… The house of Representatives have been for some time past engaged on the subject of amendments to the constitution, though in my opinion they have not made one single material one. The senate are at present engaged on the subject; Mr. Richd. H. Lee told me that he proposed to strike out the standing army in time of peace but could not carry it. He also said that it has been proposed, and warmly favoured that, liberty of Speach [sic] and of the (p. 182) press may be stricken out, as they only tend to promote licenciousness. If this takes place god knows what will follow.

Veit, p. 293.

2.3  Discussion of Rights

2.3.1  Treatises

2.3.1.1  Bacon, 1740

Libel.

A Libel is (a) defined a malicious Defamation, expressed either in Printing or Writing, or by Signs, Pictures, &c. tending either to blacken the Memory of one who is dead, or the Reputation of one who is alive, and thereby exposing him to publick Hatred, Contempt and Ridicule.1

But for the better Understanding the Nature of this Offence, I shall consider,

  1. (A)  What shall be said a Libel: And herein,

    1. 1.  How far it is necessary that it should be in Writing.

    2. 2.  What Degree of Defamation will amount to a Libel.

    3. 3.  What Certainty in the Matter and Application will make it a Libel.

    4. 4.  Whether any Proceedings in a Court of Justice will amount to a Libel.

    5. 5.  Whether any Thing of this Kind can be justified.

  2. (B)  Who shall be said a Libeller: And herein,

    1. 1.  Who shall be said the Author or Composer of a Libel.

    2. 2.  Who the Publisher.

  3. (C)  The Offenders how punished.

(a) what shall be said a libel: and herein,

1. how far it is necessary that it should be in writing.

THIS Species of Defamation is usually termed written Scandal, and thereby receives an Aggravation, in that it is presumed to have been entered upon with Coolness and Deliberation, and to continue longer, and propagate wider and farther than any other Scandal.2

But it is clearly agreed, that not only written or printed Scandal come within the Notion of a Libel, but also may be applied to any Defamation whatsoever, expressed either by Signs or Pictures; as by fixing up a Gallows at a Man’s Door, or elsewhere, or by Painting him in a (p. 183) shameful or ignominious Manner, as by exposing a Man and his Wife by a Skimmington or Riding, tho’ a special Custom is alledged for such Practice.3

And since the chief Cause, for which the Law so severely punishes all Offences of this Nature, is a direct Tendency of them to a Breach of publick Peace, by provoking the Parties injured, and their Friends and Families, to Acts of Revenge, which it would be impossible to restrain by the severest Laws, were there no Redress from publick Justice for Injuries of this Kind, which, of all others, are most sensibly felt; and since the plain Meaning of such Scandal, as is expressed by Signs or Pictures, is as obvious to common Sense, and as easily understood by every common Capacity, and altogether as provoking as that which is expressed by Writing or Printing, why should it not be equally Criminal?4

2. what degree of defamation will amount to a libel.

As every Person desires to appear agreeable in Life, and must be highly provoked by such ridiculous Representations of him, as tend to lessen him in the Esteem of the World, and take away his Reputation, which, to some Men, is more dear than Life itself : Hence it hath been held, that not only Charges of a flagrant Nature, and which reflect a Moral Turpitude on the Party, are libellous, but also such as set him in a scurrilous ignominious Light; for these equally create ill Blood, and provoke the Parties to Acts of Revenge and Breaches of the Peace.5

Hence it hath been held, that Words, tho’ not scandalous in themselves, yet if published in Writing, and tending in any Degree to the Discredit of a Man, are libellous, whether such Words defame private Persons only, or Persons employed in a publick Capacity; in which latter Case they are said to receive an Aggravation, as they tend to scandalize the Government, by reflecting on those who are intrusted with the Administration of publick Affairs, which doth not only endanger the publick Peace, as all other Libels do, by stirring up the Parties immediately concerned in it to Acts of Revenge, but also have a direct Tendency to breed in the People a Dislike of their Governors, and incline them to Faction and Sedition.6

As where a Person delivered a Ticket up to the Minister after Sermon, wherein he desired him to take Notice, that Offences passed now without Controul from the Civil Magistrate, and to quicken the Civil Magistrate to do his Duty, &c. and this was held to be a Libel, tho’ no Magistrates in particular were mentioned, and tho’ it was not averred that the Magistrates suffered those Vices knowingly.7

A. Gunsmith published an Advertisement in a common News-Paper, that he had invented a short Kind of Gun that shot as far as others of a longer Size, and that he was made Gunsmith to the Prince of Wales; and B. another Gunsmith, counter-advertised, That whereas, &c. reciting the former Paragraph, he desired all Gentlemen to be cautious, for that the said A. durst not engage with any Artist in Town, nor ever did make such an Experiment, except out of a Leather Gun, as any Gentleman might be satisfied at the Cross Guns in Long-Acre, the said B.’s House. And the Court held, that tho’ B. or any other of the Trade, might counter-advertise what was published of A. yet that that should have been done without any general Reflections (p. 184) on him in the Way of his Business; that the Advice to all Gentlemen to be cautious, was a Reflection on his Honesty, as if he would deceive the World by a fictitious Advertisement, and the Allegation, that he would not engage with an Artist, was setting him below the rest of his Trade, and calling him a Bungler in general Terms, and not relative to the precedent Matter, and that the Words except out of a Leather Gun, was charging him with a Lye, the Word Gun being vulgarly used for a Lye, and Gunner for a Lyar; and that therefore these Words were libellous, and gave Judgment accordingly; and herein the Court held, that Words, tho’ not scandalous in themselves, yet being published in Writing, and tending any way to the Party’s Discredit, were actionable, and that all Words were to be construed secundum Subjectam Materiam, and to be understood by the Court in the same Sense that others do.8

But tho’ every Species and Degree of Calumny and Detraction of this Kind are deemed odious in the Eye of the Law, and punishable either by Civil Action or Criminal Prosecution, in most Cases, at the Election of the Party injured; yet the Court of King’s Bench, whose Jurisdiction herein is founded upon the Necessity of preventing Quarrels and ill Blood, and which deals with this Offence as of dangerous Consequence to, and destructive of the Peace of the Nation, always exercises a discretionary Power in granting an Information for an Offence of this Nature, and will, in many Cases, leave the Party to his ordinary Remedy; as where the Application is made (a) after a great Length of Time; so (b) where the Matter complained of as a Libel happens to be true; so (c) where the Granting the Information would be a Discouragement to learned Inquiries; or (d) where the Matter complained of was intended for Reformation, not Defamation.9

So where a Man advertised in a publick News-paper, that his Wife had eloped from him, and cautioned all Persons from trusting her, and an Information for a Libel being moved for, it was denied, because it was the only Way the Husband could take to secure himself.10

So where it was advertised in one of the Daily Papers, that Lady Mordington kept an Assembly in Moor-fields, and it being counter-advertised, by my Lord’s Order, that the Person calling herself Lady Mordington was an Impostrix, and that there was no such Person except his Wife, who always lived with him; the Court refused to grant an Information; for tho’ she be called an Impostrix, yet that relates to her as assuming the Title of Lady Mordington, and which she is alledged not to have any Right to; and therefore in this Respect may well be called an Impostrix.11

A Writing was directed to General Wills, and the four principal Officers of the Guards, to be presented to his Majesty for Redress; the Paper contained the Defendant’s Case, that (p. 185) he furnished the Guard at Whitehall with Fire and Candle, for which the Government owed him 350 l. that he obtained a Warrant for his Money, and Captain Carr (the Prosecutor) told him, that if he would assign the Warrant, he would procure him the Money; the Warrant was assigned, and the Money paid to Carr, who refused paying it to the Defendant; and the Question was, if an Information should be granted; and the Court held it no Libel, but a Representation of an Injury, drawn up in a proper Way for Redress, without any Intention to asperse the Prosecutor; and tho’ there be a Suggestion of a Fraud, yet that is no more than what is in every Bill in Chancery, which was never held libellous, if relative to the Subject Matter.12

Here it may be proper to insert the remarkable Case of Parson Prick, who in a Sermon recited a Story out of Fox’s Martyrology, that one Greenwood, being a perjured Person, and a great Persecutor, had great Plagues inflicted on him, and was killed by the Hand of God; whereas in Truth he was never so plagued, and was himself present at that Sermon; and he thereupon brought his Action upon the Case, for calling him a perjured Person; and the Defendant pleaded Not guilty; and this Matter being disclosed upon the Evidence, Wray Chief Justice delivered the Law to the Jury, that it being delivered but as a Story, and not with any Malice or Intention to slander any Person, he was not guilty of the Words maliciously, and so was found not guilty.13

3. what certainty in the matter and application will make it a libel.

It seems to be now agreed, that not only Scandal expressed in an open and direct Manner, but also such as is expressed in Allegory and Irony amounts to a Libel, and that the Judges are to understand it in the same Manner as others do, without any strained Endeavours to find out Loopholes, or to palliate the Offence, which in some Measure would be to encourage Scandal; as where a Writing in a taunting Manner, reckoning up several Acts of publick Charity done by one, says, You will not play the Jew, nor the Hypocrite, and so goes on, in a Strain of Ridicule, to insinuate, that what he did was owing to his Vain-glory; or where a Writing, pretending to recommend to one the Characters of several great Men for his Imitation, instead of taking Notice of what they are generally esteemed famous for, pitched on such Qualities as their Enemies charge them with the Want of; as by proposing such a one to be imitated for his Courage, who is known to be a great Statesman, but no Soldier, and another to be imitated for his Learning, who is known to be a great General, but no Scholar, &c. which Kind of Writing is as well understood to mean only to upbraid the Parties with the Want of these Qualities, as if it had directly and expresly done so.14

And from the same Foundation it hath also been resolved, that a defamatory Writing expressing only one or two Letters of a Name, in such a Manner that from what goes before, and follows after, it must needs be understood to signify such a Person in the plain, obvious, and natural Construction of the Whole, and would be perfect Nonsense if strained to any other Meaning, is as properly a Libel as if it had expressed the whole Name at large; for it brings the utmost Contempt upon the Law, to suffer its Justice to be eluded by such trifling (p. 186) Evasions; and it is a ridiculous Absurdity to say, that a Writing, which is understood by every the meanest Capacity, cannot possibly be understood by a Judge and Jury.15

But it is said, that no Writing whatsoever is to be esteemed a Libel, unless it reflect upon some particular Person; and that a Writing full of obscene Ribaldry, without any kind of Reflection on any one, is not punishable at all by any Prosecution at Common Law, but the Author may be bound to his good Behaviour, as a scandalous Person of evil Fame.16

But a Scandal published of three or four, or any one or two of them, is punishable, at the Complaint of one or more, or all of them.17

The Defendant was charged in an Information with writing a Libel against the Protestant Religion and Bishops, Inuendo the Bishops of England; he was found guilty; and in Arrest of Judgment it was offered, that the Bishops libelled were not English Bishops, nor could the Inuendo support such Construction; but the Court took upon them to understand the Libel in that Sense, and over-ruled the Exception.18

An Information was prayed for publishing a Paper containing an Account of a Murder on a Jewish Woman and her Child, by certain Jews lately arrived from Portugal, and living near Broadstreet, because the Child was begotten by a Christian; and the Affidavit set forth, that several Persons mentioned therein, who were recently arrived from Portugal, and lived in Broadstreet, were attacked by Multitudes in several Parts of the City, barbarously treated, and threatened with Death, in case they were found abroad any more; and it was objected, that no Information could be granted in this Case, because it did not appear who in particular the Persons reflected on were; and for this was cited The King versus Orme, Trin. 11 W 3. where an Indictment was exhibited for a Libel called The Ladies Invention, and alledged to be to the Scandal of several Ladies unknown, and after Verdict for the King Judgment was arrested, because it did not appear who the Persons reflected on were; sed per Cur. admitting that an Information for a Libel may be improper, yet the Publication of this Paper is deservedly punishable in an Information for a Misdemeanor, and that of the highest Kind; such Sort of Advertisements necessarily tending to raise Tumults and Disorders among the People, and inflame them with a universal Spirit of Barbarity against a whole Body of Men, as if guilty of Crimes scarce practicable, and wholly incredible; and in this Case was cited the Case of The King and Franklin, where tho’ only the Words Ministers were used in the Libel, yet by suitable Averments in the Information, and Proof made of them to the Jury, they found those Ministers to be Ministers of State to his present Majesty, and the Defendant guilty.19

4. whether any proceedings in a court of justice will amount to a libel.

It seems to be clearly agreed, that no Proceeding in a regular Course of Justice will make the Complaint amount to a Libel; for it would be a great Discouragement to Suitors to subject them to publick Prosecutions, in respect of their Applications to a Court of Justice; and the chief Intention of the Law in prohibiting Persons to revenge themselves by Libels, or any other private Manner, is to restrain them from endeavouring to make themselves their own (p. 187) Judges, and to oblige them to refer the Decision of their Grievances to those whom the Law has appointed to determine them.20

Therefore it hath been resolved, that no false or scandalous Matter contained in (a) a Petition to a Committee of Parliament, or in (b) Articles of the Peace exhibited to Justices of Peace, are libellous.21

Also it is held, that no Presentment of a Grand Jury can be a Libel, not only because Persons who are supposed to be returned without their own seeking, and are sworn to act impartially, shall be presumed to have proper Evidence for what they do, but also because it would be of the utmost ill Consequence any way to discourage them from making their Inquiries with that Freedom and Readiness which the publick Good requires.22

Also it is holden by some, that no Want of Jurisdiction in the Court to which such a Complaint shall be exhibited will make it a Libel; because the Mistake of the Court is not imputable to the Party, but his Counsel; but herein it is said by Hawkins, that if it shall manifestly appear from the whole Circumstances of the Case, that a Prosecution is intirely false, malicious, and groundless, and commenced not with a Design to go thro’ with it, but only to expose the Defendant’s Character, under the Shew of a legal Proceeding, there can be no Reason why such a Mockery of publick Justice should not rather aggravate the Offence than make it cease to be one, and make such Scandal a good Ground of an Indictment at the Suit of the King, as it makes the Malice of their Proceeding a good Foundation of an Action on the Case at the Suit of the Party, whether the Court had a Jurisdiction of the Cause or not,23

5. whether any thing of this kind can be justified.

