I suspect that it has been by such process that several of our courts have come to accept Blackstone as an authority on the meaning of freedom of speech and of the press, as that is guaranteed in our American Constitutions. The present purpose is to point out the error of such a procedure in the hope of correcting it.

BLACKSTONE AN EXPOSITOR, NOT A PHILOSOPHER.

To this end we need to remind ourselves that Blackstone's legitimate role was that of an expositor and juridicial historian. He did not attempt to make any original contribution to the philosophy of law, nor pretend to point to the road of progress. He was never guilty of attempting a reform. This was especially true as to his comments upon freedom of speech and press. He reported all the current and some of the past abridgments of intellectual freedom, and expressed his satisfaction with things as they were. This task and this attitude of mind gave him no capacity for speaking with authority on the meaning of that larger mental liberty contended for those whose claims were subsequently conceded and guaranteed by the American constitutions.

Even in 1801 an English Lord Chancellor protested against the misuse of the great commentator: "I am always sorry to hear Mr. Justice Blackstone's Commentaries cited as an authority. He would have been sorry himself to hear the book so cited. He did not consider it such." The proof of this is to be found in a footnote by Blackstone, placed at the end of his introduction to the fourth edition. Others have also questioned Blackstone's accuracy as a commentator.

For the purpose of this argument, we may agree that, as a mere reporter of juridical events, Blackstone possesses a high order of accuracy and utility. It does not follow that, if he leaves the task of a historian or an expositor, to express an opinion upon controversial matters of policy, his opinion upon the latter is entitled to any weight beyond that which his assigned reasons can supply. To illustrate, we may accept as true what Blackstone says about the law concerning witchcraft without giving any of the weight of authority to his personal endorsement of the witchcraft delusion. Likewise, we may agree that he has accurately reported the abridgments of intellectual freedom which existed under English law, without accepting his personal endorsement of the current practice as expressing the whole end and aim of those agitators for a larger intellectual liberty who succeeded in having their views about free speech written into our constitutions. We may agree that Blackstone accurately reported the law as it was, without acting as though his opinions, which were so sympathetic with and expressive of those of the English Tories, are any authority as interpretive of our more democratic constitutions.

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I Shanon v. Shanon, 1 Schoales & Lefroy's Ch. R. 324-327.

2 Book 4. p. 60.

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In the beginnings of our country, Blackstone was almost the only law book read. It is said that there were more sets of his Commentaries in America than in England. Jefferson laments that "Blackstone is to us what the Alcoran is to the Mahometans.''3 Again Jefferson says: "The exclusion from the courts of the malign influence of all authorities after the Georgium sidus became ascendant, would uncanonize Blackstone."4 And a reason why this might not he regrettable is that "Blackstone and Hume have made Tories of all England, and are making Tories of those young Americans whose native feelings of independence do not place them above the wily sophistries of a Hume or a Blackstone."5

After quoting Blackstone's doctrine of the absolute sovereignty of the king, the Supreme Court of the United States makes this comment: "This last position is only a branch of a much more extensive principle on which a plan of systematic despotism has been lately formed in England, and prosecuted with unwearied assiduity and care. Of this plan the author of the Commentaries was, if not the introducer, at least the great supporter. He has been followed in it by writers later and less known; and his doctrines have, both on the other and this side of the Atlantic, been implicitly and generally received by those who examine neither their principles nor their consequences. That principle is, that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it at present to say, that another principle, very different in its nature and operations, forms, in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the consent of those whose obedience they require. The sovereign when traced to his source must be found in the man."6

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3 Vol. xii, Writings of Thomas Jefferson, p. 392, Library Edition.

4 Vol. xiii, Writings of Thomas Jefferson, p. l00, Library Edition.

5 Vol. xiv, Writings of Thomas Jefferson, p. 120, Library Edition.

6 Chisholm v. Georgia, 1 U. S. 419-458.

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Even an English court as early as 1784 has told us that "Mr. Justice Blackstone, we all know, was an anti-republican lawyer."7 And yet some Americans are impelled to forget that when Blackstone was describing liberty of the press under a system of what he conceived as an absolute monarchy, he was describing only a limited intellectual liberty by permission. They forget also that Blackstone's opponents demanded an unabridged intellectual liberty as a conceded and constitutionally guaranteed right. These latter views, not those of Blackstone, were written into our constitutions. When our courts forget this they use Blackstone's views as interpretive of our constitutions instead of absolute monarchy.

TEXT WRITERS VS. BLACKSTONE

Those authors not on the judicial bench are less restrained in their utterances of condemnation than are the judges. In order that Blackstone may be duly uncanonized, it becomes necessary to quote also a few professional critics who are not constrained by judicial etiquette. One of the most influential libertarians who took issue with Blackstone was Jeremy Bentham. He intimates in Blackstone the existence of "a resolution to justify everything at any rate, and to disapprove of nothing. * * * [He] stands forth as the professed champion of religious intolerance; or openly sets his face against all civil reformation." 8

Mr. John Austin, one of the founders of the analytic school of jurists, in addition to voluminous concrete criticism, makes this general indictment against Blackstone: "He owed the popularity of his book to a paltry but effectual artifice, and to a poor, superficial merit. He truckled to the sinister interests and to the mischievous prejudices of power; and he flattered the overweening conceit of their national or peculiar institutions which then was devoutly entertained by the body of the English people, though now it is happily vanishing before the

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7 King v. Shipley, Dean of Asaph, 4 Douglas 73-172-3.

8 Fragments of Government, p. xxvii, Edit. 1823.

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advancement of reason. And to his paltry but effectual artifice he added the allurements of a style which is fitted to tickle the

Mr. Rice, author of a book on "The Law of Evidence," has written a searching criticism under the title, ''The Blackstone Craze." In it he says: "Especially is it in order * * * to refer to the vigorous protest of two distinguished former occupants of the New York Appellate Bench, who based their aversion to Blackstone, first, on account of its utter uselessness as a repository of existing law; and second, because of its direct inculcation of vicious doctrines that have been wholly repudiated, and yet leave upon the impressionable mind of the student the contour of a false theory that is apt to infest and hamper much of his subsequent research.

"It is a rank and driveling insult to the common intelligence of our profession even to refer to the major portion of Blackstone's Commentaries as affording even a feeble exposition of the modern law. Whole chapters devoted to the ecclesiastical and governmental policy of Great Britain have not even a nebulous bearing upon any rule whatever in vogue in this country; and in fact they have long been superseded by elaborate works on the British constitution that have been out of print for half a century. What species of mental leprosy will still insist upon feeding legal minds upon such Blackstonian draff as is found in his chapters on Benefit of Clergy * * * and particularly the chapters on English Criminal Law?

"Summarizing the contention * * * we may be allowed to say that a course of study that aims at the laborious exposition of principles of law that have lost their efficacy or application * * * of criminal laws that are a smear alike upon our civilization, our humanity and our common sense, is * * * an imposition upon practical methods, a prostitution of practical energy." 10

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9 Albany Law Journal, vol. viii, p. 290, quoting Austin's Lectures on Jurisprudence, 3d ed., vol. i, p. 71; or vol. i p. 69, ed. of 1911.

10 Frank S. Rice, "The Blackstone Craze," Columbia Law Times, vol. vi, p. 1.

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"It has become quite the fashion to depreciate the study of Blackstone's Commentaries, on the ground that they are 'the charnel-house of dead law.' ''

Another critic, Mr. Reuben E. Sears, adds this: "It is this adoration of his for the then dominant feeling of society that makes him (in his fourth book) the servile apologizer of Charles I * * * that makes him brand the judges * * * as 'military hypocrites and enthusiasts'; that leads him to say that the penalties for speaking in derogation of the Established Church are 'not too severe and Intolerant'; that prompts him to exhibit his ideas of a merciful Providence then he tells us that these penalties 'proved a principal means, under Providence, of preserving the purity as well as decency of the national worship.'

"He tramples on the right of private judgment. He insults our understanding. He tells us that those who act in opposition to the Established Church 'cannot be prompted by any laudable motive,' not even 'by a mistaken zeal for reformation'; that their arguments are 'the virulent declamations of peevish and opinionated men,' and 'calculated for no other purpose than merely to disturb the consciences and poison the minds of the people.'

"Thus, in an age when the great principles of civil and religious liberty were being so strongly agitated which are now so well established, he stands forth the professional champion of religious intolerance, the determined opponent of civil reformation. He records the abominable laws against Dissenters and Papists, by which they are, in effect, deprived of nearly all civil rights, and then adds: 'Everything is as it should be.'

"Thus, he treats with scorn those glorious, all-enduring principles for which Huss and Jerome went to the stake; for which honest-hearted Luther waged his long warfare against the Romish church; for which Zwingle, fired with the spirit of Swiss liberty, poured out his life-blood on the heights of Cappel; the same principles which were sanctified by the suffering zeal of Hooper and Latimer; the same principles for which glorious Pym and valiant Hampden

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ll Albany Law Journal, vol. viii, p. 290,

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offered their heroic resistance to the tyrannic encroachments of Charles I, and whose independent sentiments were made to be respected and triumphant by the invincible Ironsides, of lion-hearted Cromwell at Marston Moor, Naseby and Worcester; the same principles which lost to James II his throne, and placed thereon the courageous Prince of Orange; the same principles for which our Revolutionary sires fought so nobly and won so gloriously; which in our own country again, and in our own times, have been so honorably vindicatedÑthe eternal and immutable principles of civil and religious liberty."l2

"It is true Blackstone in the later editions of his works somewhat modified his expressions in regard to the Toleration Act and the offenses against the Established Church. Yet by a subtle use of rhetorical expletives, he has left the meaning the same as at first, or else left no meaning at all. This led Bentham to say that our author had been made 'to sophisticate, even expunge, but all the doctors in the world would not bring him to confession.' "

My researches have failed to uncover one single writer who has combined both the inclination and the courage to say that Blackstone was even in the least degree qualified to interpret our American democratic constitutions. Not even those judges who read into our constitutions Blackstone's conception of liberty of the press have considered his fitness to be accepted for such an authority.

BLACKSTONE AND GENERAL LIBERTY

Of course Blackstone had to justify blasphemy laws because his assumed task was to defend the absolute sovereignty of the ruling caste. Literary talent alone could never have given him distinguished political preferment. But his great literary ability, devoted to the unflinching defense of every existing tyranny, contributed mightily toward his development from a pauper orphan to a celebrated public functionary, whose official acts contributed absolutely nothing to his fame. l3

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12 William Blackstone, in Western Jurist, vol. v, p. 529, 1871.

13 But for an interesting and sympathetic account of Blackstone's career see Charles B. Wheeler, "Blackstone the Lawyer and the Man," University of Cal. Publications, vol. xii: Univ. Chronicle. pp. 323-349.

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We can best understand the value of Blackstone's conception of toleration if we see it in relation to his more general philosophy of government. He says: "This law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe and in all countries, and at all times; no human laws are of any validity if contrary to this; * * * Upon these two foundations, the law of nature and the law of revelation, depend all human laws.'' l4

From such a theory of government he must of course believe in laws against blasphemy, and, like our own Puritans, he could no doubt quote the revealed will of God in support. However, some American judges, in harmony with our American conception of a secular state, have said that "reason and the nature of things will impose laws even on the Deity."l5 Austin calls the most probable interpretation of the foregoing quotations from Blackstone "sheer nonsense.''l6 Having such a medieval conception of the nature and origin of civil law, it was inevitable that Blackstone should also have a similar view of personal liberty.

To make it plain just how true all these criticisms are, if we view Blackstone from a democratic and libertarian viewpoint, it would be necessary to present a volume in critical review of his commentaries. Manifestly, this cannot be done here. The authors quoted above have performed that task in part, and yet not thoroughly from the viewpoints of which I am speaking.

ENDORSING TYRANNY AS PERFECT LIBERTY

Those who are familiar with English history during the period just preceding our American revolution will know how to gauge the import of the following brief quotations from the Commentaries. Space limits forbid the reproduction of more. Blackstone exhibits his great devotion to

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14 Vol. i, p. 42.

