"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press."

This federal declaration is typical of the declaration in the original state constitutions, as, for example, that of Massachusetts in 1780, still in force, which says:

"The liberty of the press is essential to freedom in a state. It ought not, therefore, to be restricted in this commonwealth"

Very many state constitutions to-day adopt the definition of the liberty of the press given by Hamilton in his argument in Croswell's case in New York in 1804.(1) As fairly typical of these present Hamiltonian state constitutions, we may take the declaration of liberty of the press in the present Illinois constitution of 1870, which reads as follows:

"Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.(2)

The nearly if not quite unanimous expressed view of our judges always has been, and is, that the constitutional declarations of liberty of the press are only declaratory of the English common -law right protected by the English courts at the time of the Revolution, like, for example, the declaration of the right of trial by jury, and are not expansive of that right or creative of a new right unknown to the English common law. They accept the definition of the right given by Blackstone, Lord Mansfield, and Lord Kenyon as the right line of constitutional law separating liberty from license. Blackstone said in the fourth book of his Commentaries, first published in 1769:

"The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication; and not in freedom from censure for criminal matter when published.(3)

In 1784 Lord Mansfield said:

"The liberty of the press consists in printing without any previous license, subject to the consequences of the law.

"The licentiousness of the press is Pandora's Box, the source of every evil. Miserable is the condition of individuals, dangerous is the condition of the state if there is no certain law (or what is the same thing), no certain administration of law to protect individuals or to guard the state"(4)

In 1799, seven years after Fox's Libel act of 1792, Lord Kenyon said:

"The liberty of the press is dear to England. The licentiousness of the press is odious to England. The liberty of it can never be so well protected as by beating down the licentiousness. I said that the liberty of the press was dear to Englishmen, and I will say that nothing can put that in danger but the licentiousness of the press.

"The liberty of the press is neither more nor less than this, that a man may publish anything which twelve of his countrymen think is not blamable, but that he ought to be punished if he publishes that which is blamable.(5)

American judges early took the view that this English common-law definition that "liberty of the press consists in printing without any previous license, subject to the consequences of law" is a correct definition of the right of liberty of the press declared in our first constitutions, and that, therefore, those constitutional declarations left standing the English common law of libel as declared by the English courts after 1694, when the last English licensing act expired and Parliament refused to renew it, and before the American Revolution. This view was first expressed by Chief Justice McKean of Pennsylvania in 1788 in Oswald's case, wherein the editor of a newspaper was punished by the summary criminal process of contempt of court for a publication censuring his adversary and one of the judges in a pending case to which the editor was the defendant.(6) The same judge expressed the same view in 1797 in his charge to the grand jury in Philadelphia that indicted Cobbett for an alleged seditious publication in Porcupine's

Gazette censuring the administration at Washington. (7) The view lies at the base of the federal Sedition act of 1798 and its judicial administration by Judges Chase and Patterson of the United States Supreme Court and Judges Griffin, Hitchcock and Peters of the United States District Court, as appears from their summing up to the juries in the prosecution of Callender, Cooper, and Haswell, and Lyon under that act for alleged seditious publications censuring the administration of John Adams.(8) The view was expressed by Chief Justice Parker of Massachusetts in 1825 in Blanding's case, which was a criminal prosecution for a publication in a newspaper defamatory of an innkeeper in his calling. (9) And the view was expressed more or less directly by the judge in prosecution for blasphemous publications in the courts of different states, by Chief Justice Kent in Ruggle's case in New York in 1811, Judge Duncan in Updegraph's case in Pennsylvania in 1824, by Chief Justice Clayton in Chandler's case in Delaware in 1837, and by Chief Justice Shaw in Kneeland's case in Massachusetts in 1838.(10) The view forms the whole of the foundation of the modern and rather numerous cases in state courts wherein strangers to pending and not pending lawsuits were fined or imprisoned under the summary criminal process of contempt of court for publications censuring judges for their administration of the law. And the view perhaps accounts in part for the common judicial classification of the right of liberty of the press under the head of "qualified privilege" in the ordinary law of libel along with the privilege of an employer giving the character of a servant to publish defamatory falsehood about the servant in the honest belief it is truth. One of the latest judicial expressions of the view is by Mr. Justice Holmes speaking for the majority of the United States Supreme Court in 1906 in Senator Patterson's case, on error to the Colorado Supreme Court under the Fourteenth Amendment, wherein the learned Justice said:

"The main purpose of such constitutional provisions [declaring liberty of the press] is to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare"(11)

The work which the constitutional declarations threw upon the judges was to draw the line of law that separates liberty from license, and the question here is whether the judges are right in saying Blackstone, Lord Mansfield, and Lord Kenyon did the work for them by anticipation.

At the time of the Revolution the English common law divided unlawful publications into four species of libel, viz.: defamatory of personal or professional reputation; seditious libels, or publications defamatory of existing public officers, government, institutions, and laws; blasphemous libels, or publications defamatory of the Christian religion; obscene and immoral libels, or publications defamatory of England's existing standard of public morality. If a given publication did not encounter any one of these four species of libel, then it was a lawful publication in exercise of the right of liberty of the press. By the negative process of exclusion, the sphere of liberty of the press was outlined.