It seems to be clearly agreed, that in an Indictment or Criminal Prosecution for a Libel the Party cannot justify that the Contents thereof are true, or that the Person upon whom it is made had a bad Reputation; since the greater Appearance there is of Truth in any malicious Invective, so much the more provoking it is; for, as my Lord Coke observes, in a settled State of Government the Party grieved ought to complain for every Injury done him, in the ordinary Course of Law, and not by any Means to revenge himself by the odious Course of Libelling, or otherwise.24

Also it seems now settled, that no Scandal in Writing is any more justifiable in a Civil Action brought by the Party to vindicate the Injury done him, than in an Indictment or Information at the Suit of the Crown; for tho’ in Actions for Words the Law, thro’ Compassion, admits the Truth of the Charge to be pleaded as a Justification, yet this Tenderness of the Law is not to be extended to written Scandal, in which the Author acts with more Coolness, and Deliberation gives the Scandal a more durable Stamp, and propagates it wider and further; whereas in Words Men often in a Heat and Passion say Things which they are afterwards ashamed of, and tho’ they seem to act with Deliberation, yet the Scandal sooner dies away, and is forgotten; and therefore from the greater Degree of Mischief and Malice attending the one than the other, the Law allows the Party to justify in an Action for Words; tho’ not for written Scandal; from whence it follows, that the only Favour Truth affords in such a Case (p. 188) is, that it may be shewn in Mitigation of Damages in an Action, and of the Fine upon an Indictment or an Information.25

(b) who shall be said a libeller: and herein,

1. who shall be said the author or composer of a libel.

IT has been already observed, that a Libel may be expressed not only by Printing or Writing, but also by Signs or Pictures; but it seems that some of those Ways are essentially necessary; and it is laid down in Lamb’s Case, that every Person convicted of a Libel must be the Contriver, Procurer or Publisher thereof.26

It hath been strongly urged, that he who writes a Libel, dictated by another, is not guilty of the Composing and Making thereof, because it appears that another is the Author or Contriver; but herein the Court held, that the Writing being the essential Part of a Libel, the Reducing it into Writing, in the first Instance, was a Making, and differed from a Transcribing; and, according to the Report of this Case, in 5 Mod. it was held, that if (a) one dictates, and another writes, both are guilty of making it, for he shews his Approbation of what he writes. So if one repeats, another writes a Libel, and a third approves what is written, they are all Makers of it, as all who concur and assent to the doing of an unlawful Act are guilty; and murdering a Man’s Reputation by a Libel, may be compared to murdering a Man’s Person, in which all who are present and encourage the Act are guilty, tho’ the Wound was given by one only.27

Also it hath been held, that Transcribing and Collecting libellous Matter is highly Criminal, tho’ it be not found that the Party composed or published it; for his having it in Readiness for that Purpose when Occasion served, or its falling into such Hands after his Death as may publish it, might be injurious to the Government.28

It is said by Holt Chief Justice, that when a Libel appears under a Man’s Hand-writing, and no other Author is known, he is taken in the Manner, and it turns the Proof upon him; and if he cannot produce the Composer, it is hard to find that he is not the very Man.29

And it is said to have been resolved by the Court, that in Libels Making is the Genus, Composing or Contriving is one Species, Writing a second Species, and Procuring to be written a third Species; and finding a Man guilty of Writing only, is finding him guilty of one Species of making.30

But yet in some Cases the Writing of a Libel may be a lawful or innocent Act, as by the Clerk that draws the Indictment, or by a Student who takes Notes of it, because it is not done ad Infamiam of the Party; but abstractly considered, the Writing a Copy of a Libel is Writing a Libel, because such Copy contains all Things necessary to the Constitution of a Libel, viz. the scandalous Matter, and the Writing; and it has the same pernicious (p. 189) Consequence, for it perpetuates the Memory of the Thing, and some Time or other comes to be published.31

2. who the publisher.

It seems to be agreed, that not only he who publishes a Libel himself, but also he who procures another to do it, is guilty of the Publication; and it is held not to be material, whether he who disperses a Libel knew any Thing of the Contents or Effects of it or not, for that nothing would be more easy than to publish the most virulent Papers with the greatest Security, if the Concealing the Purport of them from an illeterate [sic] Publisher would make him safe in dispersing them.32

And on this Foundation it hath been constantly ruled of late, that the buying of a Book or Paper, containing libellous Matter, in a Bookseller’s Shop, is sufficient Evidence to charge the Master with the Publication, altho’ it does not appear that he knew of any such Books being there, or what the Contents thereof was; and it will not be presumed that it was brought and sold there by a Stranger, but the Master must, if he suggests any Thing of this Kind in his Excuse, prove it.33

The Reading of a Libel in the Presence of another, without knowing it before to be a Libel, or the Laughing at a Libel read by another, or the Saying that such a Libel is made of J. S. whether spoken with or without Malice, amounts not to a Publication of it.34

Also it is held, that he who repeats Part of a Libel in Merriment, without any Malice or Purpose of Defamation, is no way punishable; but of this Hawkins makes a Doubt, for that Jests of this Kind are not to be endured, and the Injury to the Reputation of the Party grieved is no way lessened by the Merriment of him who makes so light of it.35

But it seems to be agreed, if he who hath either read a Libel himself, or hath heard it read by another, do afterwards maliciously read or repeat any Part of it in the Presence of others, or lend or shew it to another, he is guilty of an unlawful Publication of it.36

It is said by my Lord Coke in the Case de Libellis Famosis, to have been resolved, that if one finds a Libel, (and would keep himself out of Danger) if it be composed against a private Man, the Finder may either burn it, or presently (a) deliver it to a Magistrate; but if it concern a Magistrate, or other publick Person, the Finder ought presently to deliver it to a Magistrate, to the Intent that by Examination and Industry the Author may be found out and punished.37

It seems to be a Matter of Doubt, whether the Sending an abusive Letter, filled with provoking Language, to another, will bear an Action as for a Libel, because here is no Publication; but it seems to be clearly agreed, that the Sending such Letter, without other Publication, is an Offence of a publick Nature, and punishable as such, in as much as it tends to create ill Blood, and causes a Disturbance of the publick Peace; and if the bare Making of a Libel be an (p. 190) Offence, whether it be published or not, as it seemeth to be holden, surely the Sending of it to the Party reflected on must be a much greater Crime.38

And on this Foundation the Court of King’s Bench granted an Information against a Person for sending an abusive Letter to Mr. Bernardiston, therein calling him Rascal and Fool; altho’ he swore that he wrote this to the Party himself, and never made it publick, being only a Piece of private Resentment; but the Court held, that this Method provoked Persons to Duelling, that the Writing and Sending was a good Publication, and that the Intent of the Party shall not be explained by himself.39

If one deliver a Paper full of Reflections on any Person, in Nature of a Petition to a Committee of Parliament, to any other Persons except the Members of Parliament, he may be punished as the Publisher of a Libel, in respect of such Dispersing thereof among those who have nothing to do with it.40

But it hath been held, that the bare Printing of a Petition to a Committee of Parliament, (which would be a Libel against the Party complained of, if it were made for any other Purpose than as a Complaint in a Course of Justice,) and Delivering Copies thereof to the Members of the Committee, shall not be looked upon as the Publication of a Libel, in as much as it is justified by the Order and Course of Proceedings in Parliament, whereof the King’s Courts will take Judicial Notice.41

(c) the offenders how punished.

THERE can be no Doubt but that a Person who writes or publishes a Libel is subject to the Action of the Party injured, in which Damages shall be recovered; and that being convicted on an Indictment or Information, shall pay such Fine, and also suffer such Corporal Punishment, as to the Court, in Discretion, shall seem proper, according to the Heinousness of the Crime and the Circumstances of the Offender.42

Bacon Abridgement, vol. III, pp. 490–98.

2.3.1.2  Viner, 1743

Libel.

(a) what is a libel.

  1. 1.  J. S. was libelled against, for Incontinency, and A. B. C. and D. maliciously repeated a great Part of it in the Presence of several. They were censur’d for this in the Star-Chamber, tho’ there was no Proof that C. and D. made the Libel, or that they assented or were Privies to the making of it. But saying that the Libel is made of [such a] one, tho’ he speaks it with Malice, without repeating any Part of it, is not punishable; nor to * repeat Part of it in Merriment, without Malice, or any purpose of Defamation; and the Court held, that a Libeller was punishable, tho’ the Matter of the Libel is true. Mo. 627. Mich. 43 & 44 Eliz. in the Star-Chamber. Want’s Case.1

  2. (p. 191) 2.  Every Infamous Libel either is in writing, or without writing. That in writing is, when an Epigram, Rhithme &c. is composed or published to the Contumely of another, by which his Fame or Dignity may be prejudiced. This may be by Words or Ballads. 1. As where it is maliciously sung in the Presence of others. 2. By giving it over to another to scandalize the Party. Without writing, may be by Pictures, as painting him in an Ignominious Manner. 2. By Signs, as fixing a Gallows &c. at his Door or elsewhere. 5 Rep. 125. b. Pasch. 3 Jac. The Case De Libellis Famosis.

  3. 3.  A. being very old, and having a good Estate, which he intended to settle on B. who was his Heir General, J. S. who had married a Niece of A. wrote a Letter to A. that B. was not the Son of one of the Name of A. and was a Haunter of Taverns, and that divers Women followed him from London to his House and desired to hear of A’s Death, and that all his Estate would not pay his Debts &c. And sign’d it, and sent it sealed and directed to A. This was held to be a Libel, and J. S. was fin’d 200 l. and B. left at Liberty to bring his Action at Law. 2 Brownl. 151. Pasch. 10 Jac. C. B. Peacock v. Sir Geo. Reynell.2

  4. 4.  A. wrote an infamous, scandalous &c. Letter to B. and subscribed his Name, and sealed and directed it, To his Loving Friend Mr. B and added, Speed this. And after dispersed great Numbers of Copies. Resolved by Ld. C. Egerton, and the 2 Ch. J. and per tot. Cur. that the said Letter, which in Law is a Libel, shall be punished (tho’ it was solely writ to the Plaintiff himself without any Publication) in the Star-Chamber; For it is a great Offence to the King, and tends to breaking the Peace, and therefore necessary to be punished by Indictment, or in the Star-Chamber; But the dispersing Copies, or publishing the Effect of it aggravates the Offence; for which the Party may have an Action on the Case. 12 Rep. 35. Edwards v. Wootton.—— In this Case Ld. Cook said, that a Person libelling himself, is punishable by the Civil Law, and it seemed to him, that he should be so in the Star-Chamber. Ibid.3

  5. 5.  A. made Addresses to M. whom he afterwards married; one J. S. during the Courtship, wrote a Letter to M. advising her not to marry A. For that he is a Debauchee, and has the (p. 192) Pox, and is not worth a Groat, but has declared, that if he marries her, he will allow 50 l. a Year to a Whore. This Letter was not subscribed, but conveyed to M. but it appeared upon Evidence, that all this was by J. S. But notwithstanding, it was held a Matter indictable. Sid. 270. Trin. 17 Car. 2. B. R. The King v. Summer and Hilliard.4

  6. 6.  The Printing a Charge of Extortion in his Office, against the Vicar-General of the Bishop of L. and delivering it to several Members of the Committee of Parliament for Examination of Grievances is justifiable; but if he had delivered it to others it had been otherwise; and the Printing them, which is a Publishing of them to the Printers and Composers, is not so great a Publication, as to have so many Copies transcribed by several Clerks. Lev. 240. Trin. 20 Car. 2. B. R. Lake v. King.5

  7. 7.  C. forged an Order of Chancery, in which were several defamatory Expressions against the Plaintiff, and at the End draws a Pillory, and subscribes it for Sir J. H. and his forsworn Witnesses by him suborned; this is but one complicated Act, and an Action will lie. Skin. 123. Sir John Austin v. Col. Culpepper.6

  8. 8.  A. being chose Church-warden, was tendered an Oath Ex Officio, viz. to present every Parishioner &c. some of which Articles concerned A. himself, and was Excommunicated for Refusal; and thereupon had a Prohibition, of which he caused 2000 to be printed in English, and dispersed them all over the Kingdom, intituling them, A true translated Copy of a Writ of Prohibition, granted by the Ld. Ch. J. and other, the Justices of the Court of C. B. in Easter-Term 1676, against the Bishop of C. who had proceeded against, and Excommunicated, one T. W. a Church-warden for refusing to take the Oath usually tendered to Persons in such Office, by which Writ the Illegality of such Oaths is declared, and the said Bishop commanded to take off his Excommunication. The Court declared this to be a most seditious Libel, and gave Order to enquire after the Printer, that he might be prosecuted. 2 Mod. 118, 119. Mich. 28 Car. 2. C. B. Waterfield v. the Bishop of Chichester.

  9. 9.  In a Special Action on the Case the Plaintiff declares, that he is an Hackney Coachman, and the Defendant, with Intent to disgrace him, did ride Skimmington, and describes (p. 193) how, thereby surmising, that his Wife had beat him, and by Reason thereof Persons, who formerly used him, refused to come into his Coach, ad Damnum. Upon Not Guilty, it was found for the Plaintiff, and upon Motion in Arrest of Judgment, Judgment was Quod Querens Nil capiat per Billam. Raym. 401. Trin. 32 Car. 2. B. R. Mason v. Jennings.7

  10. 10.  A Libel consists not in Words and scandalous Matter only; for that is not of itself sufficient, tho’ spoken with never so much Malice; but it is the putting in writing, or procuring to be put in Writing; for if the Words are not written, he is not guilty of the Libel. 12 Mod. 219. Mich. 10 W. 3. the King v. Beere.8

  11. 11.  The taking the Copy of a Libel is a Libel, because it comprehends all that is necessary to the making of a Libel; it hath the same scandalous Matter in it, and the same mischievous Consequences attending it at first; For it is by this Means perpetuated, and it may come into the Hands of other Men, and be published after the Death of the Copyer; and if Men might take Copies with Impunity, by the same Reason, printing of them would be no Offence; and then farewel to all Government. 12 Mod. 220. the King v. Beere.9

  12. 12.  In Action on the Case upon a Libel it is sufficient if the Matter is reflecting; as To paint a Man playing at Cudgels with his Wife; per Holt Ch. J. 11 Mod. 99. Mich. 5 Annae. Anon.