15 Fletcher v. Peck, 6 Cranch 8-143.

16 Austin's Lectures on Jurisprudence, sec. 174.

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tyranny by his extravagant praise of it under the name of liberty. He says that the "idea and practice of political and religious liberty flourish in their highest vigor in these kingdoms, where it falls little short of perfection.'' l7

"All these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraintsÑrestraints in themselves so gentle and moderate as will appear upon further inquiry that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do everything that a good man would desire to do; and are restrained from nothing but what would be pernicious either to ourselves or our fellow citizens." l8

No man is an authoritative interpreter of our democratic and constitutional rights who cannot give them a more sympathetic understanding than is possible to a man capable of penning the foregoing paragraphs. Blackstone did not, nor did he attempt it, because the constitutions had not come into existence when he wrote, and he was incapable of sympathy with the spirit and ideals which called them into being.

BLACKSTONE ON FREE SPEECH

The one paragraph on freedom of the press which our courts have cited, and the sentiment of which has been appropriated by others of them without credit to Blackstone is the following, which is quite in accord with his general defense and love of tyranny.

"In this, and in other instances which we have lately considered, where blasphemous, immoral, treasonable schismatical, seditious or scandalous libels are punished by the English law, some with greater, others with less degrees of severity, the liberty of the press, properly understood, is by no means infringed or violated.

"The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraint upon publication, and not in freedom of censure

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17 Vol. i, p. 126.

18 Vol. i, p. 140.

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for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish, as the law does at present, and dangerous or offensive writings which, when published, shall on a fair and impartial trial, be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order of government and religion, the only solid foundations of civil liberty." l9

CONSTITUTIONS OVERRULED BLACKSTONE.

As far as it can be done by a mere abstract statement of the law, Blackstone has given us a good portrayal of the various modes of restraining free speech for the protection of the prerogatives of royalty and the privileges of aristocracy. Usually this was the real object of censorship, even when the pretense was to protect religion, morality, God and peace. When our judges accept Blackstone as an authority on the meaning and limits of constitutional free speech, they overlook one very important fact, namely: the only occasion for our constitutional phrases upon the subject was the desire to make it impossible for our legislators to re-enact those English laws against free speech which Blackstone approved.

In other words our constitutions were never intended to endorse Mansfield, Kenyon, Ellenborough, Blackstone or any other Tory-Royalist conception of free speech. On the contrary, our constitutional guarantees were meant to register the fact that these English judicial conceptions of free speech had been overruled by the American people.

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l9 Com. vol. iv. p. 151.

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If Blackstone's paragraph above quoted is an authority upon the meaning of unabridged liberty, then he is equally an authority on the meaning of our constitutional guarantees for a separation of church and state. Thus, by the easy device of a Blackstonian interpretation of our constitutional guarantees of freedom, we may revive, not only the laws against Catholics, impostors, nonconformists and heretics, but also those legally establishing a favored church. Here also Blackstone gave his endorsement. To show this I am going to quote Blackstone again. This time I will quote the first edition:

"Everything is now as it should be (20) unless perhaps that

heresy ought to be more strictly defined, and no prosecution permitted, even in the ecclesiastical courts, till the tenets in question are by proper authority previously declared to be heretical. Under these restrictions, it seems necessary, for the support of the National Religion, that the officers of the Church should have power to censure heretics, but not to exterminate or destroy them."

To punish seditious utterances by boring a hole through the tongue with a red hot iron, as was lawful in Maryland, or to inflict the same punishment for denying the resurrection of the body, as was lawful in Massachusetts, does not involve either previous restraint or complete extermination. These, therefore, are in complete harmony with religious liberty and unabridged freedom of speech, "properly understood," as by Blackstone and by those American courts which accept him as an authority on constitutional liberty of speech and press.

Shall we now believe that a separation of church and state and religious equality mean only that heretics ought no longer to be destroyed or burnt? Is that not just as sensible as to accept Blackstone as an authority on the meaning of free speech or the existence of witches?

It is hoped that the foregoing considerations have much impaired Blackstone's toryism as an authority on the meaning of our religious liberty and free speech guarantees. Later will be exhibited the contrary views of Blackstone's critics. Then it will be claimed that it was the opinions of the friends of intellectual liberty and not Blackstone's that were meant to be expressed in our constitutional guarantees of free speech. Likewise it will be contended that their opinions shall be used as an authoritative interpretation of the constitutional language, and that Blackstone's definition shall be disregarded.

Constitutional Free Speech

IX. BLACKSTONE'S CRITICS

Having disposed of Blackstone as an "authority" on the meaning of our American constitutional religious and intellectual liberty, we may proceed to use him as a means of clarifying the issues that were fought out between those who were content with the conditions approved by Blackstone, and those who sought intellectual liberty, as that was afterwards assured by our constitutions. If we can get a clear view of the essence of the controversy between them, we shall have an exact understanding of that which our constitutions were meant to prevent in future. This may or may not give us the whole of the meaning of mental liberty, but it will surely give us one aspect, or one indispensable factor of our guaranteed liberty of conscience, of speech and of the press. It may be that absence of previous restraint is another such factor, or was but one of several different methods by which the more fundamental principle was denied. So, then, for the purpose of making clear the pre-revolutionary historic issues over intellectual freedom, and for the purpose of showing what intellectual freedom meant to those whose views were incorporated into our American constitutions, we will state a little more at length the defenses for censorship as that was regarded at about Blackstone's time, and then contrast that with the opinions of Blackstone's critics.

THE DEFENSE OF CENSORSHIP

Then, as now, the advocates for the suppression of unpopular opinions refused to see that, to admit the existence of the power to suppress any opinion, is, in the long run, more destructive to human well-being than the ideas against which they would have the powers exercised. Then, as now, the alleged immediate public welfare was the justification for every form of censorship, and some dangerous "tendency," only speculatively ascertained, and usually discovered in a feverishly apprehensive imagination, was always the test of guilt. "The most tyrannical and the most absolute governments speak a kind of parental language to the abject wretches who groan under their crushing and humiliating weight." 1

To make this clear it is necessary only to quote a few passages from a publication dated A. D. 1680, written in defense of the abridgments of freedom of speech and press. Sir Roger L'Estrange, (2) quotes Calvin as saying: "There are two sorts of seditious men, and against both these must the sword be drawn; for they oppose the King and God himself." He then exhibits the evolution of dangerous tendencies by these words: "First, they find out corruptions in the Government, as a matter of grievance, which they expose to the people. Secondly, they petition for Redress of those Grievances, still asking more and more, till something is denied them. And then, Thirdly, they take the power into their own hands of Relieving themselves, but with oaths and protestations that they act only for the common Good of King and Kingdom. From the pretense of defending the Government, they proceed to the Reforming of it; which Reformation proves in the end to be a final dissolution of the order both of Church and State. * * * Their consciences widened with their interest. * * * First, they fell upon the Kings Reputation; they invaded his authority in the next place; after that they assaulted his Person, seized his Revenue; and in the conclusion, most impiously took away his Sacred Life. * * * The transition is so natural from Popular Petition to Tumult that the one is but a Hot Fit of the other; and little more than a more earnest way of petitioning. * * * They Preach the People into further, sacrilege, and Rebellion; they pursue a most gracious Prince to the scaffold; they animate the Regicides, calling that execrable villainy an act of Public Justice, and entitling the Holy Ghost to Treason."3

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1 Erskine in defense of Carnan.

2 A Seasonable Memorial in Some Historical Notes upon the Liberties of the Press and Pulpit.

3 In addition to "A Seasonable Memorial," see for similar argument "A Discourse of Ecclesiastical Politic, wherein the Mischiefs and Inconveniences of Toleration are Represented." London, 1670.

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PREFERRING LIBERTY WITH ITS DANGERS.

This argument, backed by the historical fact, is unanswerable to the point that to permit freedom of criticism of religion or of government and its priests or officials, and to allow the presentation of petitions for the redress of grievances, is to permit that which tends to promote actual treason or rebellion. It follows that those who were demanding the opportunity to express their sentiments in criticism of official conduct and petitions for redress, were in effect demanding the right verbally to promote treason with impunity, because that was the demonstrated tendency, more or less remote, of all reformatory effort. That freedom, with its attendant dangerous tendency, is exactly that unabridged freedom of speech and of the press meant to its advocates, and our constitutional guarantee for religious liberty and abridged freedom of utterance was a final decision in favor of that view and against all mere psychologic crimes, including even verbal "treason." In other words, the friends of free speech contended with Salust, that: "Liberty with danger is to be preferred to servitude with security."

Heretofore we have seen the views of those who believed in the absolutism of government, and all liberty as a revocable, limited liberty by permission. Our constitutional guarantees of liberty of speech and press were manifestly desired to secure some other conception of liberty, some irrevocable and "inalienable" right. What were the practical, essential and fundamental differences between these two conceptions of freedom?

Every censorship so far has made its defense behind question-begging epithets of undefinable meaning. In the language of Blackstone, already quoted, by means of subsequent punishment everything should be suppressed which can be characterized as "dangerous and offensive writings," adjudged to be so because of a "pernicious tendency." This also was the excuse for laws creating restraint previous to publication. The friends of free speech always denied that a mere "pernicious tendency" was a sufficient excuse for suppressing or punishing the expression of any unpopular idea.

Of course the determination of the existence of such a psychologic tendency before its fruition in actual or material injury, or in an overt act which is capable of inflicting, it according to the known laws of the physical universe, is to make the law a mere matter of guess work. Just so soon as we get away from scientifically established fact into the infinite sea of metaphysical speculation, every semblance of "law" disappears. Many have reasoned about atheism and agnosticism as Bishop Horsley did about Unitarians. He said: "Unitarianism being heresy, even the moral good of the Unitarians is sin."4 Of course it must be so, because their every moral virtue made the major sin of their heresy more alluring, and so more effective for evil.

The processes of balancing the psychologic tendencies of aIl opinion in the minds and the emotions of an undefined hypothetical reader or hearer of the future is a task which the most skilled psychologist probably would not have the courage to undertake. Those who know the least about mental and emotional mechanisms are the most certain about their ability to decide such questions, and those who are the most intense in their moralistic vociferations upon this subject are, of course, the least capable of making a dispassionate study of that which they understand so little. Such a task requires the highest of specialized scientists, not moral sentimentalists.

A review of the opinions of the defenders of unabridged free speech will show that, aside from arguments for its morality and expediency, the essence of their contention was an opposition to making excuse for suppression, or the test of criminality, to depend upon an uncertain guess about the problematical, speculative, and prospective, psychologic influence of an idea upon a mere undescribed hypothetical hearer or reader of the future. The demand was that the jurisdiction of the magistrate should be withheld until that assumed psychologic tendency had ceased to be a mere matter of imagination, by having been expressed in an overt act of disorder doing actual and material injury.

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4 See: Dunlap's Defense of Abner Kneeland, p. 125.

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FURNEAUX ON LIMITS OF TOLERATION.

Now we come to an exposition of the views of those who rejected Blackstone's defense of absolutism in the tyrant, Ñthose who stood for religious liberty and free speech, and whose agitation crystallized into our constitutional guarantees upon that subject.

First and chief among the critics of Blackstone's conception of toleration was the Rev. Philip Furneaux (1726-1783). This learned dissenting divine not only induced Blackstone to modify his views somewhat, in the later edition of his Commentaries, but was also a principal factor in securing a more literal attitude of the English government toward dissenters. 5 His pamphlets in favor of unabridged free speech grew into a book and appeared in several editions.