The great subjects of public discussions in England at the time were religion and politics, and especially politics. The King's Bench was the criminal court of practically exclusive jurisdiction of all criminal prosecutions for libel. Lord Mansfield became its lord chief justice in 1756, holding the office until 1788, when he was succeeded by Lord Kenyon, who held the office until 1802. Lord Mansfield laid it down clearly that the English common law test to be applied to determine the seditious character of publications on politics was their tendency as opinion-makers to create and diffuse among the people an ill opinion of existing public officers, government, institutions, and laws. The same rule governed publications on religion; their tendency to create and diffuse among the people an ill opinion of the Christian religion was the test to be applied to determine whether they were unlawful as blasphemous libels. Likewise publications were unlawful as obscene and immoral libels if their tendency was to create and diffuse among the people an ill opinion of existing standards of morality; and publications were unlawful as defamatory libels if their tendency was to create and diffuse among the people an ill opinion of the personal or professional reputations of the persons referred to, though here it seems actual objective tendency as a matter of fact was more emphasized and important than in the other cases of seditious, blasphemous, and obscene and immoral libels, where supposed tendency as a matter of abstract, subjective speculation seems to have been controlling and decisive. The remedy for a publication alleged to be a defamatory libel was either a civil action for damages by the person whose personal or professional reputation was involved, or a criminal prosecution by the Attorney-General. The remedy for a publication alleged to be a seditious libel, a blasphemous libel, or an obscene and immoral libel, was a criminal prosecution. In a civil action for a defamatory libel the truth of the publication was a decisive answer, the burden of proving the truth being on the defendant author and publisher. In all criminal prosecutions , whether for defamatory libel, seditious libel, blasphemous libel, or obscene and immoral libel, the truth or falsity of the publication was of no importance. "The greater the truth the greater the libel" was the maxim in all criminal prosecutions.

When the legal test of the lawfulness of a publication is its tendency as an opinion-maker to create and diffuse among the people an ill opinion of existing things, the tribunal to apply the test is a matter of great importance. Lord Mansfield laid it down with his usual simplicity and lucidity of expression that the exclusive tribunal to apply the test of tendency was the judges of the King's bench sitting in banc to hear and decide a motion by the defendant in arrest of judgment after the verdict of a jury finding the defendant guilty; that the jury had nothing whatever to do with the tendency of the publication as an opinion-maker, and consequently that the trial had no right to leave the question of tendency to the jury in any shape or form, but must withdraw that question from the jury by directing the members of the jury that they had nothing to do with it and must not assume to pass on it. Erskine's fight for liberty of the press at the bar of the King's Bench was from a legal point of view a procedural fight to substitute the twelve men in the jury-box in the place of the judges on the bench on the issue of libel or no libel. Taking his stand on the maxim dividing the province of the jury from the province of the judge, assigning questions of fact within the issue of the jury and the questions of law to the judge, Erskine first contended for the substantive-law point that the "intent" or "criminal intent" of the author and publisher was the true test of libel or no libel, and the question of "intent" or "criminal intent" was a question of fact for the jury exclusively. Erskine was defeated by the opinion of Lord Mansfield in the dean of St. Asaph's case in 1784, Mr. Justice Willes alone dissenting but disagreeing with Erskine. The fight for the tribunal was transferred to Parliament. In Fox's Libel act of 1792 Parliament declared in favor of Mr. Justice Willes' view of the English common law on the procedural point of the tribunal authorized to apply the test of tendency. The act required the trial judge to submit the question of tendency to the jury, and declared the jury was the exclusive tribunal on the question of tendency only when it decided the question in favor of the defendant, but left the judges as the exclusive tribunal when the jury found the question against the defendant. In short, after Fox's act the prosecution had to convince both the jury and the judges of the bad tendency of the publication as an opinion-maker, while the defendant had to convince only the jury of its good or indifferent or harmless tendency as an opinion-maker. The result of the fight for the tribunal was, as Lord Kenyon expressed it, that before Fox's act liberty of the press in England meant nothing more nor less than that a man could publish anything the judges sitting in banc as subsequent `or ex post facto censors of the press thought was not blamable, while after Fox's act a man could publish anything a jury sitting as subsequent ex post facto censors of the press thought was not blamable; but if the jury thought the publication was blamable, there was a second thought coming from the judges, who could set aside the verdict of the jury against the defendant and substitute in its place their own verdict in his favor if they thought the publication was not blamable, meaning by "not blamable" having no bad tendency as an opinion-maker to excite and move the people to change existing things, and by "the people" the multitude or "the masses".

Lord Mansfield and his associates did fine men and send them to jail for their published political opinions because they thought the published political opinions in question had a bad tendency to excite the people to put men out of office and put others in their places, to subvert existing government, institutions, and laws of the country as it was called by creating and diffusing through the community an ill opinion of them. And they did in fact fine men and send them to jail for their published opinions on the Christian religion, because they thought the published opinions in question had a bad tendency to subvert Christianity by creating and diffusing an ill opinion of it among the people.(12)

As to publications on religion at the time of the Revolution, the English judges were pronouncing them blasphemous under the law laid down by Lord Hale in 1676, viz.:

"Christianity being parcel of the laws of England, therefore to reproach the Christian religion is to speak in subversion of the law"(13)

In 1767 Lord Mansfield said:

"the eternal principles of natural religion are part of the common law; the essential principles of revealed religion are part of the common law; so that any person reviling, subverting, or ridiculing them may be prosecuted at common law."(14)

In 1797 Lord Kenyon told the jury in the prosecution of a publisher of Paine's Age of Reason that "the Christian religion is part of the law of the land."(15) As it was popularly put, the English judges were proceeding on the view that God had a reputation to maintain and needed the help of the English Common law to support it.

