to these cases are very well settled, and are not likely to be changed with a view to greater stringency.1

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Libels upon the Government.

At the common law it was indictable to publish any thing against the constitution of the country, or the established system of government. The basis of such a prosecution was the tendency of publications of this character to excite disaffection with the government, and thus induce a revolutionary spirit. The law [* 427] always, however, allowed a calm and temperate discussion of public events and measures, and recognized in every man a right to give every public matter a candid, full, and free discussion. It was only when a publication went beyond this, and tended to excite tumult, that it became criminal.2 It cannot be doubted, however, that the common-law rules on this subject were administered in many cases with great harshness, and that the courts, in the interests of repression and at the instigation of the government, often extended them to cases not within their reasons. This was especially true during the long and bloody struggle with France, at the close of the last and beginning of the present century, and for a few subsequent years, until a rising public discontent with political prosecutions began to lead to acquittals, and finally to abandonment of all such attempts to restrain the free expression of sentiments on public affairs. Such prosecutions have now altogether ceased in England. Like the censorship of the press, they have fallen out of the British constitutional system. "When the press errs, it is by the press itself that its errors are left to be corrected. Repression has ceased to be the policy of rulers, and statesmen have at length realized the wise maxim of Lord Bacon, that the punishing of wits enhances their authority, and a forbidden writing is thought to be a certain spark of truth that flies up in the faces of them that seek to tread it out.'" 3

See further, Harrison v. Bush, 5 El. & Bl. 344; Shipley v. Todhunter, 7 C. & P. 680; Lawler v. Earle, 5 Allen, 22; Grimes v. Coyle, 6 B. Monr. 301; Rector v. Smith, 11 Iowa, 302; Gosslin v. Cannon, 1 Harr. 3; Joannes v. Bennett, 5 Allen, 169; State v. Burnham, 9 N. H. 34.

2 Regina v. Collins, 9 C. & P. 456, per Littledale, J. See the proceedings against Thomas Paine, 27 State Trials, 357.

3 May, Constitutional History, c. 10.

We shall venture to express a doubt if the common-law principles on this subject can be considered as having been practically adopted in the American States. It is certain that no prosecutions could now be maintained in the United States courts for libels on the general government, since those courts have no common-law jurisdiction,1 and there is now no statute, and never was except during the brief existence of the Sedition Law, which assumed to confer any such power.

The Sedition Law was passed during the administration of the elder Adams, when the fabric of government was still new and untried, and when many men seemed to think that the breath of heated party discussions might tumble it about their heads. Its constitutionality was always disputed by a large party, and its impolicy was beyond question. It had a direct tendency to produce the very state of things it sought to repress; the

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prosecutions under it were instrumental, among other [* 428] things, in the final overthrow and destruction of the party

by which it was adopted, and it is impossible to conceive, at the present time, of any such state of things as would be likely to bring about its re-enactment, or the passage of any similar repressive statute.2

When it is among the fundamental principles of the government that the people frame their own constitution, and that in doing so they reserve to themselves the power to amend it from time to time, as the public sentiment may change, it is difficult to conceive of any sound principle on which prosecutions for libels on the system of government can be based, except when their evident intent and purpose is to excite rebellion and civil war. It is very easy to lay down a rule for the discussion of constitutional questions; that they are privileged, if conducted with calmness and temperance, and that they are not indictable unless they go beyond the bounds

note.

United States v. Hudson, 7 Cranch, 32. See, ante, 19, and cases cited in

2 For prosecutions under this law, see Lyon's Case, Wharton's State Trials, 333; Cooper's Case, ib. 659; Haswell's Case, ib. 684; Callender's Case, ib. 688. And see 2 Randall, Life of Jefferson, 417-421; 5 Hildreth, History of United States, 247, 365.

3 The author of the Life and Times of Warren very truly remarks that "the common-law offence of libelling a government is ignored in constitutional systems, as inconsistent with the genius of free institutions." P. 47.

of fair discussion. But what is calmness and temperance, and what is fair in the discussion of supposed evils in the government? And if something is to be allowed "for a little feeling in men's minds," how great shall be the allowance? The heat of the discussion will generally be in proportion to the magnitude of the evil as it appears to the party discussing it: must the question whether he has exceeded due bounds or not, be tried by judge and jury, who may sit under different circumstances from those under which he has spoken, or at least after the heat of the occasion has passed away, and who, feeling none of the excitement themselves, may think it unreasonable that any one else should ever have felt it? The dangerous character of such prosecutions would be the more glaring if aimed at those classes who, not being admitted to a share in the government, attacked the constitution in the point which excluded them. Sharp criticism, ridicule, and the exhibition of such feeling as a sense of injustice engenders, are to be expected from any discussion in these cases; but when the very classes who have established the exclusion as proper and reasonable