Here, then, is the statement of the Rev. Philip Furneaux. He says: "For if the magistrate be possessed of a power to restrain and punish any principles relating to religion, because of their tendency, and he be the judge of that tendency; as he must be, if he be vested with authority to punish on that account; religious liberty is entirely at an end; or, which is the same thing, is under the control, and at the mercy of the magistrate, according as he shall think the tenets in question affect the foundation of moral obligation, or are favorable or unfavorable to religion and morality. But, if the line be drawn between mere religious principle and the tendency of it, on the one hand; and those overt acts which affect the publick peace and order on the other; and if the latter alone be assigned to the jurisdiction of the magistrate, as being guardian of the peace of society in this world]d, and the former, as interfering only with a future world, be reserved to a man's own conscience, and to God, the only sovereign Lord of conscience; the boundaries between civil power and liberty, in religions matters, are clearly marked and determined; and the latter will not be wider or narrower, or just nothing at all, according to the magistrate's opinion of the good or bad tendency of principles.

"If it be objected, that when the tendency of principles is unfavorable to the peace and good order of society, as it may be, it is the magistrate's duty then, and for that reason, to restrain them by penal laws; I reply, that the tendency of principles, though it be unfavorable, is not prejudicial to society, till it issues in some overt acts against the publick peace and order; and when it does, then the magistrate's authority to punish commences; that is, he may punish the overt acts, but not the tendency, which is not actually hurtful; and, therefore, his penal laws should be directed against overt acts only, which are detrimental to the peace and good order of society, let them spring from what principles they will; and not against principles or the tendency of principles.

"The distinction between the tendency of principles, and the overt acts arising from them, is, bad cannot but be, observed in many cases of a civil nature; in order to determine the bounds of the magistrate's power, or at least to limit the exercise of it, in such cases. It would not be difficult to mention customs and manners, as well as principles, which have a tendency unfavorable to society; and which, nevertheless, cannot be restrained by penal laws, except with the total destruction of civil liberty. And here, the magistrate must be content with pointing his penal law against the evil overt acts resulting from them.* * * * Punishing a man for the tendency of his principles, is punishing him before he is guilty, for fear he should be guilty." 6

These sentiments of Furneaux, and even the very language in which they are expressed, are so in conformity with the Virginia Religious Liberty Statute as to leave little doubt that the latter was taken from the former. Jefferson himself said there is not an original thought or word in the Virginia Religious Liberty Statute. (7) I continue to quote from Furneaux:

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6 pp 52-55, ed. of 1770.

7V. IX, Publications Amer. Sociol. Soc.. p. 78.

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"For, though calumny and slander, when affecting our fellow men, are punishable by law; for this plain reason, because an injury is done, and a damage sustained, and a reparation therefore due to the injured party; yet, this reason cannot hold where (God and the Redeemer are concerned; who can sustain no injury from low malice and scurrilous invective; nor can any reparation be made to them by temporal penalties; for these can work no conviction or repentance in the mind of the offender; and if he continue impenitent and incorrigible, he will receive his condign punishment in the day of final retribution. Affronting Christianity, therefore, does not come under the magistrate's cognizance, in this particular view, as it implies an offense against God and Christ."8

Let me continue to quote from Furneaux Letters to Blackstone even at some length, so as to give a more accurate view of the attitude of those opposed to Blackstone's views 7s. After this longer sample, we will content ourselves with more brief extracts from other writers of similar views.

"So that the particular reason on which you ground the 'indecency of reviling the liturgy,' namely, that it is 'setting up private judgment in opposition to publick,' appears to me to be very inadequate and unsatisfactory."9

"The next article in the composition of this crime, namely, reviling the common prayer, is, you say, "arrogance.' It is 'arrogant to treat with rudeness and contempt what hath a better chance to be right, than the singular notions of any particular man.' [Blackstone.]

"In using the phrase, 'the singular notions of a particular man,' you [Blackstone] put the case very favorably for drawing your own conclusions. To be sure, if a man adopts sentiments which never entered into anybody's head but his own, or which no one will embrace when proposed, the odds are against him. But this is not often the case; and is not so, in particular, with regard to the debate between the church and the Dissenters, the point here in question. However, he who treats the notions of others with a rude contempt, does, I think, in most cases, appear to affect a sort of superiority (call it arrogance, or insolence, if you please), which usually ill becomes him who assumes it, and is never very agreeable to those who are the objects of it.

"But with relation to the query, who have the fairest chance of being in the right? those who follow the lead of a publick establishment? or those who are, or profess to be, impartial enquirers after truth? that, I think, is not so clear, at least on one side of the question, as you seem to imagine.

"Most establishments, even those which have been settled by authority of the civil power, have originated from the clergy; at least, with respect to their formularies of doctrine and worship; and the magistrate hath had little more to do in the affair, than to establish what hath been already prepared to his hands. Let us, then, look into, ecclesiastical history, and see what the councils, synods, convocations, and other general, national, or provincial (9) assemblies of the clergy, have, for the most part, been, from the first famous and revered Council of Nice, down to the last session of our own convocation in England. When I reflect on the policy and artifice used in the management of such assemblies; on their obsequiousness to the caprices of princes, and ministers of state, or of potent ecclesiastics, and even of some of their own ambitious and turbulent members; on their prejudices and passions, their private and party views, their scandalous animosities and contentions; on the small majorities by which questions of importance, intended to bind not only the men of that age but their posterity, have been determined on the respectable characters which have often appeared in the minor number: and above all, on their self-contradictions, and their mutual censures and anathemas; I say, when I consider these things, I own, they somewhat abate my reverence for the determinations of such bodies. * * *10

"The third article which you [Blackstone exhibit against reviling the liturgy, is, that it involves in it 'ingratitude, by denying indulgence and liberty of conscience to the members of the national church.' There would be little room, surely, sir, to complain of violations of liberty of conscience, if, in contending for their respective dogmas, men never went beyond contending and ridiculing one another; for, however censurable this may be, it certainly is not (denying them liberty of conscience; that always implies restraint or compulsion, ideas very different from contempt and ridicule.

"But perhaps, reviling the liturgy may be censured, as ungrateful, on account of the toleration indulged to Dissenters. It is not, however, to the (Church the Dissenters are peculiarly indebted for this blessing. For though her governors promised them every mark of Christian temper and brotherly affection, when her fears of Popery ran high in the reign of James the Second; yet, as soon as the storm subsided, these promises were, in great measure, forgotten. It is to that great prince, King William, to whom the British constitution and liberties owe their preservation and security; and to those renowned patriots who first engaged, and then supported him, in the glorious enterprise; it is to these, and such as these, the Dissenters are, under God, alone obliged for their deliverance from unjust violence and oppression; and for being restored, in part, to their natural rights by the toleration. I say, to their natural rights; for religious liberty is one of those rights to which men are entitled by nature; as much so, as to their lives and properties; and it should be remembered, therefore, that the Dissenters cannot be justly reckoned to be any more obliged to those who kindly do not again deprive them of it, than they are to those who as kindly do not seize on their estates, or take away their lives; an obligation which, I suppose, hath never been esteemed a reason for any peculiar gratitude.

"And now, sir, notwithstanding the exceptions which I have taken to your premises, I will leave you in full possession of your conclusion; I will suppose, that the crime of reviling the liturgy is a complication of 'indecency, arrogance, and ingratitude;' and I will add, moreover, that it may possibly imply (and, I think, it is the principal thing that can be implied in it, though you have not at all

mentioned it), great malignity and inveteracy against the church. But, surely, to confiscate a man's goods, and imprison him for life, for any degree of any of these evil dispositions towards the church, then discovered only by words (though it be frequently, and they be ever so open and explicit) and not by any injurious and dangerous overt acts; must be considered, one would think, by persons of humanity, and doubtless, therefore, by you, sir, upon further reflection to be somewhat too severe and intolerant. Notwithstanding all the bitterness with which the puritans inveighed against the offices of the church (and which they did not do, till by oppression they were provoked almost to madness), the passing this act, in my opinion, discovered a very intolerant spirit in those who, at that time, had the conduct of publick affairs.

"But perhaps it may be said, that this measure was adopted only out of prudence, for the security of the national establishment. You inform us, that 'the terror of these laws (for, you say, they seldom or never were fully executed) proved a principal means, under Providence, of preserving the purity as well as decency of our national worship.' Which, give me leave to say, sir, is passing no great compliment upon the national worship.

"But however that may be: what had the church to fear from the revilings of the puritans, that she must fence herself around with human terrors? We are to suppose, she had all the truth and argument, as well as the encouragement of the civil magistrate, on her side. In this case, having recourse to human terrors was bringing disgrace on a good cause, and doing credit to a bad one. For the presumption, in most men's minds, is always in favor of the cause which is oppressed and persecuted; and that this is the case, is owing, partly, to a certain generosity in mankind, which inclines them to side with the weakest, and those who are ill-treated; and partly to a persuasion, which appears not wholly unreasonable, that while argument can be maintained, terror will not be employed. And for my own part, I am persuaded, that the church, instead of insuring its safety by these methods, greatly increased the number of its enemies, and inflamed their animosity and inveteracy. Had the governors of the church or state, at that time, made a few concessions, such as not only the puritans, but many wise and great men in the church, desired; or, in case * * * they had indulged and tolerated those puritans, who could not in conscience conform, it is my opinion, the church would have been in no more danger from the puritans of that age, that it is now in from the Dissenters of this. Such severe laws occasioned the very crime they were intended to prevent; for they embittered men's spirits, and inflamed their passions; and when the mind is greatly irritated, it is hardly in human nature to speak with temper and moderation, either of those by whom, or of that for which, men feel themselves ill-treated and oppressed.

"I would further observe (and it is an observation I would submit to a gentleman of your profession, in particular) that, on supposition this act was leveled only, as you seem to imagine, against the bitter reproaches and insults of the puritans, it seems to have been drawn with too great latitude of expression. I believe you will admit, and, I think, you have somewhere said something like it,

that it is the excellence of any law to define offenses and punishments with the utmost precision, that the subject may know distinctly what is lawful and what is forbidden. But is this the case with the act before us, supposing it to be designed merely against reviling and outraging the offices of the church? For, what is the precise idea of one who speaks, in open words, in derogation of the common prayer? Surely, under an expression of such latitude may be included every man, who openly declares his disapprobation of any part of it; that is, any one who gives his reasons for not joining in the offices of the church; and he may, by a willing judge and jury, nay, ought, according to the literal sense of the words, to be convicted upon this statute. Now, supposing this law was intended only, as you seem to think, against insulting and reviling the liturgy; can so good a lawyer as Dr. Blackstone approve of a statute, which is so worded as to comprehend persons who are entirely innocent of the crime intended?

"But in truth, I cannot help thinking, that it was the actual intention of those who promoted this act, to put an effectual stop, if possible, to the puritans' arguments as well as their revilings; and that, in this account, the act was so expressed, as to include every man who finds fault with the common prayer, though only in a way of argument. For certainly, that is, 'in open words speaking in derogation of it.' The intent of the act at that time, I am afraid, was, to prevent the questioning any part of the service of the church, either in a way of reasoning or reviling.

"Before Dr. Blackstone, therefore, had declared his approbation of this statute, and much more of the continuance of it to the present time, he should have considered, what persons and what cases, according to its literal and just construction, and perhaps according to its original intention, may be affected by it; and whether he would chuse to vindicate it in its full extent. In every view it appears to me very surprising, that you, sir, who have expressed yourself, on various occasions, with so much liberality of sentiment, should think 'the continuance of this act not too severe and intolerant.' ''

This ends the quotations from Furneaux. It is believed that enough has been shown to make it very plain that this friend of free speech repudiated all the arguments of moral sentimentalism, which either the past or present friends of blasphemy laws put forth in justification. Neither he nor any other friend of complete mental freedom ever dreamed of contenting themselves with arguing against previous restraint, or censorship of literary style. The censorship laws which had provided for previous restraint had been repealed for nearly four score years when Furneaux wrote his criticism of Blackstone's endorsement of then existing intolerance. The demand was not for relief from previous restraint, but from subsequent punishment, and from being penalized upon uncertain speculations about psychologic tendencies.

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ll Furneaux, Letters on Toleration, Letter IV, pp. 89-100. Different editions of these "Letters" vary a little.

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The demand was for a resort only to overt acts to produce actual and material injury. It will be observed that there is also a repudiation of the idea that punishment may properly be based upon the style or temper of the utterance.