At the time of the Revolution, then, the line of English common law separating liberty of the press from licentiousness was the opinion was the opinion of the judges of the King's Bench on the tendency of publications, true or false, to excite and move the people to change the existing order; and that meant the opinion of Lord Mansfield, whose influence in the King's Bench was commanding and controlling. Is it true, as our judges keep telling us, that the original declarations of liberty of the press did nothing to forbid previous censorship, putting American judges into the shoes of Lord Mansfield as subsequent or ex post facto censors of publications, true or false?

With reference to the English common law of seditious publications, Sir James Fitzjames Stephen begins his story of it in his History of the Criminal Law of England with these observations. (16)

"Two different views may be taken of the relation between rulers and their subjects. If the ruler is regarded as the superior of the subject, as being by the nature of his position presumably wise and good, the rightful ruler and guide of the whole population, it must necessarily follow that it is wrong to censure him openly; that even if he is mistaken his mistakes should be pointed out with the utmost respect, and that whether mistaken or not no censure should be cast upon him likely or designed to diminish his authority..

"If on the other hand the ruler is regarded as the agent and servant, and the subject as the wise and good master who is obliged to delegate his power to the so-called ruler because being a multitude he cannot use it himself, it is obvious that this sentiment must be reversed. Every member of the public who censures the ruler for the time being exercises his own person the right which belongs to the whole of which he forms a part. He is finding fault with his servant. If others think differently they can take the other side of the dispute, and the utmost that can happen is that the servant will be dismissed and another put in his place, or perhaps that the arrangements of the household will be modified. To those who hold this view fully and carry it out to all its consequences, there can be no such offense as sedition. There may indeed may be breaches of the peace which may destroy or endanger life, limb, or property, and there may be incitements to such offenses, but no imaginable censure of the government, short of a censure which has an imaginable tendency to produce such a breach of the peace, ought to be regarded as criminal.

Sir James goes on to say that the present English law of seditious publications as stated by him in his digest of the Criminal Law of England is the result of a "compromise " between these two "extreme views" of the relation between the governors and the governed. (17) The second view, however, that the governed are the master and the governors are the servants, cannot be regarded as "extreme" by an American judge. That view was promulgated in the Declaration of Independence, was vindicated by the Revolutionary War, and was made the foundation stone of the law of the land by our written constitutions. The supreme power of the people always has been a fixed legal fact in the United States, admitting of no discussion inside the courts. As related to this fixed legal fact, the constitutional declarations of liberty of the press do not involve any theory that the people are "wise and good" as Sir James Stephen suggests. They simply involve the idea that power denotes duty, expressed over and over again in English law books, commencing with the second one by Bracton, saying that the holder of the supreme power in the community ought to use it to display his reason and judgment rather than the vigor and the power.

When the supreme power is definitely lodged by law in the people, to enable them to exercise their power and perform their duty with reason and judgment and not with the vigor of mere power, they must have education and the means of education. The framers of our written constitutions did not leave this legal idea to rest for security on a necessary legal inference from the legal fact of the supremacy of the people, but expressly declared it in the constitutional declarations of the right of liberty of speech and of the press.

Many of the publications on politics in the Colonies before the Revolution were seditious and even treasonable under the English common law and its administration. One of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press. The first Continental Congress in 1774 enumerated the right of liberty of the press as one of five invaluable rights without which a people cannot be free, and declared its importance consisted

"in the advancement of truth, science, morality, and arts in general, and in the diffusion of liberal sentiments on the administration of government, the ready communication of thought between subjects, and the consequential promotion of union among them whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs."(19)

This declaration evidences the view that the right of liberty of the press is confined to matters of public concern such as those enumerated, viz.: the arts and sciences, morality, public officers and their conduct of public affairs, an does not extend to matters of private concern.

The declaration also evidences the view that truth and the right of liberty of the press are one and inseparable, the duty to publish the truth being the right expressed in terms of duty. As obedience to law is liberty, so obedience to truth is liberty of the press.

The Virginia Religious Liberty statute of 1777 declared not only the right of liberty to profess religion and to worship God, but also the right of liberty of opinion, of speech, and of the press on the subject of religion, and eliminated the English common law subjective test of supposed bad tendency in the following words:

"It is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order."