  13. 13.  A Defamatory Writing, expressing only one or two Letters of a Name, in such a Manner, that from what goes before, and follows after, it must needs be understood to signify such a particular Person in the plain, obvious and natural Construction of the Whole, and would be perfect Nonsence if strained to any other meaning, is as properly a Libel, as if it had expressed the whole Name at large; for it brings the utmost Contempt unto the Law, to suffer its Justice to be eluded by such trifling Evasions : And it is a ridiculous Absurdity to say, that a Writing, which is understood by every the meanest Capacity, cannot possibly be understood by a Judge and Jury. 2 Hawk. Pl. C. 194. cap. 73. S. 5.

  14. 14.  It seems clear, That no writing whatsoever is to be esteemed a Libel, unless it reflect upon some particular Person; and it seems, that a Writing full of obscene Ribaldry, without any kind of Reflection upon any one, is not punishable at all by any Prosecution at Common Law, as I have heard it agreed in the Court of King’s Bench; yet it seems, that the Author may be bound to his Good Behaviour, as a scandalous Person of evil Fame. 2 Hawk. Pl. C. 195. cap. 73. S. 9.

(b) who shall be said to be maker, contriver, or publisher. or be punished as such.

  1. 1.  HE who disperses Libels, tho’ he does not know the Effect of them nor ever heard them read, is punishable. Mo. 627. Mich. 43 & 44 Eliz. in the Star-Chamber. In Want’s Case.

  2. (p. 194) 2.  Jurors at a Wardmote Inquest presented J. S. for Incontinency, for which J. S. complained of them in the Star-Chamber. But the Court would not examine the Cause against them; because the Precedent would be dangerous, to draw into the Star-Chamber Jurors for their Inquests. Mo. 627. Want’s Case.

  3. 3.  Resolved in a Case of Libels. 1. The Procurer, and also the Writer are both Contrivers. 2. The Procurer of another to publish the Libel, and the Publisher himself, are both of them Publishers. 3. The Reading a Libel, not knowing it to be a Libel, is not publishing. 4. He that writes the Copy of the Libel by the Commandment of his Master or his Father, is not a Publisher. 5. He that Laughs when he hears another read a Libel, is not a Publisher if he does no more. 6. He that lends a Libel to be copied, or he that * repeats the Libel, or any Part of it, or shews the Contents of it, or any Part of it, knowing it to be a Libel, is a Publisher. So if one writes the Copy by Commandment of his Master or Father, and then carries it to another, he is a Publisher. Mo. 813. Mich. 8 Jac. Lamb’s Case.10

  4. 4.  If a Libel be made in Writing, and afterwards burnt, and one remembers the Contents, and dictates to another who writes it, the Writer is the Maker of a Libel. He that takes a Copy of a Libel in Writing, tho’ he be not the Author, is guilty of making a Libel; per Holt Ch. J. Cumb. 359. Hill. 8 W. 3. B. R. the King v. Pain.11

  5. 5.  If a Libel be publickly known, having a written Copy of it is Evidence of a Publication; but otherwise where it is not known to be published. per Holt Ch. J. Hill. 10 W. 3. B. R. 2 Salk. 418. the King v. Bear.

(c) punished how. and what ought to be done with libels when met with.12

  1. 1.  A.R. was indicted in the King’s Bench, for the making of a Libel in Writing in the French Tongue against R. of S. calling him therein, Roy de Raveners &c. Whereupon he, being arraigned, pleaded thereupon Not Guilty, and was found Guilty, as by the Records appeareth. So as a Libeller, or a Publisher of a Libel, committeth a publick Offence, and may be indicted therefore at the Common Law. 3 Inst. 174. cites Mich. 10 E. 3.

  2. 2.  J. N. an Attorney of the King’s Bench, wrote a Letter to J. F. one of the King’s Council, that neither Sir W. S. Chief Justice, nor his Fellows the King’s Justices, nor their Clerks, any great Thing would do by the Commandment of our Lord the King, nor of Queen Philip in that Place, more than of any other of the Realm; which said John, being called, confessed the said Letter by him to be written with his own proper Hand; Judicium Curiæ, et quia prædictus Johannes cognovit dictam literam per se scriptam Roberto de Ferrers, qui est de (p. 195) Concilio Regis, quæ litera continet in se nullam veritatem, Prætextu cujus Dominus Rex erga Curiam & Justiciarios suos hoc in casu habere posset Indignationem, quod esset in scandalum Justic. & Curiæ; Ideo dictus Johannes committitur Maresc. & postea invenit 6 Manucaptores pro bono gestu. 3 Inst. 174. cap. 76. cites Mich. 18 E. 3.13

  3. 3.  If one finds a Libel against a private Man, he may either burn it, or deliver it to a Magistrate immediately; But if it concerns a Magistrate, or other Publick Person, he ought immediately to deliver it to a Magistrate, that the Author may be found out. 5 Rep. 125. b. cites it as resolved Mich. 43 & 44 Eliz. in the Star-Chamber, in Halliwood’s Case.14

  4. 4.  One was prosecuted in the Star-Chamber for composing and publishing an Infamous Libel in Meter, scandalizing a deceased and present Archbishop of Canterbury. It was resolved, 1. That every Libel, (called Famosus Libellus, or Intamatoria Scriptura) made against a private Person deserves a severe Punishment; Because it provokes all the Family of that Person to Revenge &c. If it be against a Magistrate, it concerns not only the Peace, but scandalizes the Government. 2. It is punishable, notwithstanding the Person scandalized be dead at the Time. 3. A Libeller called (Famosus Defamator) shall be punished, either by Indictment at Common Law or by Bill if be deny it, or Ore tenus upon Confession, in the Star-Chamber, and that according to the Greatness of his Offence, it may be by Fine and Imprisonment, and if the Case be exorbitant, by Pillory and Loss of Ears. 4. It is not material, whether it be true or not, or of what Fame the Party libelled is. 5 Rep. 125. Pasch. 3 Jac. The Case De Libellis Famosis.

  5. 5.  One was indicted for exhibiting an Infamous Libel directed to the King against Coke the Ch. J. of B. R. and the Court for a Judgment given in the said Court in Magdalen Colledge Case, affirming the said Judgment to be Treason, and calling the Chief Justice Traytor, perjured Judge, and scandalizing all the Professors of the Law: And this Libel, he fixed upon the great Gate entring Westminster-Hall, and divers other Places. And being arraigned, he put in a scandalous Plea, affirming he would not plead otherwise. It was adjudged, that he should be committed to the Marshal, stand upon the Pillory with Paper mentioning the Offence, and be imprisoned till he submit himself to every Court, be bound to his Good Behaviour with Sureties during Life, and pay 1000 l. Fine to the King. Cro. C. 175. Mich. 5 Car. B. R. Jeff’s Case.

  6. 6.  An Information was exhibited against A. B. for causing to be framed, printed, and published, a scandalous Libel intitled &c. thereby scandalizing of one C. D. Upon Not Guilty pleaded it appeared upon the Evidence, that two of these Libels printed were found at the Lodgings of the Defendant upon Warrants from the Principal Secretary of State to search there, he being suspected to be the Contriver of it. The Opinion of the Court was, That this was no Crime within the Information, though he gave no Account how they came there; and the having of a Libel, and not delivering of it to a Magistrate, was only punishable in the Star-Chamber, unless the Party maliciously * published it. Vent. 31. Pasch. 21 Car. 2. B. R. Anon.15(p. 196)

(d) what is the distinct power of the court, and of the jury, as to libels.

  1. 1.  IN an Information for a Libel, it was urged, that the only Thing to be examined by the Court is, whether the Paper published contain any Libellous Matter; For then the Application must be left to the Jury. But per Cur. This Rule is not to be taken so extensively; For where the Application is merely indifferent, we will not grant an Information, but there must be a seeming and apparent Application to be made. Gibb. 57. Pasch, 2 Geo. 2. B. R. the King v. Butcheler.

(e) pleadings &c.

  1. 1.  An Indictment was for composing, writing, making, and collecting several Libels in uno quorum continetur inter alia juxta Tenorem & ad Effectum sequentem, and then sets forth the Words. Upon Not Guilty, the Jury found the Defendant Guilty as to the Writing and Collecting prout in Indictamento supponitur, & quoad omnia alia praeter Scriptionem & Collectionem Not Guilty. Exception was taken, that (Inter alia) shew’d there was somewhat else, which perhaps might, if it appeared, qualify the Rest. But per Cur. non allocator; For then he could not be found Guilty; and if any thing qualifies that which is set forth, it must be given in Evidence. 2. It was agreed, that ad Effectum sequentem of itself had been naught; For the Court must judge of the Words themselves, and not of the Construction which the Prosecutor puts upon them; But the Words (ad Effectum) were corrected by the Words (Juxta * Tenorem) which imports the very Words themselves. 3. It was held, that the finding him Guilty of the bare Writing and Collecting is Criminal; not but that Collecting had better been out of the Case; And it being objected, that Defendant being found Guilty of Collecting and Writing, and not of making and composing, the Verdict is Repugnant, or an Acquittal, Non allocator; For Making is the Genus, and Composing and Contriving is one Species, and Writing a second Species, and procuring to be written a third Species; so that not finding him guilty of all, but Writing only, is finding him not guilty of any Species of making but writing. 2 Salk. 417. Hill. 10 W. 3. B. R. The King v. Bear.16

  2. 2.  A Man may justify in an Action on the Case for a Libel; but otherwise in an Indictment; per Holt Ch. J. 11 Mod. 99. Mich. 5 Annae. Anon.

  3. 3.  Upon a Motion for an Attachment against the Defendant for publishing a Libel on the Court of B. R. and a Rule made upon him to shew Cause why it should not be granted, it was moved to discharge that Rule upon an Affidavit that his Fault was not wilful, but (p. 197) meerly thro’ ignorance; that he had the Libel from one C. a Printer in C. that it was in Latin, which he did not understand, and that he did not know who was the Author, otherwise than by a Letter which he received from the Printer, and which was now annexed to his Affidavit; by which Letter it appeared, that one Dr. Middleton was the Author; so that having shewed how he came by this Libel, and having told all that he knew of the Author, for that Reason it was insisted in his Behalf, that the Rule should be discharged, and that the Printer should be prosecuted; but the Rule was continued on the Defendant until he made out his Allegation against the Printer, who was therefore joined in the Rule, that both of them might be before the Court. In the next Term Dr. Middleton appeared and confessed in Court, that he was the Author of the Book; and thereupon the Rule was discharged against the Defendant and the Printer, and the Doctor was committed till further Consideration of the Matter; and afterwards he was fined 50 l. and bound to his Good Behaviour for a Year, and so was Dr. Colebatch the same Term, for the like Offence. 8 Mod. 123. Pasch. 9 Geo. the King v. Wiatt.

  4. 4.  Information for a Libel was in the Disjunctive, viz. Scripsit seu scribi causavit, and held not good. 8 Mod. 328. Mich. 11 Geo. the King v. Brereton.

(f) publication. what.

  1. 1.  WRiting the Copy of a Libel is not a Publication thereof, but only an Evidence of a Publication; per Holt Ch. J. 12 Mod. 220. cites Mo. 813 and 9 Rep. 59. b. Dr. Lamb’s Case; and says the writing the original Libel it self is the same; and if a Publication of it has been proved, it is Evidence that the Publication was by him that had it in his Custody.

Viner Abridgment, vol. 15, pp. 84–91.