BENTHAM ON FREE SPEECH.

Furneaux had his mind focussed on religious toleration, but by insisting on an overt act as the only proper basis of suppression or test of crime, and in opposing a mere guess about a psychologic tendency as criteria of guilt, he furnished a general standard of judgment, applicable to all problems of free speech that can arise under our constitutions. Jeremy Bentham, another of the distinguished critics of Blackstone, approached the problem of tolerance more from the point of view of a political and parliamentary reformer. The interesting and important thing about it is that Bentham reaches the same conclusion as Furneaux, namely, that if intellectual liberty is to be maintained we must abolish speculations about psychologic tendencies as the criteria of guilt, and substitute therefore overt acts, actually constituting real disturbance and real injury. Jeremy Bentham, in his criticism of Blackstone's views on free speech says:

"In regard to a government that is free and one that is despotic, wherein is it then that the difference consists? * * * * On the liberty of the press; or the security with which every man, be he of the one class or the other, may make known his complaints and remonstrances to the whole community; on the liberty of public association; on the security with which malcontents may communicate their sentiments, concert their plans, and practice every mode of opposition short of actual revolt, before the executive power can be legally justified in disturbing them." 12

REV. JOSEPH FOWNES.

The next person whom I will quote is the Rev. Joseph Fownes, as to whom little seems to be known. His book

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12 Bentham's, Fragment on Government, p. 153-154, Edit. 1776.

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"An Enquiry Into the Principles of Toleration," was published in the second edition in England in 1773. The first edition was published anonymously. In the catalogue of the library of the British Museum, it appears that he also published several items under the pseudonym of "Phileleutheros." Notwithstanding such literary prominence his name does not appear among collections of English biographies which I have examined. I suspect the explanation for this absence of information is to be found in his coming to America. Some time about 1810 there appeared in Boston a pamphlet entitled "A Blow at the Root of Aristocracy, or an Appeal to Matters of Fact, in Support of Religious Freedom," and signed "Phileleutheros." Insofar as this speculation identifies Joseph Fownes with agitation for intellectual freedom in America, his opinions acquire an added force as a factor in construing our constitutional guarantees. This first book was in part inspired by Blackstone, and definitely took issue with his conception of intellectual liberty. In the second edition, 1773, (13) he answers an objection such as doubtless had been made often, and must have been in the minds of those who framed the Constitution of Connecticut. He says:

"Religion, it will be urged, may be made a plea for anything; and, if governors must never interpose to restrain it, there is no enormity but what will pass unpunished."

Then he goes on to explain away the fear by calling attention to the same old line between actual injury and constructive injury, though I think he uses less precision therein than some others. The Supreme Court of the United States answers the same contention as to Mormon polygamists in U. S. v. Reynolds, 98 U. S. 163. That Court, by following Jefferson and the Virginia Act of Toleration, in fixing the limits of intellectual liberty, reaches the same conclusion as Furneaux, Fownes, Milton, Bentham, and the rest. The makers of the Connecticut Constitution were unwilling to leave it to future construction,

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13 Page 18, of "An Enquiry Into the Principles of Toleration."

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such as was made in the Reynold case, and so sought to compel the same construction by appropriate words, answering to the fears of the people.

Fownes (l4) says: "The instances, in which this inconvenience may be supposed to arise from liberty of conscience, may, I presume, be generally reduced to one of these cases. The case of persons who think themselves bound to use force for the propagation of what they apprehend to be truth. The case of those, whose principles lead them to judge, what are commonly thought vices hurtful to society, to be innocent, and what may be indulged without scruple. Or, lastly, the case of those, who are so unhappily misled as to incorporate things hurtful to society into their religion, and account it their duty to practice them." He shows that the principles of toleration and religious freedom neither lead to these evils nor take away the power of the magistrate to restrain them, insofar as they are real and not imaginary or merely psychologic.

To the first he answers: "Every attack which he makes upon their person, liberty or estate, for this purpose, is an injury, which comes within the limits of the civil power. (l5) To the second he answers that: "Fraud, robbery, perjury and other crimes of the like nature, are directly repugnant to all the essential and acquired rights of men.'' (l6) Manifest]v, he is writing of property rights. To the third he answers thus: "If his judgment should unhappily lead him to make anything a part of his religion, which is injurious to others, and contrary to the fundamental laws of society; he so far still falls under the animadversion of the magistrate. * * * He acts not as the dictator to his subjects in spirituals, but as the guardian of their temporalities. * * * By attending to this obvious distinction, the rights of conscience and the real rights of government will both be preserved, and the pernicious extremes of calling either in question will be avoided.

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14 In an Appendix, p. 114.

15 p. 115.

16 p. 116.

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Religious liberty will be kept from running into licentiousness; civil authority be preserved from degenerating into tyranny.'' (l7)

AN ANONYMOUS CRITIC

Next I quote from an interesting essay entitled: "Aeropagitica, an essay in the Liberty of the Press, dedicated to the Rt. Hon. Charles James Fox, the friend of Truth and Liberty, London, 1791" (Not by Milton and anonymous). About the criminality of publishing truth he says: "To punish the effects of virtue, is to punish virtue itself. It surely can never he admitted as a reason for such an attack upon the moral obligations of society, 'That every libel has a tendency to a breach of the peace, by provoking the person libelled to breach it.' If such argument is to prevent us from the publication of Truth, there is an end of all active morality, and there is no distinction, in the eye of the law, between crimes and virtues.'' (l8)

"What reason can be given for the punishment of moral duty? Is it a satisfactory answer, that the provocation to others to commit crimes is a reason why men should not be virtuous? Laws which punish Truth cannot be made for the protection of good men, and surely laws for the protection of villainy are inconsistent with public happiness.'' (l9)

"Thus in the eye of the law [as quoted from Blackstone], it is not a previous restraint to be restrained from publishing the Truth, or to be certain of fine, imprisonment and pillory, for the publication of what can be proved to be true, and intended for public good or private vindication, or any other general or individual advantage." (20)

"To say that the press is free when the punishment of publication is certain, is to place a trap for virtue, honor, and good conduct. The Author is indeed in a much worse condition than he was in the times before mentioned, for he might then be secure by procuring a license.''2l

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17 pp. 116-117.

18 p. 12.

I9 p. 15.

20 p.18.

21 p. 19.

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"The case of (a) trial for a breach of the peace [committed] by the publication of truth, is surely a mockery of common sense and common justice." (22)

"We have seen from the law laid down by Blackstone, and the present practice of the courts in cases of libel, that the boasted Liberty of the Press, consists in being able to publish, with a probable certainty of punishment, and without a possibility of vindication, in a prosecution by indictment. The business of the jury is very short and the proceedings summary." (23)

WORTMAN ON BLACKSTONE.

Unfortunately no biographical data as to Tunis Wortman was found beyond two books and two pamphlets of his authorship. From these it appears that he was a strong advocate of the election of Jefferson. After his election he delivered an oration on the occasion of celebrating his inauguration. One of Wortman's books is entitled "A Treatise Concerning Political Inquiry and Liberty of the Press," New York, 1800. Wortman was a member of the New York Bar and in this volume wrote an eloquent and impassioned defense for unabridged liberty of political inquiry. On the whole, it is a defense of Jefferson's conception of intellectual liberty. In the course of this treatise, he makes the following comment on Blackstone:

"It is essential to examine the prominent principles of the present doctrine of Libels, in order that we may accurately appreciate the ground upon which it is usually vindicated. Its first proposition is, that in criminal prosecutions the tendency which all Libels have to foment animosities, and to disturb the public peace, is the sole consideration of the law; and that it is, therefore, perfectly

- immaterial, with respect to the essence of a Libel, whether the matter of it be true or false since the provocation, and not the falsity, is the thing to be punished criminally.

"Truth Can never be a libel. The system which maintains so odious a proposition, is founded in the most 'palpable injustice. * * *

"Criminal prosecutions for Libels can never be necessary to preserve the public tranquillity: the coercion of Violence is abundantly sufficient for that purpose. * * *

"It perpetually implies a want of confidence in the energy of the law, and conveys an impolitic acknowledgment of the imbecility or the insincerity of Government. It tells us that the (Civil Magistrate is too impotent to suppress the ebullitions of Wrath, and must therefore act the tyrant over Truth. * * *

"The public peace must be preserved. Our laws are so disgracefully imbecile and imperfect, that we cannot maintain tranquillity without the sacrifice of Truth. * * *

"Another prominent principle of the present doctrine concerning Libels, is, that 'the Liberty of the Press entirely consists in laying no previous restraints upon publications, and not in freedom from Censure for Criminal matter when published.' This definition, of which the principal force consists in its excluding the idea of a pervious Imprimatur, is true as far as it extends; but it is extremely imperfect. Of what use is the liberty of doing that for which I am punishable afterwards? In the same sense it may be said that I have the liberty to perpetrate felony or murder, if I think proper to expose myself to the penalties annexed to those crimes. In ascertaining the rights I possess, it is not to be enquired what I may do, and be punished; but what I am entitled to perform without being subjected to punishment." (24)

PRIESTLY ON BLACKSTONE.

The Rev. Joseph Priestly did not believe in the total immediate disestablishment of all churches. On page 197 of "Essay on First Principles of Government," he endorses the levying of taxes to support all religions, everyone being obliged to support some church. He says: "It would not indeed be perfect and unbounded liberty in

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24 Wortman's Treatise on Liberty of the Press, Chap. XVI.. DD. 251-256

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matters of religion, but it would be pretty near it, and might make way for it" (p. 202). Later on Dr. Priestly came to America, and this together with his conservatism makes his comments on Blackstone doubly important.

Dr. Priestly criticized Blackstone, in a pamphlet: "Remarks on Some Paragraphs in the Fourth Volume of Dr. Blackstone's Commentaries." Priestly, however, attempted mainly to criticize Blackstone's historical accuracy in dealing with dissenters, rather than his generalization about the meaning of free speech. He begins with criticizing the laws against speaking derogatively of the prayer books. "Why may I not speak in derogation of the book of common prayer, or even in contempt of it, if I really think it a defective and contemptible performance? Where is the great crime if, insulted as Dissenters have always been, with the malice, and nonsense of high churchmen, they should now and then speak or even write in their own vindication? * * * How is it possible to vindicate our conduct as Dissenters, that is our not using the common prayer book, without speaking in derogation of it? (p. 8.) * * * The paragraph [from Blackstone] I am animadverting upon, is calculated to do as much mischief as most things I have ever read, tending to inflame the animosity of a party and to increase our unhappy division ( p. 10 ) * * * and propose that instead of 'virulent declamations of peevish and opinionated men' he [Blackstone] would write the calm reasonings of sober and conscientious men." So Priestly really makes a plea for equality of liberty for excited speech.

He does not demand Blackstone's suppression for excitement against dissenters, but demands that Blackstone and the law should give Dissenters the same freedom exercised against them.

"Besides, there is something in the nature of religion that makes it more than out of the proper sphere, or province of the civil magistrate, to intermeddle with it." (p.139)

"The sanctions of the church of Christ in this world are, like itself, and like the weapons of the Christian warfare, not carnal and temporal, but of a spiritual nature; and do not affect a man's person, life, liberty or estate (p. 153). * * * All that the New Testament authorizes a Christian church or its officers to do, is to exclude from their society those persons whom they do not deem worthy of it. * * * All that can be done to those who are guilty of contempt against church power, is to leave them to the judgment of God * * * who is a better judge of its real danger than man can be (p. 155). * * * Let them not only predict, but if their zeal prompt them to it let them imprecate divine judgment. Let them pray that God would speedily plead his own cause, taking it for granted to be their own. Were I the obnoxious person, I should be very easy upon the occasion, provided their own cruel and merciless hands were not upon me" (p. 156). This then is free speech and religious liberty as conceived by Blackstone's critics. This is the conception written into our constitutions.

FURNEAUX AND PRIESTLY TO JEFFERSON.