This distinction is brought out more fully in one of Dr. Furneaux's letters to Blackstone published in England and Philadelphia before the Virginia Religious Liberty statute, wherein Dr. Furneaux said:

"If it is 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 public 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, and 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 contended with pointing his penal laws against the evil over 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."(20)

While this distinction between the tendency of principles and overt facts arising from principles had special reference to the subject of religion and to nonconformists in the Christian religion, yet it applies equally to any matter of the public concern within the sphere of the right of liberty of the press. There is no difference between principles and opinions. And as respects the phrase "overt acts," since speaking is acting, and writing, printing, and publishing are acting, all publications are overt acts. But publications are not overt acts against peace and good order simply because of their supposed bad tendency as opinion-makers. As illustrating the practical application of the distinction, reference may be made to the Mormon cases in the United States Supreme Court holding the practice of polygamy, and publications teaching and advising the practice of polygamy , to be overt acts against peace and good order though arising out of opinions called religious,(21) and to Most's case in the New York Court of Appeals holding anarchists' publications teaching and advising the use of force to be overt acts against peace and good order. (22)

Reading the original declarations of the right of liberty of the press in the light of their history and without reference to judicial opinions, evidently they obliterated the English common-law test of supposed bad tendency to determine the seditious or blasphemous character of a publication, and hence obliterated the English common-law crimes of sedition and blasphemy; shifted the law of obscene and immoral publications from the region of the libel to the region of public nuisance;(23) and left standing only the law of defamatory publications, materially modifying that. Separating publications as they do into those on matters of public concern and those on matters of private concern, and applying only to the former, and truth being the dividing line between lawful and unlawful publications, the declarations wiped out the English common-law rule in criminal prosecutions for defamatory libel, "The greater the truth the greater the libel.' The declarations threw on American judges in civil and criminal actions for defamatory libel the new work of drawing the line between matters of public concern and matters of private concern, and of determining what is truth in publication on a matter of public concern.(24)

When, as ordinarily happens, a publication on a matter of public concern reflecting on personal or professional reputation, as by imputing disgraceful motives and conduct, contains both statements of fact and expressions of opinions, the two have to be separated. It is not true that liberty of the press makes lawful every published expression of opinion on matters of public concern. Published opinions may be true, or false and defamatory, just as published statements of facts may be true, or false and defamatory. If published opinion on matters of public concern are false and defamatory because of their tendency to infuse on the minds of men suspicion, distrust, and dislike for other men, and so influence their conduct, such published false opinions are just as unlawful as false statements of facts having the same tendency. An opinion ordinarily is but an inference from facts. The correct test of the truth or falsity of an opinion on a matter of public concern seems to be the one laid down by the better modern English judges in the law of fair comment on matters of public concern, viz.: Assuming the facts to be true, is the inference or opinion an allowable one? Is it an inference or opinion capable of being drawn from those facts? In other words, could or might a fair-minded average man draw the inference or opinion in question from the facts proved or admitted to be true? This leaves a wide margin for the play and action of conflicting opinions on matters of public concern, leaving the restraint of truth as to matters of fact until removed by the legislature.(25)

The true view of the original declarations of liberty of the press would appear to be, then, that they wiped out the English common-law test of supposed bad tendency as opinion-makers, and substituted the test of truth, as the dividing line between lawful and unlawful publications on matters of public concern, the restraint of truth being inflexible as applied to matters of fact until altered by the legislature,(26) but flexible enough as applied to matters of opinion to legalize any allowable opinion on any matter of public concern which any fair-minded average man could or might form from the facts, thus securing to every man the right to publish truth on any matter of public concern, the right of the editor and owner of a newspaper being no greater than the right of any other individual; and making the right to own and operate a printing press a common private-property right, because the public-education right can be exercised practically and conveniently only through the printing press.

The practical securities provided by existing law to compel observance of the restraint of truth in publications on matters of public concern, are the English common-law civil action for damages and criminal prosecution for defamatory publications. Unless published falsehood on matters of public concern has a tendency to defame personal or professional reputation or to cast suspicion on the title or quality of property, it cannot be the foundation of either a civil action for damages or a criminal prosecution. Published truth on matters of public concern cannot be defamatory, under the original declarations at least, as distinguished from the Hamiltonian declarations. But the adequacy of the power of government in the United States to punish those who fabricate and spread non-defamatory false news having a tendency to mislead the people on matters of public concern is not open to doubt. Coke says that before the Norman Conquest "the author and spreader of he false rumors amongst the people had his tongue cut out if he redeemed it not by the estimation of his head." The statute of Westminster I, in 1275, made the spreading of false news or tales a misdemeanor punishable by fine and imprisonment.(27)

Striking out some of the reasons for this old law and substituting new ones suited to the times, it gives a fairly correct measure of the power of government in the United States to stop the fabrication and spreading of non-defamatory false news likely to mislead the people on matters of public concern, without abridging the constitutional right of liberty of the press, which only requires the government to leave plenty of room for the allowable opinions or original authors and publishers like Dr. Johnson, taking "good care to see that the Whig dogs do not get the better of the argument."

The constitutional declarations did not legalize indecent, obscene, and immoral publications, however true, because of their want of educational value. Criticism of judicial decisions sustaining state statutes prohibiting such publications, and of acts of Congress excluding them from the mails, only shows a misunderstanding of the meaning of liberty of the press as a public-education right.(28) The test of indecent, obscene, and immoral publications under such state statutes and acts of Congress commonly adopted by the state and federal courts is the one laid in England in 1868 by Lord Chief Justice Cockburn, viz.: "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."(29) The test may be open to fair criticism as being too subjective in point of form, offensive to Americans devoted to equality as savoring too much of the Star-Chamber previous censor morum of the "masses" as distinguished from the "classes." In actual judicial administration, however, the test seems to work down to whether the publication in question has tendency to shock the moral sense of the average, normal head of a family, which is more objective in point of form at least, and shifts indecent, obscene, and immoral publications into the region of public nuisance. It may be that the existing test prevents truthful and useful publications of educational value on sex hygiene, commercialized vice, and other subjects, heretofore tabooed, but now thought by many fit topics for public discussion. If the courts decline to change their administration of the existing test enough to support those who are of that opinion the legislatures are there to supply the remedy. The constitutional declarations only forbid the abridgment , not the enlargement, of the right to publish on matters of public concern.