2.3.1.3  Jacob, 1750

Libel, signifies a scandalous Report of a Person spread abroad or otherwise unlawfully published, and thereupon is called in our law an infamous Libel. And a Libel may be either in Writing, or without it: In Writing, is when any Thing is written and published to the Disgrace of another; and without Writing, is where a Person is painted out in a scandalous Manner, with Asses Ears, a Fool’s Coat, &c. or where any ignominious Sign is fixed at a Person’s Door, such as a Gallows, &c. 3 Inst. 174. A Libel in general may be defined to be a malicious Aspersion of another, signified in Printing or Writing; and which tends to the Blackening the Memory of one that is dead, or the Reputation of one that is living, in Order to expose him to publick Contempt, Hatred, or Ridicule: And a Libel may be extended to any Defamation whatsoever. 5 Rep. 121. Printing or Writing, tho’ the Scandal is not directly charged, but on the contrary in an oblique or ironical Manner, has been held to be a Libel. A Defamatory Writing, that expresses only one or two Letters of a Man’s Name, if from what precedes and follows it, by the Natural Construction of the whole it must be understood to signify and point at such a particular Person, is as properly a Libel as if the whole Name of the Person were mentioned at large. 1 Hawk. P. C. 194. Libels are Criminal for this Reason, that where any Libel is made against a private Man, it may be a Means to excite the libelled Person, or his Friends, to Revenge, and consequently to break the Peace; and where the Libel is against a Magistrate, it is not only a Breach of the Peace, but also a Scandal to the Government. 5 Rep. 125. It is said, that tho’ a private Person or Magistrate be dead at the Time of making the Libel, yet the Offence may be punished, as it tends to the Breach of (p. 198) the Peace. Hob. 214. With Regard to this, it is no Justification of a Libel, that it’s Contents are true, or that the Person libelled had a bad Reputation, for the greater Appearance there is of Truth in a Libel, the more provoking it is. Moor 627. It is held, that in a Prosecution on an Indictment or Information, it is not material whether the Matter of Libel be true or false; but in an Action upon the Case a Defendant may justify that the Matter is true. Hob. 253. If a Printer prints a Libel against a private Person, he may be indicted and punished for it: Where Persons write, print, or sell any Pamphlets or other Treatises reflecting on the Publick, or any private Person, such libellous Treatise may be seised, and the Persons concerned therein punished, Writers of false News are likewise indictable and punishable. State Tri. Vol. 2. A general Reflection on the Government is a Libel; Yet it has been adjudged, that no Writing is esteemed a Libel, unless it reflect upon some particular Person; for where a Writing inveighs against Mankind in general, or against a particular Order of Men, it is no Libel, as it does not descend to Particulars. 11 W. 3. B. R. 1 Hawk. 195. Where one accidentally finds a Libel, he ought to burn it, or deliver it to a Magistrate: In Case such Libel be found in a Person’s House, he cannot be punished for Framing, Printing and Publishing the same; but ’tis said he may be indicted for having it, and not delivering it to some Magistrate. 1 Ventr. 31. The sending a scandalous Letter to the Party himself, without shewing or publishing it to others, is no Libel; tho’ if it be sent to a third Person, or otherwise dispersed, this is a Publication of the Libel. 12 Rep. 34. 1 Lev. 139. In the Case a Person speaks Words that are scandalous of another, and doth not put them in Writing, he is not guilty of a Libel; for that a Libel chiefly consists in reducing the infamous Matter into Writing. 3 Salk. 226. ’Tis observed, that in the making of Libels, if one person dictates, and another writes a Libel, both are culpable; since the Writing after another shews the Transcriber’s Approbation of what is contained in the Libel: And if one dictate, another write, and a third approve of what is written, they are all deemed Makers or Composers of the Libel; by Reason all Persons who join in or concur to an unlawful Act, are in Law esteemed guilty. 5 Mod. 167. A Person makes a Transcript of a Libel, but does not give it to any other, the Copying of it is no Publication; yet the bare Copying of a Libel, without Authority, hath been held to be Writing a Libel, and the Writer thereof looked upon as a Contriver; also where a Person has a written Copy of a known Libel in his Custody, it shall be taken as an Evidence of the Publication; however, in Case the Libel be not publickly known, there it is otherwise. 2 Salk. 417. And it is said, that the Copying of a Libel is the same Thing as Writing or Composing the Libel it self, because it has the same pernicious Consequence; and if the Law were not so, Persons might write Copies of Libels, and print them with Impunity. Likewise when any Libel appears under a Person’s Hand, and no Author is known, the proof turns upon him, and if he cannot produce the Composer, it will be difficult for him to be freed from being deemed the Man. Ibid. 419. The Writing or Publishing a Libel is an Offence against the King’s Peace, and therefore is punishable by Indictment: The Composer, Procurer, and Publisher of a Libel, are liable to a Fine, Imprisonment, Pillory, or the like Corporal Punishment, at the Discretion of the Court where the Trial is had, and according to the Heinousness of the Offence. Moor 627. 3 Inst. 174. A Person for libeling the Lord Chancellor Bacon by affirming that his Lordship had done Injustice, &c. was fined 1000 l. and sentenced to ride on a Horse with his Face to the Tail, from the Fleet Prison to Westminster, with his Fault writ on his Head, to acknowledge his Offence in all the King’s Courts, and that one of his Ears should be cut off at Westminster, and the other in Cheapside; and further to be imprisoned during Life. Poph. 135. There are two ways of describing a Libel in Informations and Law Proceedings; the one by the Sense, (p. 199) in these Words, viz. The Tenor of which follows: And the other by an exact Description of the particular Words; and if there be any Variance in respect to the Words charged, it will be fatal. 2 Salk. 660.

Jacob New-Law Dictionary, unpaginated.

2.3.1.4  Cunningham, 1765

Libel, (libellus) Literally signifieth a little book, but by use it is the original declaration of any action in the Civil law, 2 H. 5. 3. and 2 Ed. 6. 13. It signifies also a criminous report of any man cast abroad, or othewise unlawfully published, and then called famosus libellus: And this either in scriptis, aut sine scriptis: In scriptis is, when an epigram or other writing is composed or published to another’s disgrace, which may be done verbis aut cantilenis: As where this is mallciously [sic] repeated or sung in the presence of others; or else traditione, when the libel, or any copy of it is delivered over to scandalize the party. Famosus libellus sine scriptis may be twofold; 1. Picturis, as to paint the party in a shameful and ignominious manner. Or, 2. Signis, as to fix a gallows or other ignominious signs at the door of the party, or elsewhere. 5 Co. Rep. De famosis Libellis.

A libel is defined a malicious defamation, expressed either in printing or writing, or by signs, pictures, &c. tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to publick hatred, contempt and ridicule. 1 Hawk. P. C. 193. 5 Mod. 165.

This species of defamation is usually termed written scandal, and thereby receives an aggravation, in that it is presumed to have been entered upon with coolness and deliberation, and to continue longer, and propagate wider and farther than any other scandal. 5 Co. 125.

But it is clearly agreed, that not only written or printed scandal comes within the notion of a libel, but also may be applied to any defamation whatsoever, expressed either by signs or pictures; as by fixing up a gallows at a man’s door, or elsewhere, or by painting him in a shameful or Ignominious manner, as by exposing a man and his wife by a skimmington or riding, though a special custom is alleged for such practice. 5 Co. 125. Skin. 123. Raym. 401. 3 Keb. 378.

And since the chief cause, for which the law severely punishes all offences of this nature, is a direct tendency of them to a breach of the publick peace, by provoking the parties injured, and their friends and families, to acts of revenge, which it would be impossible to restrain by the severest laws, were there no redress from publick justice for injuries of this kind, which, of all others, are more sensibly felt; and since the plain meaning of such scandal, as is expressed by signs or pictures, is as obvious to common sense, and as easily understood by every common capacity, and altogether as provoking as that which is expressed by writing or printing, why should it not be equally criminal? 1 Hawk. P. C. 193.

  1. 1.  What degree of defamation will amount to a libel; and what certainty is requisite in the matter and application of a libel.

  2. 2.  Whether proceedings in a court of justice are libelous; and whether any thing of this kind can be justified.

  3. 3.  Who shall be deemed the author or composer of a libel; who the publisher; and how the offenders shall be punished.

(p. 200)

1. what degree of defamation will amount to a libel; and what certainty is requisite in the matter and application of a libel.

As every person desires to appear agreeable in life, and must be highly provoked by such ridiculous representations of him, as tend to lessen him in the esteem of the world, and take away his reputation, which to some men is more dear than life itself: Hence it hath been held, that not only charges of a flagrant nature, and which reflect a moral turpitude on the party, are libellous, but also such as set him in a scurrilous ignominious light; for these equally create ill blood, and provoke the parties to acts of revenge and breaches of the peace. 5 Co. 125. 1 Keb. 293. Moor 627. 1 Rol. Abr. 37.

Hence it hath been held, that words, though not scandalous in themselves, yet if published in writing, and tending in a degree to the discredit of a man, are libellous, whether such words defame private persons only, or persons employed in a publick capacity; in which latter case they are said to receive an aggravation, as they tend to scandalize the government, for reflecting on those who are intrusted with the administration of public affairs, which doth not only endanger the publick peace, as all other libels do, by stirring up the parties immediately concerned in it to acts of revenge, but also have a direct tendency to breed in the people a dislike of their governors, and incline them to faction and sedition. Hard. 470. Skin. 123. 5 Co. 125. 2 Rol. Rep. 86. 1 Hawk. P. C. 94.

As where a person delivered a ticket up to the minister after sermon, wherein he desired him to take notice, that offences passed now without controul from the civil magistrate, and to quicken the civil magistate to do his duty, &c. and this was held to be a libel, though no magistrates in particular were mentioned, and though it was not averred that the magistrates suffered these vices knowingly. 1 Sid. 219. 1 Keb. 773. The King v. Pym.

A. gunsmith, published an advertisement in a common news-paper, that he had invented a short kind of gun that shot as far as others of a longer size, and that he was made gunsmith to the Prince of Wales; and B. another gunsmith, counter-advertised, that whereas, &c. reciting the former paragraph, he desired all gentlemen to be cautious, for that the said A. durst not engage with any artist in town, nor ever did make such an experiment, except out of a leather gun, as any gentleman might be satisfied at the Cross Guns in Long Acre, the said B.’s house. And the court held, that tho’ B. or any other of the trade, might counter-advertise what was published by A. yet that that should have been done without any general reflections on him in the way of his business; that the advice to all gentlemen to be cautious, was a reflection on his honesty, as if he would deceive the world by a fictitious advertisement, and the allegation, that he would not engage with an artist, was setting him below the rest of his trade, and calling him a bungler in general terms, and not relative to the precedent matter, and that the words except out of a leather gun, was charging him with a lie, the word gun being vulgarly used for a lie, and gunner for a liar; and that therefore these words were libellous, and gave judgment accordingly; and herein the court held, that words, tho’ not scandalous in themselves, yet being published in writing, and tending any way to the party’s discredit, were actionable, and that all words were to be construed secundum subjectam materiam, and to be understood by the court in the same sense that others do. 3 Bac. Abr. 491. Pasch. 4 Geo. 2. in B. R. Harman v. Delany.

But though every species and degree of calumny and detraction of this kind are deemed odious in the eye of the law, and punishable either by civil action or criminal prosecution in most cases, at the election of the party injured; yet the court of King’s Bench, whose jurisdiction herein is founded upon the necessity of preventing quarrels and ill blood, and which (p. 201) deals with this offence as of dangerous consequence to, and destructive to the peace of the nation, always exercises a discretionary power in granting an information for an offence of this nature, and will, in many cases, leave the party to his ordinary remedy; as where the application is made after a great length of time; so where the matter complained of as a libel happens to be true; so where the granting the information would be a discouragement to learned inquiries; or where the matter complained of was intended for reformation, not defamation. 3 Bac. Abr. 492.

So where a man advertises in a publick news-paper, that his wife had eloped from him, and cautioned all persons from trusting her; and an information for a libel being moved for, it was denied, because it was the only way the husband could take to secure himself. 3 Bac. Abr. 492. The King v. Enes, 5 Geo. 2. in B. R.

So where it was advertised in one of the daily papers, that Lady Mordington kept an assembly in Moorfields, and it being counter-advertised by my Lord’s order, that the person calling herself Lady Mordington was an impostrix, and that there was no such person except his wife, who always lived with him; the court refused to grant an information; for though she be called an impostrix, yet that relates to her as assuming the title of Lady Mordington, and which she is alleged not to have any right to; and therefore in this respect may well be called an impostrix. 3 Bac. Abr. 492. The King v. Jenneaur, Pasch. 8 Geo. 2. in B. R.

A writing was directed to general Wills, and the four principal officers of the guards, to be presented to his Majesty for redress; the paper contained the defendant’s case, that he furnished the guard at Whitehall with fire and candle, for which the government owed him 350 l. that he obtained a warrant for his money, and Captain Carr (the prosecutor) told him, that if he would assign the warrant, he would procure him the money; the warrant was assigned, and the money paid to Carr, who refused paying it to the defendant; and the question was, if an information should be granted; and the court held it no libel, but a representation of an injury, drawn up in a proper way for redress, without any intention to asperse the prosecutor; and tho’ there be a suggestion of a fraud, yet this is no more than what is in every bill in Chancery, which was never held libellous, if relative to the subject-matter. 3 Bac. Abr. 492. The King v. Bayley, Hill. 8 Geo. 2. in B. R.

Here it may be proper to insert the remarkable case of parson Prick, who in a sermon recited a story out of Fox’s Martyrology, that one Greenwood, being a perjured person, and a great persecutor, had great plagues inflicted on him, and was killed by the hand of God; whereas in truth he was never so plagued, and was himself present at that sermon; and he thereupon brought his action upon the case, for calling him a perjured person; and the defendant pleaded Not guilty; and this matter being disclosed upon the evidence, Wray Ch. Just. delivered the law to the jury, that it being delivered but as a story, and not with any malice or intention to slander any person, he was not guilty of the words maliciously, and so was found Not guilty. Cro. Jac. 90, 91.

As to the certainty requisite in the matter and application of a libel, it seems to be now agreed, that not only scandal expressed in an open and direct manner, but also such as is expressed in allegory and irony amounts to a libel, and that the judges are to understand it in the same manner as others do, without any strained endeavours to find out loopholes, or to palliate the offence, which in some measure would be to encourage scandal; as where a writing in a taunting manner, reckoning up several acts of publick charity done by one, says, You will not play the Jew, nor the hypocrite, and so goes on, in a strain of ridicule, to insinuate that what he did was owing to his vainglory; or where a writing, pretending to (p. 202) recommend to one the characters of several great men for his imitation, instead of taking notice of what they are generally esteemed famous for, pitched on such qualities as their enemies charge them with the want of; as by proposing such a one to be imitated for his courage, who is known to be a great statesman, but no soldier; and another to be imitated for his learning, who is known to be a great general, but no scholar, &c. which kind of writing is as well understood to mean only to upbraid the parties with the want of these qualities, as if it had directly and expressly done so. 5 Co. 125. That a libel may be as well by descriptions and circumlocutions as in express terms. Poph. 252. Hob. 215. 1 Hawk. P. C. 193-4.

And from the same foundation it hath also been resolved, that a defamatory writing expressing only one or two letters of a name, in such a manner that from what goes before, and follows after, it must needs be understood to signify such person in the plain, obvious, and natural construction of the whole, and would be perfect nonsense if strained to any other meaning, is as properly a libel as if it had expressed the whole name at large; for it brings the utmost contempt upon the law, to suffer its justice to be eluded by such trifling evasions; and it is a ridiculous absurdity to say, that a writing, which is understood by every the meanest capacity, cannot possibly be understood by a judge and jury. 1 Hawk. P. C. 194. Hurt’s case.

But it is said, that no writing whatsoever is to be esteemed a libel, unless it reflect upon some particular person; and that a writing full of obscene ribaldry, without any kind of reflection on any one, is not punishable at all by any prosecution at Common law; but the author may be bound to his good behaviour, as a scandalous person of evil same. 1 Hawk. P. C. 195.

But a scandal published of three or four, or any one or two of them, is punishable at the complaint of one or more, or all of them. Poph. 252, 254.