What interests us now is the fact that Priestly and Furneaux's criticism of Blackstone were re-published in Philadelphia in 1773, (25) and so became a part of the American agitation for freedom of the press and strengthened the arguments that their views and not Blackstone's were meant to be incorporated in your Constitution.

It is hoped that this makes clear the issue between Blackstone and his critics. Governments that abridge intellectual liberty always make the same justification as Blackstone did. That is, the dominant class wishes to relieve itself of the annoyance and the disturbance incident to having the wisdom or the justice of its dominance questioned. That and not a longing for general justice or truth is the real motive for wishing to prohibit "dangerous and offensive writings." When the danger has

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25 The palladium of conscience or the foundation of religious liberty displayed, asserted and established, agreeable to its true and genuine principles, above the reach of all petty tyrants who attempt to lord it over the human mind. Containing Furneaux's letters to Blackstone, Priestly's remarks on Blackstone, Blackstone's reply to Priestly and Blackstone's Case of the Middlesex Election * * * Philadelphia: Bell, 1773.

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become realized in overt acts, which are injurious to persons or property, the purveyor of dangerous ideas becomes liable as an accessory before the fact, of some other crime, or more directly liable, as in personal libel. In such cases there is no need to resort to speculation about psychologic tendency because the actual and material injury are evident and can be easily proven if they exist.

The foregoing quotations make it plain that the critics of Blackstone demanded that the state have no jurisdiction until the "dangerous and pernicious tendency" eventuates in an overt act, which is actually dangerous to person or property according to the known laws of the physical universe, and not merely dangerous according to a metaphysical speculation about the unrealized psychologic tendency of an idea or of literary or oratorical style, upon some hypothetical hearer or reader of the future. From the standpoint of Blackstone's critics this was the essence of mental freedom, as to religion.

Constitutional Free Speech

X

U. S. A. versus BLACKSTONE.

In the year 1803, at Philadelphia, there was published an American edition of Blackstone's Commentaries. It was edited by St. George Tucker. To each volume is attached an appendix containing short tracts upon such subjects as seemed to the editor to be necessary to an understanding of the changes wrought by our Constitutions and the laws of Virginia. Under Blackstone's definition of liberty of the press is a reference to an "Appendix to volume first part second. Note G .. " That note reveals so much of the past and contemporaneous attitude toward religious and intellectual liberty and contains so much of exact and close reasoning that it will be reproduced in its entirety. Prof. St. George Tucker, who edited this American edition of Blackstone's Commentaries, and so wrote the accompanying declaration and justification of the American Constitutional concept of intellectual liberty was one of a faculty of distinguished statesmen of the revolutionary period. At the time of writing the following discussion he was a professor of law in the College of William and Mary, and Judge of the General Court of Virginia. In 1804 he was appointed a judge of the Virginia Court of Appeals, and in 1813 Judge of the United States District Court of Virginia. The italics are not Prof. Tucker's.

"This right of personal opinion, comprehends first, liberty of conscience in all matters relative to religion; and, secondly, liberty of speech and of discussion in all speculative matters, whether religious, philosophical, or political.

"1. Liberty of conscience in matters of religion consists in the absolute and unrestrained exercise of our religious opinions, and duties, in that mode which our own reason and conviction dictate, without the control or intervention of any human power or authority whatsoever. This liberty though made a part of our constitution, and interwoven in the nature of man by his Creator, so far as the arts of fraud and terrors of violence have been capable of abridging it, hath been the subject of coercion by human laws in all ages and in all countries as far as the annals of mankind extend. The infallibility of the rulers of nations, in matters of religion, hath been a doctrine practically enforced from the earliest periods of history to the present moment among Jews, pagans, mahommetans, and christians, alike. The altars of Moloch and of Jehovah have been equally stained with the blood of victims, whose conscience did not receive conviction from the polluted doctrines of blood thirsty priests and tyrants. Even in countries where the crucifix, the rack, and the flames have ceased to be the engines of proselitism, civil incapacitates have been invariably attached to a dissent from the national religion: the ceasing to persecute by more violent means, has in such nations obtained the name of toleration. (l) In liberty of conscience says the elegant Dr. Price,

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There is something so truly original in the following observations of the celebrated author of Common Sense, on the subject of toleration, that I shall give it at full length...."Toleration is not the opposite of intolerance, but is the counterfeit of it. Both are despotisms. The one assumes to itself the right of withholding liberty of conscience, and the other of granting it. The one is the pope armed with fire and faggot, and the other is the pope selling, or granting indulgences. The former is church and state; and the latter is church and traffic.

"But toleration may be viewed in a much stronger light. Man worships not himself, but his Maker- and the liberty of conscience which he claims, is not for the service of himself, but of his God. In this case, therefore, we must necessarily have the associated idea of two beings- the mortal who renders the worship, and the immortal being who is worshipped....Toleration, therefore, places itself, not between man and man, nor between church and church nor between one denomination of religion and another, but between God and man- between the being who worships, and the being who is worshipped, and by the same act of assumed authority by which it tolerates man to pay his worship, it presumptuously and blasphemously sets itself up to tolerate the Almighty to receive it.

"Were a bill brought into any parliament, entitled, "An act to tolerate or grant liberty to the Almighty to receive the worship of a Jew or a Turk," or "to prohibit the Almighty from receiving it :"all men would startle, and call it blasphemy. There would be an uproar. The presumption of toleration in religious matters would then present itself unmasked: but the presumption is not the less because the name of "man" only appears to those laws, for the associated idea of the worshipper and worshipped cannot be separated.

Who, then, art thou, vain dust and ashes ! by whatever name thou art called, whether a king, a bishop, a church or a state, a parliament or any thing else, that obtrudest thine insignificance between the soul of man and it's Maker? Mind thine own concerns. If he believes not as thou believest, it is a proof that thou believest not as he believeth, and there is no earthly power can determine between you.

"With respect to what are called denominations of religion, if every one is left to judge of it's own religion, there is no such thing as a religion that is wrong; but if they are to judge of each other's religion, there is no such thing as a religion that is right; and, therefore, all the world is right, or all the world is wrong. But with respect to religion itself, without regard to names, and as directing, itself from the universal family of mankind to the divine object of all adoration, it is man bringing to his Maker the fruits of his heart; and though those fruits may differ from each other like the fruits of the earth, the grateful tribute of every one is accepted.

"A bishop of Durham or a bishop of Winchester, or the archbishop who leads the dukes, will not refuse a tythe-sheaf of wheat, because it is not a cock of hay; nor a cock of hay, because it is not a sheaf of wheat; nor a pig because it is neither one nor the other; but these same persons, under the figure of an established church, will not permit their maker to receive the varied tythes of man's devotion.

"One of the continual chorusses of Mr. Burke's book is "church and state": he does not mean some one particular church, or someone particular state, but any church and state; and he uses the term as a general figure, to hold forth the political doctrine of always uniting the church with the state in every country; and he censures the national assembly for not having done this in France. Let us bestow a few thoughts on this subject.

"All religions are in their nature, kind and benign, and united with principles of morality. They could not have made proselytes at first, by professing any thing that was vicious, cruel, persecuting, or immoral. Like every thing else they had their beginning: and they proceeded by persuasion, exhortation and example. How is it then that they lose their native mildness and become morose and intolerant ?

"It proceeds from the connection which Mr. Burke recommends. By engendering the church with the state, a sort of mule animal, capable only of destroying, and not of breeding up, is produced, called the church established by law. It is a stranger, even from it's birth, to any parent mother on which it is begotten, and whom in time it kicks out and destroys.

"The inquisition in Spain does not proceed from the religion originally professed, but from this mule animal, engendered between the church and state. The burnings in Smithfield proceeded from the same heterogeneous production- and it was the regeneration of this strange animal in England afterwards, that renewed the rancour and irreligion among the inhabitants; and that drove the people called Quakers and dissenters to America. Persecution is not an original feature in any religion- but it is always the strongly marked feature of all law religions, or religions established by law. Take away the law-establishment, and every religion re-assumes its original benignity. In America, a catholic priest is a good citizen, a good character, and a good neighbour; an Episcopalian minister is of the same description: and this proceeds independently of the men, from there being no law-establishment in America.

"If also we view this matter in a temporal sense, we shall see the ill effects it has had on the prosperity of nations. The union of church and state has impoverished Spain. The revoking the edict of Nantes drove the silk manufacture from France into England- and church and state are now driving the cotton manufacture from England to America and France. It was by observing the ill effects of it in England, that America has been warned against it; and it is by experiencing them in France, that the national assembly have abolished it- and, like America, have established universal right of conscience, and universal right of citizenship.

Paine's Rights of Man. part 1. n. 58. &c. Albany. 1794.

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I include much more than toleration. Jesus Christ has established a perfect equality among his followers. His command is, that they shall assume no jurisdiction over one another, and acknowledge no master besides himself. It is, therefore, presumption in any of them to claim a right to any superiority or pre-eminence over their brethren.

Such a claim is implied, whenever any of them pretend to tolerate the rest. Not only all christians, but all men of all religions, ought to be considered by a state as equally entitled to it's protection, as far as they demean themselves honestly and peaceably. Toleration can take place only where there is a civil establishment of a particular mode of religion; that is, where a predominant sect enjoys exclusive advantages, and makes the encouragement of it's own mode of faith and worship a part of the constitution if the state; but at the same time thinks fit to suffer the exercise of other modes of faith and worship. Thanks be to God, the new American states are at present strangers to such establishments. In this respect, as well as many others, they have shewn in framing their constitutions, a degree of wisdom and liberality which is above all praise.

"Civil establishments of formularies of faith and worship, are inconsistent with the rights of private judgment. They engender strife .... they turn religion into a trade....they shore up error....they produce hypocrisy and prevarication....they lay an undue bias on the human mind in its inquiries, and obstruct the progress of truth....genuine religion is a concern that lies entirely between God and our own souls. It is incapable of receiving any aid from human laws. It is contaminated as soon as worldly motives and sanctions mix their influence with it. Statesmen should countenance it only by exhibiting, in their own example, a conscientious regard to it in those forms which are most agreeable to their own judgments, and by encouraging their fellow citizens in doing the same. They cannot, as public men, give it any other assistance. All, besides, that has been called a public leading in religion, has done it an essential injury, and produced some of the worst consequences.

"The church establishment in England is one of the mildest sort. But even there what a snare has it been to integrity? And what a check to free inquiry? What dispositions favourable to despotism has it fostered? What a turn to pride and narrowness and domination has it given the clerical character? What struggles has it produced in its members to accommodate their opinions to the subscriptions and tests which it imposes? What a perversion of learning has it occasioned to defend obsolete creeds and absurdities? What a burden is it on the consciences of some of its best clergy, who, in consequence of being bound down to a system they do not approve, and having no support except that which they derive from conforming to it, find themselves under the hard necessity of either prevaricating or starving? No one doubts but that the English clergy in general could with more truth declare that they do not, than that they do give their unfeigned assent to all and every thing contained in the thirty-nine articles, and the book of common prayer: and, yet, with a solemn declaration to this purpose, are they obliged to enter upon an office which above all offices requires those who exercise it to be examples of simplicity and sincerity....Who can help execrating the cause of such an evil?

"But what I wish most to urge is the tendency of religious establishments to impede the improvement of the world. They are boundaries prescribed by human folly to human investigation; and enclosure, which intercept the light, and confine the exertions of reason. Let any one imagine to himself what effects similar establishments would have in philosophy, navigation, metaphysics, medicine, or mathematics. Something like this, took place in logic and philosophy, while the ipse dixit of Aristotle, and the nonsense of the school, maintained, an authority like that of the creeds of churchmen; and the effect was a longer continuance of the world in the ignorance and barbarity of the dark ages. But civil establishments of religion are more pernicious. So apt are mankind to misrepresent the character of the Deity, and to connect his favour with particular modes of faith, that it must be expected that a religion so settled will be what it has hitherto been... a gloomy and cruel superstition, bearing the name of religion.