A picture, or play, including a moving-picture show, may be an exercise of the right of liberty of the press if its subject is a matter of public concern. But statutes or municipal ordinances creating previous censors of moving-picture shows to prevent exhibition of indecent , obscene, and immoral pictures and plays for the private profit would not be unconstitutional abridgments of the right of liberty of the press. No doubt it is possible for previous censors of moving-picture shows, as it is possible for previous censors of mailable matter, to become too officious and to abridge the freedom of the press under the guise of guarding the public morals and promoting the general welfare. But the evil or foolish administration of statutes is not enough to make them unconstitutional; when it invades private rights, the courts are there to correct it.

Publications advertising lotteries and other devices to make easy and quick money are not exercises of the right of liberty of the press, for that does not include the right to advertise, and if it does under the Hamiltonian state constitutions, then the right to advertise must be exercised "with good motives, for justifiable ends," which does not include getting rich quick without work. State statutes prohibiting such publications, and acts of Congress excluding them from the mails, do not abridge the freedom of press. (30)

Though liberty of the press is a legal right of American origin, to get anything like a correct view of the true meaning of it as an affirmative right, outside the ordinary law of libel, to publish truth on matters of public concern, we have to go to the modern English judicial opinions concerning fair comment on matters of public concern commencing in 1808 and 1813. (31) Our own judges seem to have forgotten that the founders of the government are not distinguished for their reception of the English common law but for their adaptation of the democratic leaning and tendency of the constitutional side of it to a new career of popular freedom and equal justice. We must look at the cases wherein American judges got into the habit of treating the constitutional declarations of liberty of the press as only declaratory of English common law of seditious, blasphemous, defamatory, obscene, and immoral libel as it stood before the Revolution.

The four blasphemy prosecutions in the state courts, the case of Ruggles in New York in 1811, of Updegraph in Pennsylvania in 1824, of Chandler in Delaware in 1837, and of Kneeland in Massachusetts in 1838, resulted in convictions.(32) It appears that in the New York and Delaware cases the publications used indecent, vulgar, and vile language concerning the birth of Christ. In the Pennsylvania case the publication pronounced the Holy Scriptures "a fable containing a number of good things, but a great many lies." And in the Massachusetts case the publication announced the author did not believe in God, saying "Universalists believe in a god which I do not; but believe that their god with all his moral attributes (aside from nature itself) is nothing more than a chimera of their own imagination." The New York prosecution was founded on the English common law in force in the colony on April 19, 1775, continued in force by the New York constitution of 1777, the constitution containing a declaration of the right of religious liberty, but no declaration of the right of liberty of the press. The other prosecutions were founded on local blasphemy statutes first passed in Colonial days. In each of the four prosecutions the chief reliance of the defendant was on the constitutional declaration of the right of religious liberty; only in the Massachusetts prosecution was the declaration of the right of liberty of the press relied on or considered by the court. In all of the cases the religious-liberty point was rejected, and rightly so in all of them except the Pennsylvania case, though upon labored and involved reasoning, owing to the fact that the judges went to the English common law to find out what religious liberty is not, without looking at the written state constitution to find out what religious liberty is, the right being of pure American origin in Rhode Island.

The declared right of religious liberty is an affirmative right to profess some religion and to worship God. A man who has no religion, rejects all religion, and denies the existence of God cannot have the right or exercise and enjoy it, because he has no practical use for it. And a man who uses indecent, vulgar, and vile language concerning any religion is not professing religion or worshipping God. The usual religious-liberty declaration, standing by itself unsupported by the declaration of liberty of speech and of the press, is not enough to secure complete freedom of the mind on the subject of religion against hostile action by the government. Indecent, vulgar, and vile language concerning any religion, Christian or non-Christian, is not an exercise of the right of liberty of the speech or press, but shocks the general sense of fair argument and debate on religion, and is an overt act against peace and good order, punishable as a public nuisance. The publications in the Pennsylvania and Massachusetts cases were exercises of the right of liberty of the press, and the convictions can be sustained only on the view of the judges that the constitutional declarations are only declaratory of the English common law. In the Delaware case Chief Justice Clayton went out of his way to lay down that doctrine, taking up and denying at length Jefferson's well-known challenge of the doctrine of Lord Hale and his successors down to and including Lord Kenyon, that Christianity is a part of the English common law.