The defendant was charged in an information with writing a libel against the Protestant religion and bishops, innuendo the bishops of England; he was found guilty; and in an arrest of judgment it was offered, that the bishops libelled were not English bishops, nor could the innuendo support such a construction; but the court took upon them to understand the libel in that sense, and overruled the exception. 3 Mod. 68. The King v. Baxter.

An information was prayed for publishing a paper containing an account of a murder on a Jewish woman and her child, by certain Jews lately arrived from Portugal, and living near Broad-street, because the child was begotten by a Christian; and the affidavit set forth, that several persons mentioned therein, who were recently arrived from Portugal, and lived near Broad-street, were attacked by multitudes in several parts of the city, barbarously treated, and threatened with death, in case they were found abroad any more; and it was objected, that no information could be granted in this case, because it did not appear who in particular the persons reflected on were; and for this was cited The King v. Orme, Trin. 11 W. 3. Where an indictment was exhibited for a libel called The Ladies Invention, and alleged to the scandal of several ladies unknown; and after verdict for the King, judgment was arrested, because it did not appear who the persons reflected on were; sed per curiam, Admitting that an information for a libel may be improper, yet the publication of this paper is deservedly punishable in an information for a misdemeanor, and that of the highest kind; such sort of advertisements necessarily tending to raise tumults and disorders among the people, and inflame them with an universal spirit of barbarity against a whole body of men, as if guilty of crimes scarce practicable, and wholly incredible; and in this case was cited the case of The King and Franklin, where, tho’ only the word ministers was used in the libel, yet by suitable averments in the (p. 203) information, and proof made of them to the jury, they found those ministers to be ministers of state to his present Majesty, and the defendant guilty. 3 Bac. Abr. 494. King v. Osborne. Trin. 5 Geo. 2. in B. R.

2. whether proceedings in a court of justice are libelous; and whether any thing of this kind can be justified.

It seems to be clearly agreed, that no proceeding in a regular course of justice will make the complaint amount to a libel; for it would be a great discouragement to suitors to subject them to publick prosecutions, in respect of their applications to a court of justice; and the chief intention of the law in prohibiting persons to revenge themselves by libels, or any other private manner, is to restrain them from endeavouring to make themselves their own judges, and oblige them to refer the decision of their grievances to those whom the law has appointed to determine them. Dyer 285. 2 Inst. 228. Yelv. 117. 2 Buls. 269. Godb. 340. Palm. 145, 188. 1 Vent. 23. 1 Hawk. P. C. 194.

Therefore it hath been resolved, that no false or scandalous matter contained in a petition to a committee of parliament, or in articles of the peace exhibited to justices of peace, are libellous. 1 Lev. 240. 1 Sid. 414. 2 Keb. 832. 4 Co. 14. 1 Hawk. P. C. 194.

Also it is held, that no presentment of a grand jury can be a libel, not only because persons who are supposed to be returned without their own seeking, and are sworn to act impartially, shall be presumed to have proper evidence for what they do, but also because it would be of the utmost ill consequence any way to discourage them from making inquiries with that freedom and readiness which the publick good requires. Moor 627. 1 Hawk. P. C. 195.

And it is holden by some, that no want of jurisdiction in the court to which such a complaint shall be exhibited will make it a libel; because the mistake of the court is not imputable to the party, but his counsel; but herein it is said by Mr. Hawkins, that if it shall manifestly appear from the whole circumstances of the case, that a prosecution is intirely false, malicious and groundless, and commenced not with a design to go thro’ with it, but only to expose the defendant’s character, under the shew of a legal proceeding, there can be no reason why such a mockery of publick justice should not rather aggravate the offence than make it cease to be one, and make such scandal a good ground of an indictment at the suit of the King, as it makes the malice of their proceeding a good foundation of an action on the case at the suit of the party, whether the court had a jurisdiction of the cause or not. 2 Keb. 832. 4 Co. 14. 1 Hawk. P. C. 194.

It seems to be clearly agreed, that in an indictment or criminal prosecution for a libel, the party cannot justify that the contents thereof are true, or that the person upon whom it is made had a bad reputation; since the greater appearance there is of truth in any malicious invective, so much the more provoking it is; for, as my Lord Coke observes, in a settled state of government the party grieved ought to complain for every injury done him, in the ordinary course of law, and not by any means to revenge himself by the odious course of libelling, or otherwise. 5 Co. 125. Hob. 253. Moor 627. 1 Hawk. P. C. 194.

Also it seems now settled, that no scandal in writing is any more justifiable in a civil action brought by the party to vindicate the injury done, than in an indictment or information at the suit of the Crown; for tho’ in actions for words, the law, thro’ compassion, admits the truth of the charge to be pleaded as a justification, yet this tenderness of the law is not to be extended to written scandal, in which the author acts with more coolness, and deliberation gives the scandal a more durable stamp, and propagates it wider and further; whereas in (p. 204) words men often in a heat and passion say things which they are afterwards ashamed of, and tho’ they seem to act with deliberation, yet the scandal sooner dies away, and is forgotten; and therefore from the greater degree of mischief and malice attending the one than the other, the law allows the party to justify in an action for words, tho’ not for written scandal; from whence it follows, that the only favour truth affords in such a case is, that it may be shewn in mitigation of damages in an action, and of the fine upon an indictment or an information, 3 Bac. Abr. 495. The King v. Roberts, Mich. 8 Geo. 2. in B. R. agreed per cur. in a case for publishing a libel on Mr. Branley, recorder of Warwick.

3. who shall be deemed the author or composer of a libel; who the publisher; and how the offenders shall be punished.

It has been already observed, that a libel may be expressed not only by printing or writing, but also by signs or pictures; but it seems that some of those ways are essentially necessary; and it is laid down in Lambs case, that every person convicted of a libel must be the contriver, procurer or publisher thereof. 9 Co. 59. Moor 813. Lambs case.

It hath been strongly urged, that he who writes a libel dictated by another, is not guilty of the composing and making thereof, because it appears that another is the author or contriver; but herein the court held, that the writing being the essential part of a libel, the reducing it into writing in the first instance was a making, and differed from a transcribing; and, according to the report of this case, in 5 Mod. it was held, that if one dictates, and another writes, both are guilty of making it, for he shews his approbation of what he writes. So if one repeats, another writes a libel, and a third approves what is written, they are all makers of it, as all who concur and assent to the doing of an unlawful act are guilty; and murdering a man’s reputation by a libel, may be compared to murdering a man’s person, in which all who are present and encourage the act are guilty, tho’ the wound was given by one only. Carth. 405. 5 Mod. 163. 10. 167. The King v. Paine.

Also it hath been held, that transcribing and collecting libellous matter is highly criminal, though it be not found that the party composed or published it; for his having it in readiness for that purpose when occasion served, or its falling into such hands after his death; may publish it, might be injurious to the government. Carth. 407. 2 Salk. 417. The King v. Bear.

It is said by Holt Ch. J. that when a libel appears under a man’s hand-writing, and no other author is known, he is taken in the manner, and it turns the proof upon him; and if he cannot produce the composer, it is hard to find that he is not the very man. 2 Salk. 419.

And it is said to have been resolved by the court, that in libels making is the genus, composing or contriving is one species, writing a second species, and procuring to be written a third species: And finding a man guilty of writing only, is finding him guilty of one species of making. 2 Salk. 419.

But where in some cases the writing of a libel may be a lawful or innocent act, as by the clerk that draws the indictment, or by a student who takes notes of it, because it is not done ad infamiam of the party; but abstractedly considered, the writing the copy of a libel is writing a libel, because such copy contains all things necessary to the construction of a libel, viz. the scandalous matter, and the writing; and it has the same pernicious consequence, for it perpetuates the memory of the thing, and some time or other comes to be published. 2 Salk. 418.

It seems to be agreed, that not only he who publishes a libel himself, but also he who procures another to do it, is guilty of the publication; and it is held not to be material, whether (p. 205) he who disperses a libel knew any thing of the contents or effects of it or not; for that nothing would be more easy than to publish the most virulent papers with the greatest security, if the concealing the purport of them from an illiterate publisher would make him safe in dispersing them. 9 Co. 59. Moor. 627. 1 Hawk. P. C. 195.

And on this foundation it hath been constantly ruled of late, that the buying of a book or paper containing libellous matter in a bookseller’s shop, is sufficient evidence to charge the master with the publication, altho’ it does not appear that he knew of any such books being there, or what the contents thereof was; and it will not be presumed that it was brought and sold there by a stranger, but the master must, if he suggests any thing of this kind in his excuse, prove it. The King v. Nutt, Hil. 2 Geo. 2 so ruled on evidence at Guildhall, per Raymond Chief Justice.

The reading of a libel in the presence of another, without knowing it before to be a libel, or the laughing at a libel read by another, or the saying that such a libel is made of J. S. whether spoken with or without malice, amounts not to a publication of it. 9 Co. 59. Moor 813. 1 Hawk. P. C. 196.

Also it is held, that he who repeats part of a libel in merriment, without any malice or purpose of defamation, is no way punishable; but of this Hawkins makes a doubt, for that jests of this kind are not to be endured, and the injury to the reputation of the party grieved is no way lessened by the merriment of him who makes so light of it. Moor 627. 1 Hawk. P. C. 196.

But it seems to be agreed, if he who hath either read a libel himself, or hath heard it read by another, do afterwards maliciously read or repeat any part of it in the presence of others, or lend or shew it to another, he is guilty of an unlawful publication of it. Moor 813. 9 Co. 59. 1 Hawk. P. C. 195.

It is said by my Lord Coke in the case of De libellis famosis, to have been resolved, that if one finds a libel, (and would keep himself out of danger) if it be composed against a private man, the finder may either burn it, or presently deliver it to a magistrate; but if it concern a magistrate, or other publick person, the finder ought presently to deliver it to a magistrate, to the intent that by examination and industry the author may be found out and punished. 5 Co. 125.

It seems to be a matter of doubt, whether the sending an abusive letter, filled with provoking language to another, will bear an action as for a libel, because here is no publication; but it seems to be clearly agreed, that the sending such letter, without other publication, is an offence of a publick nature, and punishable as such, inasmuch as it tends to create ill blood, and causes a disturbance of the publick peace; and if the bare making of a libel be an offence, whether it be published or not, as it seemeth to be holden, surely the sending of it to the party reflected on must be a much greater offence. 4 Inst. 180. 3 Inst. 174. Hob. 62, 215. 12 Co. 34. Poph. 136. Raym. 201. 1 Lev. 139. 1 Keb. 931. 1 M. 58. Skin. 123-4.

And on this foundation the court of King’s Bench granted an information against a person for sending an abusive letter to Mr. Bernardiston, therein calling him rascal and fool; although he swore that he wrote this to the party himself, and never made it publick, being only a piece of private resentment; but the court held, that this method provoked persons to duelling, that the writing and sending was a good publication, and that the intent of the party shall not be explained by himself. 3 Bac. Abr. 497. The King v. Pillborough. Mich. 5 Geo. 2. in B. R.

If one deliver a paper full of reflections on any person in nature of a petition to a committee of parliament, to any other persons except the members of parliament, he may be (p. 206) punished as the publisher of a libel, in respect of such dispersing thereof among those who have nothing to do with it. 1 Sand. 133. 1 Lev. 240. 1 Sid. 414. 1 Keb. 832.

But it hath been held, that the bare printing of a petition to a committee of parliament (which would be a libel against the party complained of, if it were made for any other purpose than as a complaint in a course of justice,) and delivering copies thereof to the members of the committee, shall not be looked upon as the publication of a libel, inasmuch as it is justified by the order and course of proceedings in parliament, whereof the King’s courts will take judical notice. 1 Hawk. P. C. 196, and the authorities supra.

There can be no doubt but that a person who writes or publishes a libel is subject to the action of the party injured, in which damages shall be recovered; and that being convicted on an indictment or information, shall pay such fine, and also suffer such corporal punishment as to the court in discretion shall seem proper, according to the heinousness of the crime, and the circumstances of the offenders. Cro. Car. 175.

For more learning on this subject, see 3 Bac. Abr. and 15 Vin. Abr. tit. Libel, and see Law of Libels, &c. and Digest of the Laws concerning Libels, &c.

Cunningham Law Dictionary, vol. II, unpaginated.

2.3.1.5  Blackstone, 1765

5. The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is intitled, by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right. But these three last articles (being of much less importance than those which have gone before, and those which are yet to come) it will suffice to have barely mentioned among the rights of person; referring the more minute discussion of their several branches, to those parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs.

Blackstone Commentaries, bk. 1, ch. 1, sec. 1; vol. 1, p. 130.

2.3.1.6  Burn, 1766

Swearing.

  1. 1.  By the canons of the church, If any offend their brethren by swearing, the churchwardens shall present them; and such notorious offenders shall not be admitted to the holy communion, till they be reformed. Can. 109.1

And by the statute of the 19 G. 2. c. 21. It is enacted as follows:

  1. 2.  If any person shall profanely curse or swear, and be thereof convicted on confession, or oath of one witness, before one justice (or mayor), he shall forfeit as follows : That is to say,2

    • Every day labourer, common soldier, or common seaman, 1 s.

    • Every other person, under the degree of a gentleman, 2 s.

    • And every person of or above the degree of a gentleman, 5 s.

    • And for a second offence after conviction, double; and for every other offence after a second conviction, treble. S. 1.

    • Which said penalties shall go to the poor of the parish where the offence was committed. S. 10.

  2. (p. 207) 3.  If such person shall curse or swear in the presence and hearing of a justice (or mayor); he shall convict him without other proof. S. 2.3

  3. 4.  If in the presence and hearing of a constable, if he is unknown to such constable, the said constable shall seize and carry him forthwith before the next justice (or mayor of a town corporate), who shall convict him upon the oath of such constable.4

    If he is known to such constable, he shall speedily make information before some justice (or mayor) in order that he may be convicted. S. 3.