"It has been long a subject of dispute, which is worse in it's effects on society, such a religion or speculative atheism. For my own part, I could almost give the preference to the latter. Atheism is so repugnant to every principle of common sense, that it is not possible it should ever gain much ground, or become very prevalent- On the contrary, there is a particular proneness in the human mind to superstition, and nothing is more likely to become prevalent....Atheism leaves us to the full influence of most of our natural feelings and social principles; and these are so strong in their operation, that, in general, they are a sufficient guard to the order of society. But superstition counteracts these principles, by holding forth men to one another as objects of divine hatred; and by putting them on harassing, silenceing, imprissoning and burning one another, in order to do God service. . . . Atheism is a sanctuary for vice, by taking away the motives to virtue arising from the will of God, and the fear of future judgment. But superstition is more a sanctuary for vice, by teaching men ways of pleasing God, without moral virtue; and by leading them even to compound for wickedness, by ritual services, by bodily penances and mortifications; by adoring shrines, going pilgrimages, saying many prayers, receiving absolution from the priests, exterminating heretics, &c....Atheism destroys the sacredness and obligation of an oath. But is there not also a religion (so called) which does this, by teaching, that there is a power which can dispense with the obligation of oaths; that pious frauds are right, and that faith is not to be kept with heretics.

"It is indeed only a rational and liberal religion; a religion founded on just notions of the Deity, as a Being who regards equally every sincere worshipper, and by whom all are alike favoured as far as they act up to the light they enjoy: a religion which consists in the imitation of the moral perfections of an Almighty but Benevolent Governor of Nature, who directs for the best, all events, in confidence in the care of his providence, in resignation to his will, and in the faithful discharge of every duty of piety and morality from a regard to his authority, and the apprehension of a future righteous retribution. It is only this religion (the inspiring principle of every thing fair and worthy, and joyful, and which, in truth is nothing but the love of God to man, and virtue warming the heart and directing the conduct). It is only this kind of religion that can bless the world, or be an advantage to society. This is the religion that every enlightened friend to mankind will be zealous to support. But it is a religion that the powers of the world know little of, and which will always be best promoted by being left free and open. (2)

The following passage from the same author, deserves too much attention to be pretermitted: 'Let no such monster be known there, [in the United States;] as human authority in matters of religion. Let every honest and peaceable man, whatever is his faith, he protected there; and find an effectual defense against the attacks of bigotry and intolerance. In the United States may religion flourish ! They cannot be very great and happy if it does not. But let it be a better religion than most of those which have been hitherto professed in the world. Let it be a religion which enforces moral obligations; not a religion which relaxes and evades them....A tolerant and catholic religion; not a rage for proselytism....A religion of peace and charity; not a religion that persecutes curses and damns. In a word, let it be the genuine gospel of peace, lifting above the world, warming the heart with the love of God and his creatures, and sustaining the fortitude of good men, by the assured hope of a future deliverance from death, and an

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2 Price's observations on the American revolution. p. 28 to 34.

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infinite reward in the everlasting kingdom of our Lord and Saviour.' (3)

"This inestimable and imprescriptible right is guaranteed to the citizens of the United States, as such, by the constitution of the United States, which declares, (4) that no religious test shall ever be required as a qualification to any office or public trust under the United States; and by that amendment to the constitution of the United States,' (5) which prohibits congress from making any law respecting the establishment of religion, or prohibiting the free exercise thereof; and to the citizens of Virginia by the bill of rights,(6) which declares, 'that religion, or the duty which we owe to our creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience: and that it is the mutual duty of all to practice Christian forbearance, love, and charity, towards each other.' And further, by the act for establishing religious freedom, by which it is also declared, that no man shall be compelled to frequent or support any religious worship, place, or ministry, whatsoever, nor shall be enforced, restrained, molested or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument maintain their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.' (7)

"2. Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political; and of inquiring into and, examining the nature of truth, whether moral or metaphysical; the expediency

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3. Ibid. p. 39.

4. Art. 6.

5. Art. 3.

6. Art. 16. Revised code. Edi. of 1794, p. 4.

7. Art 16. Revised code. Edi. of 1794. c. 20.

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or expediency of all public measures, with their tendency and probable effect; the conduct of public men, and generally every other subject, without restraint, except as to the injury of any other individual, in his person, property, or good name. Thought and speech are equally the immediate gifts of the Creator, the one being intended as the vehicle of the other: they ought, therefore, to have been wholly exempt from the coersion of human laws in all speculative and doctrinal points whatsoever: liberty of speech in political matters, has been equally proscribed in almost all the governments of the world, as liberty of conscience in those of religion. A complete tyranny over the human mind could never have been exercised whilst the organ by which our sentiments are conveyed to others, was free: when the introduction of letters among men afforded a new mode of disclosing, and that of the press, a more expeditious method of diffusing their sentiments, writing and printing also became subjects of legal coersion; (8) even the expression of sentiment, by pictures and hieroglyphics (9), attracted the attention of the Argus-government, so far as to render such expressions punishable by law. The common place arguments in support of these restraints are, that they tend to preserve peace and good order in government; that there are some doctrines both in religion and politics, so sacred, and others of so bad a tendency, that no public discussion of them ought to be suffered. To these the elegant writer before referred to, gives this answer: 'were this a right opinion, all the persecution that has ever been practised, would be justified. For if it is a part of the duty of civil magistrates, to prevent the discussion of such doctrines, they must, in doing this, act on their own judgments of the nature and tendency of doctrines; and consequently, they must have a right to prevent the discussion of all doctrines which they think to be too sacred for discussion, or too dangerous in their tendency; and this right they must exercise in the only way in which civil power is capable of exercising it, by inflicting penalties on

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8 Stat. 13 and 14, Car. 2.

9 4 Blacks. Com. p. 150.

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all who oppose sacred doctrines, or who maintain pernicious opinions.' (10)

"In England during the existence of the court of star chamber, and after it's abolition, from the time of the long parliament to the year 1694, the liberty of the press, and the right of vending books, was restrained to very narrow limits, by various ordinances and acts of parliament; all books printed were previously licensed by some of the great offices of state, or the two universities, and all foreign books were exposed to a similar scrutiny before they were vended. No shopkeeper could buy a book to sell again, or sell any book, unless he were a licensed bookseller. By these and other restrictions the communication of knowledge was utterly subjected to the control of those whose interest led them rather to promote ignorance than the knowledge of truth. In 1694, the parliament refused to continue these prohibitions any longer, and thereby, according to De Lolme, (ll) established the freedom of the press in England. But although this negative establishment may satisfy the subjects of England, the people of America have not thought proper to suffer the freedom of speech, and of the press to rest upon such an uncertain foundation, as the will and pleasure of the government. Accordingly, when it was discovered that the constitution of the United States had not provided any barrier against the possible encroachments of the government thereby to be established, great complaints were made of the omission, and most of the states instructed their representatives to obtain an amendment in that respect; and so sensible was the first congress of the general prevalence of this sentiment throughout America, that in their first session they proposed an amendment since adopted by all the states and made a part of the constitution; 'that congress shall make no law abridging the freedom of speech, or of the press.' (12) And our state bill of rights declares, 'that the freedom of the press is one of the great bulwarks of liberty, and cannot be restrained, but by despotic gov-

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10 Price's Observations on the American Revolution, p. 19.

11 Page 215.

12 Amendments to C. U.S. Art. 3.

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ernments.' (13) And so tenacious of this right, was the convention of Virginia, by which the constitution of the United States was ratified, that they further declared, as an article of the bill of rights then agreed to, 'that the people have a right to the 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.' (14) Nay, so reasonably jealous were they of the possibility of this declaration being disregarded, as not forming a part of the constitution, at that time, that the following declaration is inserted in, and forms a part of, the instrument of ratification, viz. 'That the powers granted under the constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression; and that, every power not granted thereby, remains with them, and at their will: that, therefore no right; of any denomination, can be cancelled, abridged, restrained, or modified by the congress, by the senate, or house of representatives, acting in any capacity; by the president., or any department, or officer of the United States, except in those instances where power is given by the constitution for those purposes: that among other essential rights, the liberty of conscience, and of the press, cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.'

"As this latter declaration forms a part of the instrument by which the constitution of the United States became obligatory upon the state, and citizens of Virginia; and as the act of ratification has been accepted in that form; no principle is more clear, than that the state of Virginia is no otherwise bound thereby, than according to the very tenor of the instrument, by which she has bound herself. For as no free state can be bound to another, or to a number of others, but by it's own voluntary consent and act, so not only the evidence of that consent, but the nature and

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13 State Bill of Rights. Art. 12.

14 Bill of Rights agreed to by the convention of Virginia, by which the C. U. S. was adopted Art. 16.

15 C, U. S. as ratified by the convention of Virginia.

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terms of it, can be ascertained only by recurrence to the very instrument, by which it was first given. And as the foregoing declaration not only constitutes a part of that instrument, but contains a preliminary protest against any extension of the enumerated powers thereby granted to the federal government, it could scarcely have been imagined, that any violation of a principle so strenuously asserted, and made, as it were, the sole ground of the pragmatic sanction, would ever have been attempted by the federal

government.

"But however reasonable such an expectation might have been, a very few years evinced a determination on the part of those who then ruled the public councils of the United States, to set at nought all such restraints. An act accordingly was passed by the congress on the fourteenth of July, 1798, whereby it was enacted, that 'if any person shall write, print, utter or publish any false and malicious writing against the government of the United States, or either house of congress, or the president, with intent to defame them, or either of them, or to bring them or either of them into contempt, or disrepute; or to excite against them or either of them, the hatred of the good people of the United States, then such person, being thereof convicted before any court of the United States having jurisdiction thereof shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.' The act was limited in it's duration to the third day of March, 1801, the very day on which the period for which the then president was elected, was to expire; and, previous to which the event of the next presidential

election must be known.

"The consequences of this act, as might have been foreseen, were a general astonishment, and dissatisfaction, among all those who considered the government of the United States, as a limited system of government; in it's nature altogether federal, and essentially different from all others which might lay claim to unlimited powers; or even to national, instead of federal authority. The constitutionality

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16 L. U. S. 5 Cong. c. 91.