So far as I know there has been no prosecution for blasphemy in the United States since the case of Kneeland in Massachusetts in 1838. But these four judicial decisions are set forth in our text-books on the law of libel as correctly declaring the law, and are cited to this day by the courts to the point that the constitutional declarations of liberty of the press only prohibit previous censorship, the courts usually putting the word "previous" in italics as Blackstone did, thus following anti-republican precedent verbatim, literatim, et punctuatim. (33)

The federal Sedition act of 1798, in its second section, changed the English common-law test of tendency, and, following Erskine, prescribed as the test of a seditious publication: "the intent to defame the said government, or either house of Congress or the said President or to bring either of them into contempt or disrepute, or to excite against them the hatred of the good people of the United States." The third section also changed the English common law by allowing the defendant to show the truth of the publication, and by authorizing the jury to "determine the law and the fact under the direction of the court, as in other cases." The publications printed in the four reported prosecutions of Callender, Cooper, Haswell, and Lyon (34) censured the measures of the administration of John Adams and his official connection with the President. The statements of fact were not false, and the expressions of opinion were allowable. The motives and intent of the authors unquestionably were to create and diffuse among the people an ill opinion of the administration of Adams and to move the people at the next election to put Adams out and put Jefferson in. And that was the tendency of the publications, whatever may have been the motives and intent of the authors. The publications did not teach or advise the use of force to get rid of John Adams or the Federalist party: nor did they assail the personal reputation of John Adams so far as to be defamatory. The cases resulted in verdicts of guilty and in sentences of fine and imprisonment. The judges reduced the test of intent prescribed by the statute to a fiction by inferring bad intent from the tendency of the publications as opinion-makers; and their summing up to the juries left nothing for honest jurors to do but return verdicts of guilty. They are clear cases where men were fined and imprisoned for the published political opinions, or for the supposed bad tendency of their published political opinion to move the people at the next election to change the administration at Washington. The judicially supposed bad tendency of the publications to create an ill opinion of the administration at Washington was regarded and enforced as decisive evidence of the bad intent prescribed by the Sedition act as the test of sedition.

The judges held the Sedition Act constitutional, or rather declined to hold it unconstitutional, inviting the defendants to take the question of constitutionality to the Supreme Court of the United States; but happily for the country the invitation was not accepted. The constitutionality of the act was questioned on two grounds; first, that it was outside the powers delegated to Congress; second, that it was prohibited by the First Amendment forbidding Congress to pass any law abridging the freedom of speech of the press. Assuming that the act was within the powers delegated to Congress, there can be no question that the Sedition act as construed and enforced by the judges was an unconstitutional abridgment of the freedom of the press. Liberty of the press as declared in the First Amendment and the English common-law crime of sedition cannot co-exist; and it makes no difference whether the prescribed test of sedition is in form the tendency of the publication or the intent of the author and publisher, for tendency and intent come around to the same identical thing in practical application, the tendency constituting the evidence of the intent.(35)

There have been no prosecutions for seditious publications in the United States since those under the Sedition act of 1798. The attempt of the legal advisers of President Roosevelt in 1908 to bring to the bar

of justice for crime against the United States the New York World and Indianapolis News for publications concerning the payment of forty million dollars for the Panama rights of the French company seems to have been based on the idea that there are spots in the United States where the crime of sedition against the United States may exist. (36) The publications were not seditious, and could not be, because the crime of sedition and liberty of the press as declared in the First Amendment cannot co-exist. If the publications were true, they were lawful comment on a matter of national public concern; but if false and defamatory of the personal reputation of Mr. Roosevelt, he had at his disposal like any other citizen the remedy of a civil action for damages or a criminal prosecution in a state court by the state acting through its prosecuting attorney or attorney-general. There is no statute of the United States making a false publication on a matter of public concern defamatory of the personal reputation of an officer of the United States a crime against the United States. For reasons stated hereinafter I think such a statute would be constitutional, if Congress should see fit to pass one. In the case of Most (37) in New York in 1902, where the publication taught and advised the murder of public officers, riot, and arson, the publication was an overt act against peace and good order, and Most was rightly convicted, not for a seditious publication, but under a section of the New York criminal code providing for the punishment of any person "who wilfully and wrongfully commits any act which seriously endangers the public peace." And there can be no doubt that it was within the power of Congress to pass the act proposed in 1901 providing for the punishment of any person advocating and teaching the duty of killing any officer of the United States. (38) That proposed act differs widely from the

Sedition act of 1798 as construed and applied by the federal courts in the cases of Callender, Cooper, Haswell, and Lyon.

Hamilton's version of the original declarations of liberty of the press in his argument in Croswell's case(39) in 1804 is a landmark in the law, because of its wide acceptance by the makers of the present constitutions of the several states. The case is a by-product of the federal Sedition act. Croswell was the editor of a newspaper called The Wasp and published the following:

"Holt says, the burden of the federal song is that Mr. Jefferson paid Callender for writing against the late administration. This is wholly false. The charge is explicitly this: Jefferson paid Callender for calling Washington a traitor, a robber, and a perjurer; for calling Adams a hoary-headed incendiary, and for most grossly slandering the private characters of men whom he well knew were virtuous. These charges, not a democratic editor has yet dared, or ever will dare, to meet in open and manly discussion."

At the time of the publication Jefferson was President. Callender was one of the men fined and imprisoned under the Sedition act and afterward went over to the Federalists, making "confessions," as the Federalists insisted on calling them, of his past relations with Jefferson. Hamilton, Harrison, and Van Ness defended Croswell. The prosecution was treated throughout as one for a seditious libel, though plainly it was for an old-fashioned defamatory libel. The case was governed by the English common law of libel in force in New York on April 19,1775, there being no declaration of liberty of the press in the New York constitution at that time. Chief Justice Lewis presided at the trial and made these two rulings in accord with the English common law as declared and enforced in the only applicable case in New York, viz., Zenger's case in 1735: first, the truth of the publication is of no legal importance: and, second, the tendency of the publication is not for the jury but for the court. The jury founded Croswell guilty and the case came up in the Supreme Court on Croswell's motion for a new trial. Hamilton and his associates challenged those two rulings of the trial judge. The court divided equally, Judges Kent and Thompson agreeing with Hamilton in toto, Chief Justice Lewis and Judge Livingston disagreeing in toto. Hamilton formulated the following definition of liberty of the press:

"The liberty of the press consists in the right to publish, with impunity, truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals."