  4. 5.  So that the constable, if it is in his hearing, is required to prosecute; but any other person also may prosecute if he pleases.5

  5. 6.  And such justice (or mayor) shall immediately on such information on the oath of any constable, or of any other person, cause the offender to appear before him; and on proof of such information convict him; and if he shall not immediately pay down the penalty, or give security to the satisfaction of such justice (or mayor); he may commit him to the house of correction, to be kept to hard labour for ten days. S. 4.6

  6. 7.  Also the charges of the information and conviction, shall be paid by the offender, if able, over and above the penalties; which charges shall be ascertained by such justice (or mayor). S. 11.7

    But for the information, summons, and conviction, no more shall be paid to the justice’s clerk, than 1 s. S. 15.

    And if he shall not immediately pay such charges, or give security to the satisfaction of such justice (or mayor); he may commit him to the house of correction, to be kept to hard labour for six days, over and above such time for which he may be committed for non-payment of the penalties; and in such case, no charges of information and conviction shall be paid by any person. S. 11.

  7. 8.  But if such soldier or seaman shall not so pay or secure the penalty, and also the costs, of the information, summons, and conviction; he shall, instead of being committed to the house of correction, be ordered to be publickly set in the stocks for one hour for every single offence, and for any number of offences whereof he shall be convicted at one and the same time two hours. S. 5.8

  8. 9.  The conviction shall be in the words and form following;9

    Be it remembred, that on the — day of — in the year of his majesty’s reign, A. B. was convicted before me (one of his majesty’s justices of the peace for the county, riding, division, or liberty aforesaid; or before me — mayor of the city or town of — within the county of —) of swearing one or more profane oath or oaths, or of cursing one or more profane curse or curses. Given under my hand and seal the day and year aforesaid. S. 8.(p. 208)

  9. 10.  Which conviction shall not be removed by certiorari. S. 9.10

  10. 11.  And the justice (or mayor) shall cause the conviction to be fairly wrote upon parchment, and returned to the next general or quarter sessions, to be filed by the clerk of the peace, and kept amongst the records. S. 9.11

  11. 12.  If any justice (or mayor) shall omit his duty, in the execution of this act, he shall forfeit 5 l. half to the poor where he shall reside, and half to him that shall sue in any court of record. S. 6.12

  12. 13.  Constable omitting his duty, shall on conviction, on oath of one witness, before one justice (or mayor), forfeit 40 s. to be levied by distress, half to the informer, and half to the poor; and if he have not sufficient goods whereon to levy, such justice (or mayor) may commit him to the house of correction, to be kept to hard labour for one month S. 7.13

  13. 14.  And this act shall be publickly read four times in the year, in all churches and chapels, by the minister immediately after morning and evening prayer, on the Sundays next after Mar. 25. June 24. Sept. 29. And Dec. 25. On pain of 5 l. for every offence, to be levied by distress, by warrant of a justice (or mayor). S. 14.14

  14. 15.  But no person shall be prosecuted for any offence against this act, unless it be within eight days after the offence committed. S. 13.15

  15. 16.  By the 22 G. 2. c. 33. Persons belonging to his majesty’s ships of war, guilty of profane oaths or curses, shall incur such punishment as a court martial shall impose.16

Burn Justice of Peace, vol. 4, pp. 200–203.

2.3.2  Case Law

2.3.2.1  Respublica v. Oswald, 1788

On the 12th of July, Lewis moved for a rule to shew cause why an attachment should not issue against Eleazer Oswald, the printer and publisher of the Independent Gazetteer.

The case was this: Oswald having inserted in his newspapers several anonymous pieces against the character of Andrew Browne, the master of a female academy, in the city of Philadephia, Browne applied to him to give up the authors of those pieces; but being refused that satisfaction, he brought an action for the libel against Oswald, returnable into the Supreme Court, on the 2d day of July; and therein demanded bail for £1,000. Previously to the return day of the writ, the question of bail being brought by citation before Mr. Justice Bryan, at his chambers, the Judge, on a full hearing of the cause of action, in the presence of both the (p. 209) parties, ordered the Defendant to be discharged on common bail; and the Plaintiff appealed from this order to the court. Afterwards, on the 1st of July, Oswald published under his own signature, an address to the public, which contained a narrative of these proceedings, and the following passages, which, I conceive, to have been the material grounds of the present motion.

“When violent attacks are made upon a person under pretext of justice, and legal steps are taken on the occasion, not perhaps to redress the supposed injury, but to feed and gratify partisaning and temporising resentments, it is not unwarrantable in such person to represent the real statement of his case, and appeal to the world for their sentiments and countenance.

“Upon these considerations, principally, I am now emboldened to trespass on the public patience, and must solicit the indulgence of my friends and customers, while I present to their notice, an account of the steps lately exercised with me; from which it will appear that my situation as a printer, and the rights of the press and of freemen, are fundamentally struck at; and an earnest endeavour is on the carpet to involve me in difficulties to please the malicious dispositions of old and permanent enemies.”

“But until the news had arrived last Thursday, that the ninth state had acceded to the new federal government, I was not called upon; and Mr. Page in the afternoon of that day visited me in due form of law with a writ. Had Mr. Browne pursued me in this line, “without loss of time,” agreeably to his lawyer’s letter, I should not have supposed it extraordinary — but to arrest me the moment the federal intelligence came to hand, indicated that the commencement of this suit was not so much the child of his own fancy, as it has been probably dictated to and urged on him by others, whose sentiments upon the new constitution have not in every respect coincided with mine. In fact, it was my idea, in the first progress of the business, that Mr. Browne was merely the hand-maid of some of my enemies among the federalists; and in this class I must rank, his great patron Doctor Rush (whose brother is a judge of the Supreme Court). I think Mr. Brown’s conduct has since confirmed the idea beyond a doubt.”

“Enemies I have had in the legal profession, and it may perhaps add to the hopes of malignity, that this action is instituted in the Supreme Court of Pennsylvania. However, if former prejudices should be found to operate against me on the bench, it is with a jury of my country, properly elected and empannelled, a jury of freemen and independent citizens, I must rest the suit. I have escaped the jaws of persecution through this channel on certain memorable occasions, and hope I shall never be a sufferer, let the blast of faction blow with all its furies!”

“The doctrine of libels being a doctrine incompatible with law and liberty, and at once destructive of the privileges of a free country in the communication of our thoughts, has not hitherto gained any footing in Pennsylvania: and the vile measures formerly taken to lay me by the heels on this subject only brought down obloquy upon the conductors themselves. I may well suppose the same love of liberty yet pervades my fellow citizens, and that they will not allow the freedom of the press to be violated upon any refined pretence, which oppressive ingenuity or courtly study can invent.”

“Upon trial of the cause, the public will decide for themselves, whether Mr. Browne’s motives have been laudable and dignified; whether his conduct in declining an acquittal of his character in the paper, and suing me in the manner he did, was decent and consistent; and, in a word, whether he is not actuated by some of my inveterate foes and opponents, to lend his name in their service for the purpose of harrassing and injuring me.”(p. 210)

A transcript from the records was read to shew that the action between Browne and Oswald was depending in the court; James Martin proved that the paper containing Oswald’s address was bought at his printing office, fresh and damp from the press; and a deposition, made by Browne, was read to prove the preceding facts relative to the cause of action, the hearing before Mr. Justice Bryan, and the appeal from his order.

Lewis then adverted to the various pieces, which were charged as libellous in the depending action; and argued, that, though the liberty of the press was invaluable in its nature, and ought not to be infringed: yet, that its value did not consist in a boundless licentiousness of slander and defamation. He contended, that the profession of Browne, to whom the education of more than a hundred children was sometimes entrusted, exposed him, in a peculiar manner, to be injured by wanton aspersions of his character; and he inferred the necessity of the action, which had been instituted, from this consideration, that if Browne were really the monster which the papers in question described him to be, he ought to be hunted from society; but, that if he had been falsely accused, if he had been maliciously traduced, it was a duty that he owed to himself and to the public to vindicate his reputation, and to call upon the justice of the laws, to punish so gross a violation of truth and decency. For this purpose, he continued, a writ had been issued, and bail was required. The defendant, if not before, was certainly, on the hearing at the Judge’s chambers, apprized of the cause of action: The order of Mr. Justice Bryan on that occasion, and the appeal to the court, were circumstances perfectly within his knowledge; and yet, while the whole merits of the cause were thus in suspense, he thought proper to address the public in language evidently calculated to excite the popular resentment against Browne; to create doubts and suspicions of the integrity and impartiality of the Judges, who must preside upon the trial; and to promote an unmerited compassion in his own favour. He has described himself as the object of former persecutions upon similar principles; he has asserted that, in this instance, an individual is made the instrument of a party to destroy him; and he artfully calls upon his fellow citizens to interest themselves to preserve the freedom of the press, which he considers as attacked in his person. Nay, in order to cast an odium upon the new government of the United States, he insinuates, that his arrest was purposely protracted ‘till the ratification of nine states had given stability to that system: a falsehood, as unwarrantable as it is insidious; for, it will be proved that this delay took place at his own request, communicated by Col. Proctor.

Col. Proctor, being examined on this point, said, that he, at first, desired the action might not be brought, in hopes of accomplishing a compromise between the parties; that, afterwards, he requested Mr. Lewis to defer issuing the writ ‘till as near the term as it was possible: but that all this interference was of his own accord, and not at the instance of the defendant. He acknowledged, however, that he had informed Oswald, that the commencement of the action would be postponed as long as possible, after having obtained a promise to that effect from Mr. Lewis.

Lewis said he was very much mistaken, indeed, if Col. Proctor had not mentioned the request as coming from the defendant; and Col. Proctor answered, “if ever I told you so, he certainly sent me; but I cannot remember that ever he asked me to do a thing of the kind.”

Lewis then added, that the address to the public manifestly tended to interrupt the course of justice; it was an attempt to prejudice the minds of the people in a cause then depending, and, by that means, to defeat the plaintiff’s claim to justice, and to stigmatize the Judges, whose duty it was to administer the laws. There could be no doubt, therefore, that it amounted to a contempt of the court; and it only remained, in support of his motion, to shew that an (p. 211) attachment was the legal mode of proceeding against the offender. For this he cited 4 Black. Com. 280. 2 Atk. 469.

By the Court: — Take a rule to shew cause on Monday next, at 9 o’clock in the morning.

The defendant appearing on Monday the 14th, agreeably to the rule to shew cause, obtained on Saturday, prayed that the rule might be enlarged, as he had not had a reasonable time to prepare for the argument. But Lewis opposed the enlargement of the rule, observing that the defendant would be heard in extenuation, or excuse, of the contempt, after the attachment had issued.

By M’Kean, C. J. — I know not of any instance where a delay of a term has been allowed in the case of an attachment: one reason for such a summary proceeding is to prevent delay. Let cause be now shewn.

Sergeant, in shewing cause against the attachment, contended, that the doctrine, in 4 Black. Com. 280. was laid down much too wide; that in 2 Atk. 469. the Chancellor expressly assigns this reason, for his determining without a jury, that he was a judge of fact; and in 1 Burr. 510. 513. an information is granted on this principle, that courts of common law will not decide upon facts without the intervention of a jury.

M’Kean, C. J. — This was not the reason that influenced the court in their decision.

But, whatever the law might be in England, Sergeant insisted, that it could not avail in Pennsylvania. Even in England, indeed, though it is said to be a contempt to report the decisions of the courts, unless under the imprimatur of the judges; yet, we find Burrow, and all the subsequent reporters, proceeding without that sanction. But the constitution of Pennsylvania authorizes many things to be done which in England are prohibited. Here the press is laid open to the inspection of every citizen, who wishes to examine the proceedings of the government; of which the judicial authority is certainly to be considered as a branch. Const. Penn. Sect. 35.

M’Kean, C. J. — Could not this be done in England? Certainly it could: for, in short, there is nothing in the constitution of this state, respecting the liberty of the press, that has not been authorized by the constitution of that kingdom for near a century past.

Sergeant. The 9th section of the Bill of Rights, however, puts this supposed offence into such a form, as must entitle the defendant to a trial by jury; and precludes every attempt to compel him to give evidence against himself. It declares, “that, in all prosecutions for criminal offences, a man has a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favour, and a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty; nor can he be compelled to give evidence against himself; nor can any man be justly deprived of his liberty except by the laws of the land, or the judgment of his peers.” — Now, the present proceeding against the defendant is for a criminal offence; and, yet, if the attachment issues, the essential parts of this section must be defeated: for, in that case, the defendant cannot be tried by a jury; and, according to the practice upon attachments, he will be compelled to answer interrogatories; in doing which, he must either be guilty of perjury, or give evidence against himself. The proceeding by attachment is, indeed, a novelty in this country, except for the purpose of enforcing the attendance of witnesses. Those contempts which are committed in the face of a court stand upon a very different ground. Even the court of Admiralty (which is not a court of record) possesses a power to punish them; and the reason arises from the necessity that every jurisdiction should be competent to protect itself from immediate violence and interruption. But (p. 212) contempts which are alledged to have been committed out of doors, are not within this reason; they come properly within the class of criminal offences; and, as such, by the 9th Sect. of the bill of rights, they can only be tried by a jury.

M’Kean, C. J. Do you then apprehend that the 9th Sect. of the bill of rights introduced something new on the subject of trials? I have always understood it to be the law, independent of this section, that the twelve jurors must be unanimous in their verdict, and yet this section makes this express provision.

Sergeant said, that he had discussed the subject as well as the little opportunity afforded him would admit. He pressed the court to give further time for the argument, or, at once, to direct a trial. This he contended was, at least, discretionary; and, considering the Defendant’s protestation of innocence,* his readiness to give ample security for his future appearance, the magnitude of the question as arising from the constitution, and its immense consequences to the public, he thought a delay, that was essential to deliberation and justice, ought not to be refused.

Heatly and Lewis, in support of the motion, contended, that under the circumstances of the case, Oswald’s publication, whether true or false, amounted to a contempt of the court, as it respected a cause then depending in judgment, and reflected upon one of the Judges in his official capacity; that the argument of the adverse counsel went so far as to assert, that there could be no such offence as a contempt even in England, since the very words inserted in the constitution of Pennsylvania, were used in the Magna Charta of that kingdom; that, in truth, neither the bill of rights nor the constitution extended to the case of contempts, for they mean only to secure to every citizen the right of expressing his sentiments with a manly freedom, but not to authorize wanton attacks upon private reputation, or to deprive the court of a power essential to its own existence, and to the due administration of justice; that the court were as competent to judge of the fact and the law, upon the inspection of the publication in question, as the Chancellor was in the authority cited from Atkins; and that although the prosecutor could, perhaps, proceed either by indictment or information, yet that the abuses of the Star Chamber had rendered the process by information odious, and an attachment, which was sanctified by immemorial usage, was the most expeditious, and, therefore, the most proper remedy for the evil complained of.