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of the act was accordingly very generally denied, or questioned, by them. They alleged, that it is to the freedom of the press, and of speech, that the American nation is indebted for its liberty, it's happiness, it's enlightened state, nay more, for it's existence. That in these states the people are the only sovereign: that the government established by themselves, is for their benefit; that those who administer the government, whether it be that of the state, or of the federal union, are the agents and servants of the people, not their rulers or tyrants .... That these agents must be, and are, from the nature and principles of our governments, responsible to the people, for their conduct. That to enforce this responsibility, it is indispensibly necessary that the people should inquire into the conduct of their agents; that in this inquiry, they must, or ought to scrutinize their motives, sift their intentions, and penetrate their designs; and that it was therefore, an unimpeachable right in them to censure as well as to applaud; to condemn or to acquit; and to reject, or to employ them again, as the most severe scrutiny might advise. That as no man can be forced into the service of the people against his own will and consent; so if any man employed by them in any office, should find the tenure of it too severe, because responsibility is inseparably annexed to it, he might retire: if he can not bear scrutiny, he might resign: if his motives, or designs, will not bear sifting; or if censure be too galling to his feelings, he might avoid it in the shades of domestic privacy. That if flattery be the only music to his ear, or the only balm to his heart; if he sickened when it is withheld, or turned pale when denied him; or if power, like the dagger of Macbeth, should invite his willing imagination to grasp it, the indignation of the people ought immediately to mark him, and hurl him from their councils, and their confidence forever. That if this absolute freedom of inquiry may be, in any manner, abridged, or impaired by those who administer the government, the nature of it will be instantly changed from a federal union of representative democracies, in which the people of the several states are the sovereign, and the administrators of the government their agents, to a consolidated oligarchy, aristocracy, or monarchy, according to the prevailing caprice of the constituted authorities, or of those who may usurp them. That where absolute freedom of discussion is prohibited, or restrained, responsibility vanishes. That any attempt to prohibit, or restrain that freedom, may well be construed to proceed from conscious guilt. That the people of America have always manifested a most jealous sensibility, on the subject of this inestimable right, and have ever regarded it as a fundamental principle in their government, and carefully engrafted in the constitution. That this sentiment was generated in the American mind, by an abhorrence of the maxims and principles of that government which they had shaken off, and a detestation of the abominable persecutions, and extrajudicial dogmas, of the still odious court of star-chamber; whose tyrannical proceedings and persecutions, among other motives of the like nature, prompted and impelled our ancestors to fly from the pestilential government of their native country, to seek an asylum here; where they might enjoy, and their posterity establish, and transmit to all future generations, freedom, unshackled, unlimited, undefined. That in our time we have vindicated, fought for, and established that freedom by our arms, and made it the solid, and immovable basis and foundation both of the state, and federal government. That nothing could more clearly evince the inestimable value that the American people have set upon the liberty of the press, than their uniting it in the same sentence, and even in the same member of a sentence, with the rights of conscience, and the freedom of speech. And since congress are equally prohibited from making any law abridging the freedom of speech, or of the press, their boldly challenged their adversaries to point out the constitutional distinction, between those two modes of discussion, or inquiry. If the unrestrained freedom of the press, said they, be not guaranteed, by the constitution, neither is that of speech. If on the contrary the unrestrained freedom of speech is guaranteed, so also, is that of the press. If then the genius of our federal constitution has vested the people of the United States, not only with a censorial power, but even with the sovereignty itself; if magistrates are, indeed, their agents: if they are responsible for the acts of agency; if the people may not only censure who they disapprove, but reject whom they may find unworthy; if approbation or censure, election or rejection, ought be the result of inquiry, scrutiny, and mature deliberation; why, said they, is the exercise of this censorial power this sovereign right, this necessary inquiry, and scrutiny to be confined to the freedom of speech? Is it because the mode of discussion better answers the purposes of the censorial power? Surely not. The best speech can not be heard, by any great number of persons. The best speech may be misunderstood, misrepresented, and imperfectly remembered by those who are present. To all the rest of mankind, it is, as if it had never been. The best speech must also be short for the investigation of any subject of an intricate nature, or even a plain one, if it be of more than ordinary length. The best speech then must be a together inadequate to the due exercise of the censorial power, by the people. The only adequate supplementary aid for these defects, is the absolute freedom of the press. A freedom unlimited as the human mind; viewing all things, penetrating the recesses of the human heart, unfolding the motives of human actions, and estimating all things by one invaluable standard, truth; applauding those who deserve well; censuring the undeserving; and condemning the unworthy, according to the measure of their demerits.

"In vindication of the act, the promoters and supporters of it, said, (l7) that a law to punish false, scandalous, and malicious writings against the government, with intent to stir up sedition, is a law necessary for carrying into effect the power vested by the constitution in the government a the United States, and consequently such a law as congress may pass. To which it was answered, that even were the premises true, it would not authorize congress to pass an act to punish writings calculated to bring congress, or the president into contempt or disrepute. Inasmuch as such

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17 See the report of a committee of congress, respecting the alien and sedition laws, Feb. 25, 1798.

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contempt or disrepute may be entertained for them, or either of them, without incurring the guilt of sedition, against the government, and without the most remote design of opposing, or resisting any law, or any act of the president done in pursuance of any law: one or the other of which would seem necessary to constitute the offense, which this argument defends the right of congress to punish, or prevent.

"It was further urged in vindication of the act, that the liberty of the press consists not in a licence for every man to publish what he pleases, without being liable to punishment for any abuse of that licence; but in a permission to publish without previous restraint; and, therefore, that a law to restrain the licentiousness of the press, cannot be considered as an abridgment of its liberty. (18)

"To which it was answered that this exposition of the liberty of the press, was only to be found in the theoretical writings of the commentators on the English government, where the liberty of the press rests upon no other ground, than that there is now no law which imposes any actual previous restraint upon the press, as was formerly the case: which is very different from the footing upon which it stands in the United States, where it is made a fundamental article of the constitutions, both of the federal and state governments, that no such restraint shall be imposed by the authority of either.... That if the sense of the state governments be wanting on the occasion, nothing can be more explicit than the meaning and intention of the state of Virginia, at the moment of adopting the constitution of the United States; by which it will clearly appear that it never was the intention of that state (and probably of no other in the union) to permit congress to distinguish between the liberty and licentiousness of the press; or, in any manner to 'cancel, abridge, restrain, or modify' that inestimable right.

"Thirdly it was alleged, that the act could not be unconstitutional because it made nothing penal, which was not

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18 See the report of a committee of congress, respecting the alien and sedition laws, February 25, 1799.

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penal before, being merely declaratory of the common law, (19) viz. of England.

"To this it was, among other arguments, answered. That the United States as a federal government have no common law. That although the common law of England, is, under different modifications, admitted to be the common law of the states respectively, yet the whole of the common law of England has been no where introduced: that there is a great and essential difference, in this respect, in the several states, not only in the subjects to which it is applied, but in the extent of its application. That the common law of one state, therefore, is not the common law of another. That the constitution of the United States has neither created it, nor conferred it upon the federal government. And, therefore, that government has no power or authority to assume the right of punishing any action, merely because it is punishable in England, or may be punishable in any, or all the states, by the common law.

"The essential difference between the British government and the American constitutions was moreover insisted on, as placing this subject in the clearest light. In the former, the danger of encroachment on the rights of the people, was understood to be confined to the executive magistrate.

The representatives of the people in the legislature are not only exempt themselves, from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the executive. Hence it is a principle, that the parliament is unlimited in it's power, or, in their own language, is omnipotent. Hence too, all the ramparts for protecting the rights of the people, such as their magna charta, their bill of rights, &c. are not reared against the parliament, but against the royal prerogative. They are mere legislative precautions against executive usurpations. Under such a government as that, an exemption of the press from previous restraints, by licencers from the king, is all the freedom that can be secured to it, there: but, that in the United States the case is altogether

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19 See the report of a committee of congress, respecting the alien and sedition laws, February 25, 1789.

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different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence in the United States, the great and essential rights of the people, are secured against legislative, as well as against executive ambition. They are secured, not by laws paramount to prerogative; but by constitutions paramount to laws. This security of the freedom of the press requires, that it should be exempt, not only from previous restraint by the executive, as in Great-Britain; but from legislative restraint also; and this exemption, to be effectual, must be an exemption, not only from the previous inspection of licencers, but from the subsequent penalty of laws....A further difference between the two governments was also insisted on. In Great-Britain, it is a maxim, that the king, an hereditary, not a responsible magistrate, can do no wrong; and that the legislature, which in two thirds of it's composition, is also hereditary, not responsible, can do what it pleases. In the United States, the executive magistrates are not held to be infallible, nor the legislatures to be omnipotent; and both being elective, are both responsible. That the latter may well be supposed to require a greater degree of freedom of animadversion than might be tolerated by the genius of the former. That even in England, notwithstanding the general doctrine of the common law, the ministry, who are responsible to impeachment, are at all times animadverted on, by the press, with peculiar freedom. That the practice in America must be entitled to much more respect: being in most instances founded upon the express declarations contained in the respective constitutions, or bill of rights of the confederated states. (20) That even in those states where no such guarantee could be found, the press had

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20 See the Virginia bill of rights, Art. 12. Massachusetts, Art. 16. Pennsylvania, Art. 12. Delaware, Art. 23. Maryland, Art. 38. North-Carolina, Art. 15. South-Carolina, Art. 43. Georgia, Art. 61. The constitution of Pennsylvania, Art. 35, declares, "That the printing presses shall he free to every person who undertakes to examine the proceedings of the legislature or any part of the government. And the bill of rights of Vermont, Art. 15, is to the same effect.

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always exerted a freedom in canvassing the merits, and measures of public men of every description, not confined to the limits of the common law. That on this footing the press has stood even in those states, at least, from the period of the revolution.

"The advocates and supporters of the act alleged, fourthly; That had the constitution intended to prohibit congress from legislating at all, on the subject of the press, it would have used the same expressions as in that part of the clause, which relates to religion, and religious tests; whereas, said they, there is a manifest difference; it being evident that the constitution intended to prohibit congress . from legislating at all, on the subject of religious establishments, and the prohibition is made in the most express terms. Had the same intention prevailed respecting the press, the same expression would have been used, viz. 'Congress shall make no law respecting the press.' They are not, however, prohibited, added they, from legislating at all, on the subject, but merely from abridging the liberty of the press. It is evident, therefore, said they, that congress may legislate respecting the press: may pass laws for it's regulation, and to punish those who pervert it into an engine of mischief, provided those laws do not abridge it's liberty. A law to impose previous restraints upon the press, and not one to inflict punishment on wicked and malicious publications, would be a law to abridge the liberty of the press.

"To this it was answered, that laws to regulate, must, according to the true interpretation of that word, impose . rules, or regulations, not before imposed; that to impose rules is to restrain; that to restrain must necessarily imply an abridgment of some former existing rights, or power: consequently, when the constitution prohibits congress from making any law abridging the freedom of speech, or of the press, it forbids them to make any law respecting either of these subjects. That this conclusion was an inevitable consequence of the injunction contained

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21 See the report of a committee of congress, to whom were referred several petitions for the repeal of the alien and sedition laws. February 25, 1799.

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in the amendment, unless it could be shown, that the existing restraints upon the freedom of the press in the United States, were such as to require a remedy, by a law regulating (but not abridging) the manner in which it might be exercised with greater freedom and security. A supposition, which it was believed no person would maintain. That the necessary consequence of these things is, that the amendment was meant as a positive denial to congress, of any power whatever, on the subject.

"As an evidence on this subject, which must be deemed absolutely conclusive, it was observed, That the proposition of amendments made by congress, is introduced in the following terms: 'The conventions of a number of states, having, at the time of their adopting the constitution, expressed a desire, in order to prevent misconstruction, or abuse of its powers, that further declaratory and restrictive clauses should be added; and, as extending the ground of public confidence in the government, will best ensure the beneficent ends of it's institution:' which affords the most satisfactory and authentic proof, that the several amendments proposed, were to be considered as either declaratory, or restrictive; and whether the one or the other, as corresponding with the desire expressed by a number of states, and as extending the ground of public confidence in the government. That under any other construction of the amendment relating to the press, than that it declared the press to be wholly exempt from the power of congress.... the amendment could neither be said to correspond with the desire expressed but a number of the states, nor be calculated to extend the ground of public confidence in the government. Nay more; that the construction employed to justify the 'Sedition Act,' would exhibit a phenomenon without a parallel in the political world. It would exhibit a number of respectable states, as denying first that any power over the press was delegated by the constitution; as proposing next, that an amendment to it should explicitly declare, that no such power was delegated; and finally as concurring in an amendment actually recognizing, or delegating such a power.

"But, the part of the constitution which seems to have been most recurred to, and even relied on, in defence of the act of congress, is the last clause of the eighth section of the first article, empowering congress 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof.' (22)

"To this it was answered, that the plain import of that clause, that congress shall have all the incidental, or instrumental powers, necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. That it is not a grant of new powers to congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant. Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is; properly incidental to an express power, and necessary to its execution. If it be, it may be exercised by congress. If it be not, congress cannot exercise it....That, if the sedition law be brought to this kind of test, it is not even pretended by the framers of that act, that the power over the press, which is exercises there, can be found among the powers expressly vested in congress. That if it be asked, whether there is any express power, for executing which, that act is a necessary and a proper power: the answer is, that the express power which has been selected, at least remote from that exercised by the act, is the power of suppressing insurrection;' which is said to imply a power to prevent insurrection, by punishing whatever may lead, or tend to them. But it surely cannot, with the

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22 See the report of a committee of congress, Feb. 25, 1799- and the

answer of the senate and house of representatives of Massachusetts.

(Feb. 9th and 13th 1799), to the communications from the state of

Virginia, on the subject of the alien and sedition laws.