are to try as judges and jurors the assaults made upon it, [* 429] they will be very likely to enter upon the * examination with a preconceived notion that such assaults upon their reasonable regulations must necessarily be unreasonable. If any such principle of repression should ever be recognized in the common law of America, it might reasonably be anticipated that in times of high party excitement it would lead to prosecutions by the party in power, to bolster up wrongs and sustain abuses and oppressions by crushing adverse criticism and discussion. The evil, indeed, could not be of long continuance; for, judging from experience, the reaction would be speedy, thorough, and effectual; but it would be no less a serious evil while it lasted, the direct tendency of which would be to excite discontent and to breed a rebellious spirit. Repression of full and free discussion is dangerous in any government resting upon the will of the people. people cannot fail to feel that they are deprived of rights, and will be certain to become discontented, when their discussion of public measures is sought to be circumscribed by the judgment of others upon their temperance or fairness. They must be left at liberty to speak with the freedom which the magnitude of the supposed

1 Regina v. Collins, 9 C. &. P. 460, per Littledale, J.

The

wrongs appears in their minds to demand; and if they exceed all the proper bounds of moderation, the consolation must be, that the evil likely to spring from the violent discussion will probably be less, and its correction by public sentiment more speedy, than if the terrors of the law were brought to bear to prevent the discussion.

The English common-law rule which made libels on the constitution or the government indictable, as it was administered by the courts, seems to us unsuited to the condition and circumstances of the people of America, and therefore never to have been adopted in the several States. If we are correct in this, it would not be in the power of the State legislatures to pass laws which should make mere criticism of the constitution or of the measures of government a crime, however sharp, unreasonable, and intemperate it might be. The constitutional freedom of speech and of the press must mean a freedom as broad as existed when the constitution which guarantees it was adopted, and it would not be in the power of the legislature to restrict it, unless it might be in those cases of publications injurious to private character, or public morals or safety, which come strictly within the reasons of civil or criminal liability at the common law, but in which, nevertheless, the common law as we have adopted it failed to provide a remedy. It certainly could not be said that freedom of speech was violated by a law which should make imputing the want of chastity to a female [* 430] actionable without proof of special damage; for the charge

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is one of grievous wrong, without any reason in public policy demanding protection to the communication, and the case is strictly. analogous to many other cases where the common law made the party responsible for his false accusations. The constitutional provisions do not prevent the modification of the common-law rules of liability for libels and slanders, but they would not permit bringing new cases within those rules when they do not rest upon the same or similar reasons.1

1 In Respublica v. Dennie, 4 Yeates, 267, the defendant was indicted in 1805 for publishing the following in a public newspaper: "A democracy is scarcely tolerated at any period of national history. Its omens are always sinister, and its powers are unpropitious. With all the lights of experience blazing before our eyes, it is impossible not to discover the futility of this form of government. It was weak and wicked at Athens, it was bad in Sparta, and worse in Rome. It has been tried in France, and terminated in despotism. It was tried in England,

[* 481]* Criticism upon Officers and Candidates for Office.

There are certain cases where criticism upon public officers, their actions, character, and motives, is not only recognized as

and rejected with the utmost loathing and abhorrence. It is on its trial here, and its issue will be civil war, desolation, and anarchy. No wise man but discerns its imperfections, no good man but shudders at its miseries, no honest man but proclaims its fraud, and no brave man but draws his sword against its force. The institution of a scheme of polity so radically contemptible and vicious is a memorable example of what the villany of some men can devise, the folly of others receive, and both establish in spite of reason, reflection, and sensation." Judge Yeates charged the jury, among other things, as follows: " The seventh section of the ninth article of the constitution of the State must be our guide upon this occasion: it forms the solemn compact between the people and the three branches of the government, the legislative, executive, and judicial powers. Neither of them can exceed the limits prescribed to them respectively. To this exposition of the public will every branch of the common law and of our municipal acts of assembly must conform; and if incompatible therewith, they must yield and give way. Judicial decisions cannot weigh against it when repugnant thereto. It runs thus: The printing-presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of the 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 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.' Thus it is evident that legislative acts, or of any branch of the government, are open to public discussion; and every citizen may freely speak, write, or print on any subject, but is accountable for the abuse of that privilege. There shall be no licensers of the press. Publish as you please in the first instance, without control; but you are answerable both to the community and the individual if you proceed to unwarrantable lengths. No alteration is hereby made in the law as to private men affected by injurious publications, unless the discussion be proper for public information. But if one uses the weapon of truth wantonly for disturbing the peace of families, he is guilty of a libel.' Per General Hamilton, in Croswell's Trial, p. 70. The matter published is not proper for public information. The common weal is not interested in such a communication, except to suppress it.

'What is the meaning of the words being responsible for the abuse of that liberty,' if the jury are interdicted from deciding on the case? Who else can constitutionally decide on it? The expressions relate to and pervade every part of the sentence. The objection that the determinations of juries may vary at different times, arising from their different political opinions, proves too much.