He professed that he found or discovered this definition in the English common law. But it was not there. The definition must be viewed and judged for what it really is, viz., Hamilton's original version of the declarations of liberty of the press. So viewing the definition, its chief merit lies in making truth the cardinal restraint on the right. The definition does not separate matters of public concern from matters of private concern and has been accepted as an extension of liberty of the press to all matters of private concern as well as matters of public concern, obliterating the distinction between the two. It is not clear that Hamilton so intended. The facts of Croswell's case made it expedient for him as an advocate to glide over the distinction without bringing it into prominence, for perhaps there is a fair question whether the publication in question was on a matter of public concern, though I think it was.

The next original thing about the definition is its good-motives-for-justifiable-ends limitation on truth. There was no support for that in the English common law. All the lawbooks were against it solidly, almost without exception. Its chief support was Erskine's rejected argument that intent and not tendency is the test of sedition. The English judges unanimously advised the House of Lords when Fox's Libel act was under consideration that the intent of the author and publisher of the publication was of no legal importance under the common law on the question of libel or no libel.(40) Hamilton like Erskine confused and identified the tendency of a publication as an opinion-maker with the motives of the author and publisher, his intent and ends, when plainly they are widely different things.(41) Aside from a reference to the Roman law and to the Dutch jurist Vinnius, the only English book besides Erskine's argument in the Dean of St. Asaph's case cited to support the good-motives-for-justifiable-ends limitation on truth was Paley's Moral Philosophy.(42) To a certain extent Paley does support it, when the matter under discussion is one of private concern.

There can be no question that Hamilton's good-motives-for-justifiable-ends limitation on truth has no place in original declarations of liberty of the press. When they are confined, as they should be, to matters of public concern, and assuming the publications to be true, as they must be, in the absence of contrary legislation, to come within the protection of liberty of the press, the original declarations did not overthrow the English common-law rule that the motives, intent, or ends of authors and publishers are of no consequence on the question of libel or no libel, but they did substitute new reasons of the English common-law rule. They made the right of liberty of the press a common right, exercisable by any man and by every man, publicly and truthfully to discuss all matters of public concern, not for his own private profit and benefit, but for the educational profit and benefit of the public. Assuming a publication on a matter of public concern to be true in respect of its facts, and true in respect of its opinions in the sense that the opinions are allowable inferences from the facts, they make the publication lawful without any reference whatever to the good or bad motives, justifiable or unjustifiable ends of the author and publisher, because to make good motives for justifiable ends the test of the lawfulness of truth published on a matter of public concern is to cut off allowable argument and debate and deprive the public of the educational benefit of the publication. In addition to this legal reason, there is the practical reason of the great danger, illustrated by the prosecutions under the federal Sedition act, that men will be fined and imprisoned, under the guise of being punished for their bad motives, or bad intent and ends, simply because the powers that be do not agree with their opinions, and spokesmen of minorities may be terrorized and silenced when they are most needed by the community and most useful to it, and when they stand most in need of the protection of the law against a hostile, arrogant majority. The common right publicly and truthfully to discuss matters of public concern is not like the common right of ownership of an acre of land. The common right of ownership exists for the private profit and benefit of the owner, whereas the common right of public and truthful discussion of public affairs exists as a right held in trust for the educational profit and benefit of the public. When an owner of an acre of land builds a spite fence on it, not to advance any private interest of his own, but only to molest his neighbor, it is proper in morals and permissible in law to make his spiteful act unlawful simply because of his bad motives or bad intent and ends to make his neighbor's life miserable without doing himself any good as owner of the acre of land in question.(43) It is very different , however, when a man exercises the common right of public and truthful discussion of public affairs under the inspiration of ill will and hatred for the men and things he censures. If the publication is on a matter of public concern and is true, strictly so as to its facts and allowably so as to its opinions, then it is lawful, and bad motives, intent, or ends cannot make it unlawful without impairing and abridging the right of the public to have the educational profit and benefit of the publication. The right of liberty of the press is a sanctioning or remedial right, preservative of all other rights, and was classified by Milton as the most important right we have. It is, like the right to sue and defend in the courts, the alternative of force to protect other rights, and when the constitution requires litigants to have good motives, for justifiable ends, it might as well shut up and abolish the courts. Hamilton was so situated politically with reference to liberty of the press when he undertook to defend Croswell that he had to say something plausible to save the federal Sedition act from collision with the declaration of liberty of the press in the First Amendment of the federal constitution.(44)

When liberty of the press is extended to all matters of private concern, Hamilton's good-motives-for-justifiable-ends limitation on truth is commendable as being potential for good in the hands of judges, if confined to publications on private matters, because it enables judges to prevent that extension of the right from operating to legalize what Sir J.F. Stephen calls the occupation of the spy who invades private affairs and the home to pick up gossip, to put in it the papers for the blackmailing pecuniary profit of their owners, and who steal photographs to use them to advertise tobacco, whiskey and other commodities. But I am not aware that Hamilton's good-motives-for-justifiable-ends limitation ever has been used in the courts to reach and support desirable results. (45)