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least plausibility, be said, that a regulation of the press, and the punishment of libels, are exercises of a power to suppress insurrections. That if it be asked, whether the federal government has no power to prevent, as well as punish, resistance to the laws; the proper answer is, that they have the power, which the constitution deemed most proper in their hands for the purpose. That congress has power, before it happens, to pass laws for punishing such resistance; and the executive and judiciary have a power to enforce those laws, whenever it does actually happen. That it must be recollected by many, and could be shown to the satisfaction of all, that this construction of the terms 'necessary and proper,' is precisely the construction which prevailed during the discussions and ratifications of the constitution: and that it is a construction absolutely necessary to maintain their consistency with the peculiar character of the government, as possessed of particular and defined powers only; not of the general and indefinite powers vested in ordinary governments. That if this construction be rejected, it must be wholly immaterial, whether unlimited powers be exercised under the name of unlimited powers, or be exercised under the name of unlimited means of carrying into execution limited powers.

"To those who asked, if the federal government be destitute of every authority for restraining the licentiousness of the press, and for shielding itself against the libellous attacks which may be made on those who administer it; the reply given was, that the constitution alone can answer the question: that no such power being expressly given; and such a power not being both necessary and proper to carry into execution any express power; but, above all, such a power being expressly forbidden by a declaratory amendment to the constitution, the answer must be, that the federal government is Destitute of all such authority. (23)

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"In the preceding sketch of the arguments used to demonstrate the unconstitutionality of the act of congress, I have extracted a few of those contained in the report of the committee of the house of delegates of Virginia, agreed to by the house, Jan. 11, 1800, and afterwards concurred in by the senate. This most valuable document is very long, and is incapable of being abridged, without manifest injury.

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"This very imperfect sketch may be sufficient to afford the student some idea of the magnitude and importance of a question, which agitated every part of the United States, almost to a degree of convulsion: the controversy not being confined to the closets of speculative politicians, or to the ordinary channels of discussion through the medium of the press; but engrossing the attention, and calling forth the talents and exertions of the legislatures of several of the states in the union, on the one hand, and of the federal government, and all its branches, legislative, executive, and judiciary, on the other. For no sooner had the act passed, than prosecutions were commenced against individuals in several of the states: they were conducted, in some cases, with a rigour, which seemed to betray a determination to convert into a scourge that, which it had been pretended was meant only to serve as a shield.

"The state of Kentucky was; the first which took the act under consideration, and by a resolution passed with two dissenting voices only, declared the act of congress not law, but altogether void, and of no force. The state of Virginia, though posterior to her younger sister in point of time, was not behind her in energy. The general assembly at their first session after the passage of the act, did 'explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants contained in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them' .... 'That a spirit hath, in sundry instances, been manifested by the federal government, to enlarge its powers, by forced constructions of the constitutional charter which defines them; and to expound certain general phrases ( copied from the very limited grant of powers in the former articles of confederation, and therefore less liable to be misconstrued ) so as to destroy the meaning and effect of the particular enumeration, which necessarily explains and limits the general phrases; so as to consolidate the states, by degrees, into one sovereignty.' That the 'general assembly doth, particularly protest against the palpable and alarming infractions of the constitution, in the two cases of the alien and sedition acts, passed at the last session of congress; the first of which exercises a power no where delegated to the federal government; and the other exercises, in like manner, a power not delegated by the constitution; but, on the contrary, expressly and positively forbidden by one of the amendments thereto; a power which, more than any other, ought to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.'

" 'That this state having by its convention, which ratified the federal constitution, expressly declared, that among other essential rights, "the liberty of conscience, and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States," and from its extreme anxiety to guard these rights from every possible attack of sophistry, or ambition, having, with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the constitution; it would mark a reproachful inconsistency and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of the rights, thus declared and secured; and to the establishment of a precedent, which may be fatal to the other.'

" 'That feeling the most sincere affection for their sister states; the truest anxiety for establishing and perpetuating the union; and the most scrupulous fidelity to the constitution which is the pledge of mutual friendship; and solemnly appealing 'to the like disposition of the other states, in confidence that they will concur with this commonwealth in declaring, (as it does hereby declare,) that the acts aforesaid are unconstitutional; and that the necessary and proper measures will be taken by each, for cooperating with this state, in maintaining the authorities, rights and liberties, reserved to the states respectively, or to the people.' (24)

"Answers were received from the legislatures of seven states, disapproving of the resolutions of Virginia and Kentucky, which had also been transmitted with a similar proposition. The general assembly of Massachusetts alone, condescended to reason with her sister states; the others scarcely paid them the common respect that is held to be due from individuals, to each other. The assembly of Virginia at their next session, entered into a critical review and examination of their former resolutions, and supported them by a train of arguments, and of powerful convincing, and unsophistic reasoning, to which, probably the equal cannot be produced in any public document, in any country. (25) They concluded this examination and review (which occupied more than eighty pages) with resolving, 'That having carefully and respectfully attended to the proceedings of a number of the states, in answer to their former resolutions, and having accurately and fully re-examined and reconsidered the latter, they found it to be their indispensable duty to adhere to the same, as founded in truth, as consonant with the constitution, and as conducive to its preservation; and more especially to be their duty, to renew, as they do hereby renew their protest against the alien and sedition acts, as palpable and alarming infractions of the constitution.'

"Meantime, petitions had been presented to congress for the repeal of those obnoxious acts: on the 25th of February, 1799, congress agreed to the report of a committee, advising them, that it would be inexpedient to repeal them. A majority of four members, only, prevailed on this occasion. During the session which succeeded, strenuous exertions were made for the continuance of the act commonly called the sedition act, (the other concerning aliens, having expired): After a severe struggle, the attempt failed,

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24 See the sessions acts of 1798, ad finem.

25 See the report of the committee, on this subject, agreed to in the house of delegates, Jan. 11, 1800.

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and the act was permitted to expire, at the same moment that put a period to the political importance of those, for whose benefit, alone, it seems to have been intended.

"We may now, I trust, say with our former envoys to the republic of France: 'The genius of the constitution cannot be overruled by those who administer the government. Among those principles deemed sacred in America; among those sacred rights, considered as forming the bulwark of their liberty, which the government should contemplate with awful reverence, and approach only with the most cautious circumspection, there is none of which the importance is more deeply impressed on the public mind, than the liberty of the press.' (26).

"It may be asked, perhaps: is there no remedy in the United States for injuries done to the good fame and reputation of a man; injuries, which to a man of sensibility, and of conscious integrity, are the most grievous that can be inflicted; injuries, which when offered through the medium of the press, may be diffused throughout the globe, and transmitted to latest posterity; may render him odious, and detestable in the eyes of the world, his country, his neighbours, his friends, and even his own family; may seclude him from society as a monster of depravity, and iniquity; and even may deprive him of sustenance, by destroying all confidence in him, and discouraging that commerce, or intercourse with him, which may be necessary to obtain the means?

"Heaven forbid, that in a country which boasts of rational freedom, and of affording perfect security to the citizen for the complete enjoyment of all his rights, the most valuable of all should be exposed without remedy, or redress, to the vile arts of detraction and slander! Every individual, certainly, has a right to speak or publish, his sentiments on the measures of government: to do this without restraint, control, or fear of punishment for so doing, is that which constitutes the genuine freedom of the press. The danger justly apprehended by those states which

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26 See the letters from Messrs. Marshall, Binckney, and Gerry, to Mons. Talleyrand, minister of foreign affairs in France, 1798.

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insisted that the federal government should possess no power, directly or indirectly, over the subject, was, that those who were entrusted with the administration might be forward in considering everything as a crime against the government, which might operate to their own personal disadvantage; it was therefore made a fundamental article of the federal compact, that no such power should be exercised, or claimed by the federal government; leaving it to the state governments to exercise such jurisdiction and control over the subject, as their several constitutions and laws permit. In contending therefore for the absolute freedom of the press, and its total exemption from all restraint, control, or jurisdiction of the federal government, the writer of these sheets most explicitly disavows the most distant approbation of its licentiousness. A free press, conducted with ability, firmness, decorum, and impartiality, may be regarded as the chaste nurse of genuine liberty; but a press stained with falsehood, imposture, detraction, and personal slander, resembles a contaminated prostitute, whose touch is pollution, and whose offspring bears the foul marks of the parent's ignominy.

"Whoever makes use of the press as the vehicle of his sentiments on any subject, ought to do it in such language as to show he has a deference for the sentiments of others; that while he asserts the right of expressing and vindicating his own judgment, he acknowledges the obligation to submit to the judgment of those whose authority he cannot legally, or constitutionally dispute. In his statement of facts he is bound to adhere strictly to the truth; for any deviation from the truth is both an imposition upon the public, and an injury to the individual whom it may respect. In his restrictures on the conduct of men, in public stations, he is bound to do justice to their characters, and not to criminate them without substantial reason. The right of character is a sacred and invaluable right, and is not forfeited by accepting a public employment. Whoever knowingly departs from any of these maxims is guilty of a crime against the community, as well as against the person injured; and though both the letter and the spirit of our federal constitution wisely prohibit the congress of the United States from making any law, by which the freedom of speech, or of the press may be exposed to restraint; and persecution under the authority of the federal government, yet for injuries done the reputation of any person, as an individual, the state courts are always open, and may afford ample, and competent redress, as the record of the courts of this commonwealth abundantly testify."

This discussion of Blackstone's conception of mental constitutional freedom meets every issue so frankly and fairly as, in that respect, to make it a suitable model for judicial imitation. This edition of Blackstone, being published in 1803, must have been well known to Justice Kent in 1810, when he decided the Ruggles case. Likewise it must have been familiar to Justice Shaw when he decided the Kneeland case. That both of them should have ignored its existence and its argument, in deciding so important a problem as the meaning of constitutional religious liberty, speaks much more eloquently for their prejudices than it does for the maturity of their intellectual processes or of their conception of intellectual honesty.

IN CONCLUSION.

In the foregoing discussion Judge Tucker has given an exposition and justification of Jefferson's and Virginia's conception of the intelligent interpretation of constitutional intellectual liberty, religious or otherwise. In Reynolds vs. U. S., (28) the Supreme Court of the United States has practically endorsed it. Another authority still higher has also given it even a more specific approval. I refer to the people of the United States. Their interpretation of the constitution is higher than that of the court because they created both the court and the constitution. In the election of Thomas Jefferson to the presidency the dominant issue was his conception of constitutional intellectual liberty as against the Tory interpretation of it, which latter was a defense of the alien and sedition law. By the election of Jefferson on that issue, the people of the United States who had created the constitution, also declared its meaning. Jefferson accordingly pardoned all

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28 Reynolds v. U. S., 98 U. S. 145.

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the convicts under the law (29) because it was unconstitutional and void. The subsequent return of all fines, by act of congress, executed this popular interpretation of the constitution and acknowledged it upon the highest plane of authority that is possible in a republic. This view also placed the constitution in harmony with the continental congress which had previously declared that we need liberty of the press that "oppressive officials are shamed or intimidated into more honorable and just modes of conducting affairs." (30) So the United States of America as a nation and in the most authoritative manner that is possible, has repudiated Blackstone's conception of mental freedom. Now intellectual liberty, according to this most authoritative interpretation, means that no man shall be punished for the expression of ideas as such, or their tendency speculatively ascertained, no matter what they are or how expressed, but he may be punished for another resultant overt act designed and efficient for inflicting an actual and material injury, as distinguished from a mere psychologic tendency.

This interpretation of mental freedom by Jefferson and the American people was well known in Connecticut before the adoption of its constitution. Abraham Bishop, and the others who led the movement for the Connecticut constitution were avowed supporters and admirers of Jefferson and his doctrines. Therefore when the Connecticut constitution in 1818, provided for mental freedom, in language even more plainly and broadly libertarian than the Federal constitution it also adopted the ideas thereby expressed and, the people's previous interpretation of these constitutional guarantees.

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29 Booth vs. Ryecroft, 3 Wisc Rep. 183.

30 Journal of the Continental Congress, v. 1, p. 108, Edition, 1904.

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