The Chief Justice delivered the opinion of the Court to the following effect, Judge Bryan having shortly before taken his seat.

M’Kean, C. J. — This is a motion for an attachment against Eleazer Oswald, the printer and publisher of the Independent Gazetteer, of the 1st of July last, No. 796. As a ground for granting the attachment, it is proved, that an action for a libel had been instituted in this court, in which Andrew Browne is the plaintiff, and Eleazer Oswald the defendant; that a question with respect to bail in that action, had been agitated before one of the Judges, from whose order, discharging the defendant on common bail, the plaintiff had appealed to the court; and that Mr. Oswald’s address to the public, which is the immediate subject of complaint, relates to the action thus depending before us.

The counsel in support of their motion, have argued, that this address was intended to prejudice the public mind upon the merits of the cause, by propagating an opinion that Browne was the instrument of a party to persecute and destroy the defendant; that he acted (p. 213) under the particular influence of Dr. Rush, whose brother is a judge of this court; and, in short, that from the ancient prejudices of all the judges, the defendant did not stand a chance of a fair trial.

Assertions and imputations of this kind are certainly calculated to defeat and discredit the administration of justice. Let us, therefore, enquire, first, whether they ought to be considered as a contempt of the court; and, secondly, whether, if so, the offender is punishable by attachment.

And here, I must be allowed to observe, that libelling is a great crime, whatever sentiments may be entertained by those who live by it. With respect to the heart of the libeller, it is more dark and base than that of the assassin, or than his who commits a midnight arson. It is true, that I may never discover the wretch who has burned my house, or set fire to my barn; but these losses are easily repaired, and bring with them no portion of ignominy or reproach. But the attacks of the libeller admit not of this consolation: the injuries which are done to character and reputation seldom can be cured, and the most innocent man may in a moment be deprived of his good name, upon which, perhaps, he depends for all the prosperity, and all the happiness of his life. To what tribunal can he then resort? how shall he be tried, and by whom shall he be acquitted? It is in vain to object, that those who know him will disregard the slander, since the wide circulation of public prints must render it impracticable to apply the antedote as far as the poison has been extended. Nor can it be fairly said, that the same opportunity is given to vindicate, which has been employed to defame him; for, many will read the charge, who may never see the answer; and while the object of accusation is publicly pointed at, the malicious and malignant author, rests in the dishonorable security of an anonymous signature. Where much has been said, something will be believed; and it is one of the many artifices of the libeller, to give to his charges an aspect of general support, by changing and multiplying the style and name of his performances. But shall such things be transacted with impunity in a free country, and among an enlightened people? Let every honest man make this appeal to his heart and understanding, and the answer must be — no!

What then is the meaning of the Bill of rights, and the Constitution of Pennsylvania, when they declare, “That the freedom of the press shall not be restrained,”* and “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?” However ingenuity may torture the expressions, there can be little doubt of the just sense of these sections: they give to every citizen a right of investigating the conduct of those who are entrusted with the public business; and they effectually preclude any attempt to fetter the press by the institution of a licenser. The same principles were settled in England, so far back as the reign of William the Third, and since that time, we all know, there has been the freest animadversion upon the conduct of the ministers of that nation. But is there any thing in the language of the constitution (much less in its spirit and intention) which authorizes one man to impute crimes to another, for which the law has provided the mode of trial, and the degree of punishment? Can it be presumed that the slanderous words, which, when spoken to a few individuals, would expose the speaker to punishment, become sacred, by the authority of the constitution, when delivered to the public through the more permanent and diffusive medium of the press? Or, will it be said, that the constitutional right to examine the proceedings of government, extends to warrant (p. 214) an anticipation of the acts of the legislature, or the judgments of the court? and not only to authorize a candid commentary upon what has been done, but to permit every endeavour to biass [sic] and intimidate with respect to matters still in suspense? The futility of any attempt to establish a construction of this sort, must be obvious to every intelligent mind. The true liberty of the press is amply secured by permitting every man to publish his opinions; but it is due to the peace and dignity of society to enquire into the motives of such publications, and to distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame. To the latter description, it is impossible that any good government should afford protection and impunity.

If, then, the liberty of the press is regulated by any just principle, there can be little doubt, that he, who attempts to raise a prejudice against his antagonist, in the minds of those that must ultimately determine the dispute between them; who, for that purpose, represents himself as a persecuted man, and asserts that his judges are influenced by passion and prejudice, — wilfully seeks to corrupt the source, and to dishonor the administration of justice.

Such is evidently the object and tendency of Mr. Oswald’s address to the public. Nor can that artifice prevail, which insinuates that the decision of this court will be the effect of personal resentment; for, if it could, every man might evade the punishment due to his offences, by first pouring a torrent of abuse upon his judges, and then asserting that they act from passion, because their treatment has been such as would naturally excite resentment in the human disposition. But it must be remembered, that judges discharge their functions under the solemn obligations of an oath: and, if their virtue entitles them to their station, they can neither be corrupted by favour to swerve from, nor influenced by fear to desert, their duty. That judge, indeed, who courts popularity by unworthy means, while he weakens his pretensions, diminishes, likewise, the chance of attaining his object; and he will eventually find that he has sacrificed the substantial blessing of a good conscience, in an idle and visionary pursuit.

Upon the whole, we consider the publication in question, as having the tendency which has been ascribed to it, that of prejudicing the public (a part of whom must hereafter be summoned as jurors) with respect to the merits of a cause depending in this court, and of corrupting the administration of justice: We are, therefore, unanimously of opinion, on the first point, that it amounts to a contempt.

It only remains then to consider, whether the offence is punishable in the way that the present motion has proposed.

It is certain that the proceeding by attachment is as old as the law itself, and no act of the legislature, or section of the constitution, has interposed to alter or suspend it. Besides the sections which have been already read from the constitution, there is another section which declares, that “trials by jury shall be as heretofore;” and surely it cannot be contended, that the offence, with which the defendant is now charged, was heretofore tried by that tribunal. If a man commits an outrage in the face of the court, what is there to be tried? — what further evidence can be necessary to convict him of the offence, than the actual view of the Judges? A man has been compelled to enter into security for his good behaviour, for giving the lie in the presence of the Judges in Westminster-Hall.

On the present occasion, is not the proof, from the inspection of the paper, as full and satisfactory as any that can be offered? And whether the publication amounts to a contempt, or not, is a point of law, which, after all, it is the province of the judges, and not of the jury, (p. 215) to determine. Being a contempt, if it is not punished immediately, how shall the mischief be corrected? Leave it to the customary forms of trial by jury, and the cause may be continued long in suspense, while the party perseveres in this misconduct. The injurious consequences might then be justly imputed to the court, for refusing to exercise their legal power in preventing them.

For these reasons we have no doubt of the competency of our gu-jurisdiction [sic]; and we think, that justice and propriety call upon us to proceed by attachment.

Bryan, Justice, observed, that he did not mean to give an opinion as to the mode of proceeding; but added, that he had always entertained a doubt with respect to the legality of the process by attachment, in such cases, under the constitution of Pennsylvania.

M’Kean, C. J. Will the defendant enter into a recognizance to answer interrogatories, or will he answer gratis?

Oswald. I will not answer interrogatories. Let the attachment issue.

M’Kean, C. J. His counsel had better advise him to consider of it.

Sergeant said that the defendant had not had time, even to peruse what had been sworn against him; for only Sunday had intervened since the obtaining the rule to shew cause, and that was an improper day for applying to the records of the court.

M’Kean, C. J. In criminal matters Sunday has always been deemed a legal day. There has been as ample time for consideration as could well be allowed; the term will end to-morrow. Will he answer, or not?

Sergeant prayed the court would grant ‘till to-morrow morning to form a determination on the subject, and offered bail for the defendant’s appearance at that time.

M’Kean, C. J. Be it so. Let the bail be taken, himself in £200 and one surety in the like sum, for his appearance to-morrow morning.

The Defendant appearing on the 15th of July, in discharge of his recognizance; the Chief Justice again asked, whether he would answer interrogatories or not?

Bankson, for the defendant, requested, that the interrogatories might be reduced to writing before he was called upon to determine.

M’Kean, C. J. Is that your advice to him? He must now say whether he will answer them or not; they will be filed according to the usage of the court, and all just exceptions to them will be allowed.

Bankson. He instructs me to declare that he will not answer interrogatories; and he then began to urge, that there was no contempt committed, but was told by the Chief Justice, that, as that point had been determined by an unanimous opinion of the four judges yesterday, it was not now open for argument.

Lewis said, that as a misrepresentation had been industriously spread abroad respecting the conduct of the court, he thought it proper, at this time, concisely to state the real nature of the present proceedings. It has been asserted that the court were about to compel Mr. Oswald to convict himself of the offence with which he is charged: but the fact is this, that it is incumbent upon the person who suggests the contempt to prove it by disinterested witnesses; and then, indeed, the defendant is allowed by his own oath to purge and acquit himself, in spite of all the testimony which can possibly be produced against him. It appears clearly, therefore, that Mr. Oswald’s being called upon to answer interrogatories, is not meant to establish his guilt (for that has been already done) but to enable him to avoid the punishment which is the consequence of it. The court employ no compulsion in this respect. He may either answer, or not, as he pleases: if he does answer, his single oath, in his own favour, will countervail (p. 216) the oaths of a thousand witnesses; and if he does not answer, his silence corroborates the evidence which has been offered of the contempt, and the judgment of the court must necessarily follow.

M’Kean, C. J. Your statement is certainly right, and the misrepresentation, which is attempted, must either be the effect of wickedness, or ignorance.

Lewis now prayed, that the rule might be made absolute; but remarked, that, according to the authorities, the court might either do that; or, as the defendant was present, they might proceed at once to pass sentence upon him.

M’Kean, C. J. There can be no occasion, when the party is present, to make the rule for the attachment absolute: the court will proceed to give judgment.

Bryan, Justice. I was not here when the complaint was made to the court, when the evidence in support of the motion was produced, or the arguments against it were delivered: I consider myself therefore totally incapacitated for taking any part in this business.

Lewis. We can immediately furnish the court with the proofs.

Bryan, Justice. Can you furnish me, likewise, with Mr. Sergeant’s arguments?

Lewis said, that he had not penetration enough to discover any argument in what had been said for the defendant; and having again read all the evidence which had been produced, he recapitulated what he had before said in support of the motion.

Page, the under-sheriff, was then called upon to prove, that the writ in the action of Browne vs. Oswald had been in his possession, at least twelve days before it was served; and that the delay in sering [sic] it arose at first, from the defendant’s being at Baltimore; and, afterwards, from his not being at home when the witness had repeatedly called upon him.

Bryan, Justice. I still say, that not having heard what has been offered in extenuation of the offence, I am incompetent to join in any opinion respecting the punishment. I cannot surely be suspected of partiality to libellers: I have had my share of their malevolence. But, it is true, I have not suffered much; for these trifles do not wrankle in my mind.

The Chief Justice pronounced the judgment of the court in the following words:

M’Kean, C. J. — Eleazer Oswald: Having yesterday considered the charge against you, we were unanimously of opinion, that it amounted to a contempt of the court. Some doubts were suggested, whether, even a contempt of the court, was punishable by attachment: but, not only my brethren and myself, but, likewise, all the judges of England, think, that without this power no court could possibly exist; — nay, that no contempt could, indeed, be committed against us, we should be so truly contemptible. The law upon the subject is of immemorial antiquity; and there is not any period when it can be said to have ceased, or discontinued. On this point, therefore, we entertain no doubt.

But some difficulty has arisen with respect to our sentence; for, on the one hand, we have been informed of your circumstances, and on the other, we have seen your conduct: your circumstances are small, but your offence is great and persisted in. Since, however, the question seems to resolve itself into this, whether you shall bend to the law, or the law shall bend to you, it is our duty to determine that the former shall be the case.

Upon the whole, therefore, the Court pronounce this sentence: — That you pay a fine of 10£. to the Commonwealth; that you be imprisoned for the space of one month, that is, from the 15th day of July to the 15th day of August next; and, afterwards, till the fine and costs are paid. — Sheriff he is in your custody.

1 Dall. 319 (Pa.).

Footnotes:

On August 22, 1789, the following motion was agreed to:

ORDERED, That it be referred to a committee of three, to prepare and report a proper arrangement of, and introduction to the articles of amendment to the Constitution of the United States, as agreed to by the House; and that Mr. Benson, Mr. Sherman, and Mr. Sedgwick be of the said committee.

HJ, p. 112.

For the reports of Madison’s speech in support of his proposals, see 1.2.1.1.a–c.

For the reports of the debate, see 3.2.1.2.a–d.

1 Hawk. P. C. 193. 5 Mod. 165. (a) It is termed Libellus famosus seu infamatoria scriptura, and from its pernicious Tendency has been held a publick Offence at the Common Law; for Men not being able to bear the having their Errors exposed to publick View, were found by Experience to revenge themselves on those who made Sport with their Reputations; from whence arose Duels and Breaches of the Peace; and hence written Scandal has been held in the greatest Detestation, and has received the utmost Discouragement in the Courts of Justice. Lamb. Sax. Law 64. Bract. lib. 3. cap. 36. 3 Inst. 174. 5 Co. 125.

5 Co. 125.

5 Co. 125. Skin. 123. Raym. 401. 3 Keb. 378.

1 Hawk. P. C. 193.

5 Co. 125. 1 Keb. 293. Moor 627. 1 Rol. Abr. 37.

Hard. 470. Skin. 123. 5 Co. 125. 2 Rol. Rep. 86. 1 Hawk. P. C. 194.

1 Sid. 219. 1 Keb. 773. The King ver. Pym.

Pasch. 4 Geo. 2. in B. R. Harman ver. Delany.

(b As in the Case of an Apothecary, who personated Dr. Crow, wrote in his Name, and took a Fee, which being published in a common Advertisement, a Motion was made for an Information against the Publisher; but the Truth of what was advertised being made out, the Court left the Prosecutor to his ordinary Remedy. Hill. 8 Geo. 1. The King versus Bickerston.

(c As for publishing in a News-paper, that Ward’s Pill and Drop had done great Mischief in twelve several Cases, and that they were a Compound of Poison and Antimony, &c. 8 Geo. 2. The King versus Roberts.

(d As where a Person in a private Letter to the Party expostulates with him about some Vices, of which he apprehends him guilty, and desires him to refrain from them, or where a Person sends such Letter to a Father, in relation to some Faults of his Children, which are said to be not at all libellous, being Acts of Friendship, not designed for Defamation, but Reformation, 2 Brownl. 151-2. But such Matters published in a News-Paper, tho’ the Pretence be Reformation, is, it seems, libellous, as was agreed 9 Geo. 2. The King ver. Knight.

(a) As in the Case of the King versus Knight, Trin. 9 Geo. 2. in B. R. where the Party, after two Terms, three Sessions, and one Assizes applied, the Court refused to grant an Information, tho’ it was agreed, had the Application been recent, an Information would have been granted.

10  The King ver. Enes, 5 Geo. 2. in B. R.

11  The King ver. Jenneaur, Pasch. 8 Geo. 2. in B. R.

12  The King ver. Bayley, Hill. 8 Georg. 2. in B. R.

13  Cro. Jac. 90, 91.

14  5 Co. 125. That a Libel may be as well by Descriptions and Circumlocutions as in express Terms. Poph. 252. Hob. 215. 1 Hawk. P. C. 193-4.

15  1 Hawk. P. C. 194. Hurt’s Case.

16  1 Hawk P. C. 195.

17  Poph. 252, 254.

18  5 Mod. 68. The King ver. Baxter.

19  The King ver. Osborne, Trin. 5 Geo. 2. in B. R.

20  Dyer 285. 2 Inst. 228. Yelv. 117. 2 Buls. 269. Godb. 340. Palm. 145, 188. 1 Vent. 23. 1 Hawk. P. C. 194.

21  (a) 1 Lev. 240. 1 Sid. 414. 2 Keb. 832. (b) 4 Co. 14. 1 Hawk, P. C. 194.

22  Moor 627. 1 Hawk. P. C. 195.

23  2 Keb. 832. 4 Co. 14. 1 Hawk. P. C. 194.

24  5 Co. 125. Hob. 253. Moor 627. 1 Hawk. P. C. 194.

25  The King ver. Roberts, Mich. 8 Geo. 2. in B. R. Agreed per Cur. in a Case for publishing a Libel on Mr. Branley, Recorder of Warwick.

26  9 Co. 59. Moor 813. Lamb’s Case.

(a But in Carth. 406. it is said, that he who dictated cannot be indicted for this Libel, because he did not write it, and that therefore if the Writer could not, the Crime would go unpunished.

27  Carth. 405. 5 Mod. 163. to 167. The King ver. Paine.

28  Carth. 407. 2 Salk. 417. The King ver. Bear.

29  2 Salk. 419.

30  2 Salk. 419.

31  2 Salk. 418.

32  9 Co. 59. Moor 627. 1 Hawk. P. C. 195.

33  The King ver. Nutt. Hill; 2 Georg. 2. so ruled on Evidence at Guildhall, per Raymond Ch. Just.

34  9 Co. 59. Moor 813. 1 Hawk. P. C. 196.

35  Moor 627. 1 Hawk. P. C. 196.

36  Moor 813. 9 Co. 59. 1 Hawk. P. C. 195.

(a But it has been since said, that the not delivering it to a Magistrate was only punishable in the Star-Chamber, and that the bare having a Libel in one’s Custody was no Offence; 1 Vent. 31. —— But vide 2 Salk. 418. where it is said to be Evidence of his being the Author or Publisher.

37  5 Co. 125.

38  4 Inst. 180. 3 Inst. 174. Hob. 62, 215. 12 Co. 34. Poph. 136. Raym. 201. 1 Lev. 139. 1 Keb. 931. 1 M. 58. Skin. 123-4.

39  The King ver. Pillborough. Mich. 5 Geo. 2. in B. R.

40  1 Sand. 133. 1 Lev. 240. 1 Sid. 414. 1 Keb. 832.

41  1 Hawk. P. C. 196. and the Authorities supra.

42  Cro. Car. 175.

* Serjeant Hawkins says, that the reasonableness of this Opinion may justly be questioned; For that Jests of this Kind are not to be endured, and the Injury to the Reputation of the Party grieved, is no way lessened by the Merriment of him that makes so light of it. Hawk. Pl. C. 196. cap. 73. S. 14.

But had the Letter been directed to the Plaintiff himself, and not to A. it should not have been a Libel. Ibid; 152.—— Or if it had been directed to a Father for Reformation of any Acts of his Children, it should be no Libel; For it is only for Reformation and not for Defamation; For if a Letter contain scandalous Matter, and be directed to a third Person, if it be Reformatory, and for no Respect to himself, it shall not be intended a Libel; For the Mind with which it was made is to be respected; As if one write to a Father scandalous Matter concern his Children, giving Notice thereof to the Father, and advising him to have better Regard to them; This is only Reformatory, without any Respect of Profit to him that wrote it; But in the Principal Case, the Defendant intended his Profit and his own Benefit; and this was the Difference; 2 Brownl. 152 in S. C.

So where A. sent a Letter sealed up and deliver’d into B’s Hands, containing many Ironical Scandals, as saying, You will not play the Jew nor the Hypocrite, and so taunting him for an Alms-House, and other good Works done by him, all which he charged him to have done for Vain Glory, but never published it; yet the Court fined the Defendant, and sentenced him to wear Papers, and to make his Submission to B in Cheapside. But an Action of the Case will not lie in this Case, for want of Publication. However, the King and Common Wealth are interested in it, because it is a Provocation to a Challenge and Breach of the Peace. Hob. 215. Pasch. 16 Jac. in the Star-Chamber. Sir Baptist Hicks’s Case.——   S. C. Poph. 139. and the Ld. C. Bacon said, that such private Letter shall be punished, because that in a Manner it inforces the Party, to whom such Letter is sent, to publish it to his Friends for their Advice, and for fear the other Party should, so that this Compulsary Publication shall be deem’d a Publication in the Delinquent.—— And in an Information for writing &c. the Country-Parson’s Advice to the Ld. Keeper, it was held, that it lay for speaking Ironically. And the Attorney General said, it was laid to be wrote Ironice, and the Defendant ought to have shew’d at the Trial, that he did not intend to scandalize them; And the Jury are Judges Quo Animo this was done, and they have found the Ill Intent. And Judgment was given, of the Pillory, and a Fine of 40 Marks. 11 Mod. 86 Trin. 5 Annae B. R. The Queen v. Dr. Brown.

Lev. 139. S. C.

The Matter being again at the Bar, Keeling and Moreton inclined, that the Printing was not justifiable, and that the Committee ought not to be informed by Printing, or Copies, but Viva voce. Ibid. 241. Trin. 22 Car. 2. S. C.—— But after in Mich. Term following, Judgment was given for the Defendant. Ibid. 241. S. C.—— Mod. 58. S. C. Trin. 22 Car. 2. but no Judgment.—— Sid. 414. Pasch. 21 Car. 2. S. C. but Adjornatur.—— Saund. 131. Hill. 19 & 20 Car 2. S. C. and there 133, Reports that after this Case had depended 12 Terms, Judgment was given for the Defendant by Hale Ch. J. Twisden and Rainsford upon this Point, viz. That it was the Order and Course of Proceedings in Parliament to print and deliver Copies &c. of which they ought to take Judicial Notice.—— S. C. cited Hawk. Pl. C. 194. cap. 73. S. 8. And says it seems to be holden by some, That no want of Jurisdiction in the Court, to which such a Complaint shall be exhibited, will make it a Libel; Because the Mistake of the Court is not imputable to the Party, but to his Counsel. But if it shall manifestly appear, that a Prosecution is intirely false, malicious and groundless, and commenced, not with a Design to go through with it, but only to expose the Defendant's Character, under the shew of a legal Proceeding, Serjeant Hawkins says, he cannot see any Reason why such a Mockery of Publick Justice should not rather aggravate the Offence, than make it cease to be one, and make such Scandal a good Ground of an Indictment at the Suit of the King, as it makes the Malice of their Proceeding a good Foundation of an Action on the Case at the Suit of the Party, whether the Conrt [sic] had a Jurisdiction of the Cause or not. Hawk. Pl. C. 194, 195. cap. 73. S. 8 —— But it seems that no Presentment by a Grand Jury can amount to a Libel; because it would be of the utmost ill Consequence any way to discourage them from making their Inquiries with that Freedom, which is necessary for the Publick Good, by making them liable to Prosecutions on Account of such Inquiries. Hawk. Pl. C. Abr. 224. cap. 73. S. 7. but in the Book at large, it is S. S.

2 Show. 313. S. C.

An Action was brought by the Husband for riding Skimmington; and adjudged it lay; because it made him ridiculous, and exposed him; per Holt, 3 Salk. 226. Mich. 5 W. & M. B. R. in Case of Tilney v. Crop.—— So carrying a Fellow about with Horns, and bowing at B’s Door. 2 Show. 314. cites Sir Wm. Bolton v. Dean—— For scandalous Matter is not necessary to make a Libel, it is enough if the Defendant induces an ill Opinion of the Plaintiff, or to make him Contemptible or Ridiculous. 3 Salk. 226 in Case of Tilney v. Crop.—— 2 Show. 314. cites Mingay v. Moody.

2 Salk. 417. Hill. 10 W. 3. B. R. S. C.

2 Salk. 417. S. C.

10  9 Rep. 59. b. Lamb’s Case must be expounded by Mo. 813. S. C. where it is Reported as resolved, that the Writer of a Libel is, in Judgment of Law, the Contriver; and then Coke’s Case, that he that is Convict of a Libel must be Contriver, Procurer, or Publisher, is good Law, but not otherwise; per Holt Ch. J. 12 Mod. 219. the King v. Beare.—— S. P. in S. C. 2 Salk. 418. that if it be not expounded by Mo. 813. it may be doubtful; For if that Case be look’d into, the Question there was about the Publication of a Libel, and it was held, that the Writing the Copy of a Libel was not a Publication, but only Evidence of a Publication. But there was no Question made, how far he was guilty of Libelling. And as for the Matter of Publication, the bare having a Libel is not a Publication; per Holt Ch. J.—— But when a Libel appears under a Man’s own Handwriting, and no other Author is known, it is a taking in the Manner, and it turns the Proof upon him; per Holt, Ibid. 419.—— * Mo. 822. Goodrick’s Case.

11  2 Salk. 418. —— For he who dictated cannot be indicted for making this Libel. Because he did not write it; and if the Writer cannot be punished, this Crime is unpunishable; per Cur. Carth. 406. S. C.—— * It is highly Criminal. 2 Salk. 417. per Holt Ch. J—— 5 Mod. 167. S. C.—— * Carth. 409. per Holt Ch. J. in Case of the King v. Bear.

12  See (A).

13  S. C. cited per Holt Ch. J. 1 Salk. 419. in Case of the King v. Bear.—and calls it a strong Case.

14  A Libel, tho’ the Contents are true, is not to be justify’d. But the Right Way is to discover it legally to some Magistrate or other that may have Cognizance of the Cause; but it may be justify’d in an Action Sur Case. Hob. 253. Lake v. Hatton.

15  * Tho’ he never publishes it, yet his having it in readiness for that Purpose if any Occasion should happen, is highly Criminal, and tho’ he might design to keep it private, yet after his Death they might fall into such Hands as might be injurious to the Government, and therefore Men ought not to be allowed to have such evil Instruments in their Keeping &c. Per Cur. Carth. 409. Trin. 9 W. 3. B. R. The King v. Bear.

16  S. P. Resolved. 2 Salk. 66c. Mich. 5 Annae. B. R. The Queen v. Dr. Drake, which was an Information for writing a Libel, setting forth, that it contained several scandalous Matters secundum Tenorem sequentem, and in reciting a Sentence of the Libel it was (nor) instead of (not). Upon Not Guilty pleaded, this appeared in Evidence, and a special Verdict was found. The Court held, that this was not a Tenor by Reason of the Variance of (Nor) for (Not) which are different both in Grammar and Sense. —— And there it was held by Holt Ch. J. That in pleading, there are 2 Ways of describing a Libel or other Writing, viz by the Words, or by the Sense. By the Words, as if you declare of a Libel Cujus Tenor sequitur &c. or Qui sequitur in his Anglicanis Verbis sequentibus, there you describe it by its particular Words, of which each is such a Mark, that if you vary, you fail in making good their Description. 2. You may describe it by its Sense and Meaning; thus it is a good Information to shew, That the Defendant made a Writing, and therein said so and so, translating it into Latin; in which Case exactness of Words is not so material; because it is described by the Sense and Substance of it. —— S. C. 11 Mod. 78. Pasch. 5 Annae. Adjornatur. —— Ibid. 84. Trin. 5 Annae. Adjornatur. —— Ibid. 95. Mich. 5 Annae. Adjudged for the Defendant. But says, that a Writ of Error was intended.

Punishment in the spiritual court.

Pecuniary penalty,

Swearing in presence of a justice.

In presence of a constable.

In presence of any other.

Commitment on not paying the penalty.

On not paying the charges.

Soldier or seaman.

Form of the conviction.

10  Certiorari.

11  Conviction to be filed.

12  Penalty on a justice omitting his duty.

13  Penalty on the constable.

14  Act to be read in the church.

15  Limitation of actions.

16  Navy.

Mr. Oswald repeatedly declared that he meant no contempt of the court in what he had published.

Declar. of Rights, s. 12.

†  Constit. of Penn., s. 35.