After Croswell's case, on April 5, 1805, the New York legislature passed a statute, in form declaratory of the true English common-law test of "truth, with good motives, for justifiable ends" invented by Hamilton. The statute was drawn by Van Ness, associate of Hamilton in Croswell's defense.(46) This New York statute of 1805 and Hamilton's argument are the source and model of the declarations of liberty of the press in most of the present-day constitutions of the several states. Only five of the states, Massachusetts, New Hampshire, Vermont, North Carolina, and South Carolina, retain in their present constitutions the original short form of the declaration as in the First Amendment to the federal constitution. Most of the other states extend the right to "all subjects" or to "every subject" or use some other like phrase comprehensive enough to include private concerns as well as public concerns. Hamilton's "truth, with good motives, for justifiable ends" is expressed by way of defense in a libel case in the present constitution of at least twenty states, some confining it to criminal prosecutions, and others applying it to civil and criminal cases alike. There has been a vast amount of tinkering with the constitutional declarations in the several states and to-day there is no uniformity in them. In states where the constitution makers have not altered the phraseology of the original declarations, one is very likely to find that the legislature has altered it. The generally prevailing rule in the several states, declared either in the state constitution or in a statute, is that the right of liberty of the press extends to all subjects, subject to the Hamiltonian defense of "truth, with good motives, for justifiable ends." Nobody really knows or seems to care very much about the true meaning and application of "truth, with good motives, for justifiable ends"; there is nothing that fairly may be called a judicial construction of the phrase as it stands in present state constitutions and statutes. The courts appear to be administering the ante-Revolution English common law of defamatory libel without much if any reference to the state constitutions and statutes, or respect for them.

Another result of Croswell's case and the consequent New York statute of 1805 is a constitutional or statutory provision in several of the states making the jury "judge of the law and the fact" in libel cases, sometimes adding "as in other cases," sometimes confining the provision to criminal cases, and sometimes extending it to civil cases.(47) I am not aware that the provision has received much attention at the hands of state courts bound by it. When the provision is read in the light of its history, as it must be, it cannot be taken literally as eliminating the judge and giving the jury the whole power of decision on law and fact in the issue of libel or no libel. The tendency of a publication as an opinion-maker always was the English common-law test of libel or no libel, and today is the test of defamatory libel. Perhaps it was in its nature according to modern ideas of law and fact in jury trials a question of fact and not of law, but by way of an anomaly in jury trial it never was a question of fact for the jury exclusively. The early English judges who separated the province of the judge from that of the jury withdrew the question of tendency from the jury, not wholly but partially, on grounds of policy. The earliest cases for libel were for civil defamatory libel. They began to come into the English common-law courts when jurors decided issues of fact as witnesses upon their own knowledge of the facts in controversy, and not as now and for about two centuries past as judges of the weight of evidence produced before them in open court, and when the class from which jurors came ordinarily could neither read nor write. Partly for that practical reason, and partly for the additional practical reason of the necessity of discouraging frequent and frivolous civil actions for defamatory libel, the question of the tendency of the writing charged to be a defamatory libel was withdrawn partially from the jury. There was no mode of procedure for withdrawing the question wholly from the jury, the present motion for a directed verdict being a very modern invention between 1800 and 1825, so that the trial judge had to and did let the question go to the jury, subject to a motion in arrest of judgment addressed to the full court in banc by the defendant if the jury found against him. If the jury found in favor of the defendant, there was no mode of procedure for setting aside their verdict except to the process of attaint in civil cases, until the motion for a new trial came in after 1655. The question of tendency in a civil case for defamatory libel early came to be described as "a question of law for the judge" simply because it was for the judges on the defendant's motion in arrest of judgment after a verdict against him, thought in its nature according to modern ideas of law and fact it probably was "a question of fact for the judge." After the printing press brought along or made more common and dangerous to the existing order publications called seditious, blasphemous, obscene, and immoral libels, the question of their tendency to shake the existing order went to the Star Chamber as previous censor of the press until its fall in 1641, when it came before the ordinary criminal court of King's Bench. That court, on the analogy of civil cases for defamatory libel, should have left the question of tendency to the jury, subject to the defendant's motion in arrest of judgment if the jury found against him, as Fox's Libel act prescribed in 1792, but for some reason or other the King's Bench did not do that but began the practice of instructing the jury that the question of tendency was not for them to pass on at all, thus making itself the exclusive subsequent or ex post facto censor of the press, as the Star Chamber had been previous censor. In all the discussions ending in Fox's Libel act the question of tendency , or "libel or no libel," was spoken of as "a question of law," though in truth perhaps a question of fact. Lord Mansfield gave new reasons of policy for the practice he found established in the King's Bench of instructing the jury not to pass on the point of tendency in criminal prosecutions for libel, viz., that it would be "an absurdity," a solecism in politics," to confide that question, which he called one of law, to a jury "under all the bias of interest in this town where thousands more or less are concerned in the publication of newspapers, paragraphs, and pamphlets."(48)

When after 1800 the right of liberty of the press in the sense of a right to publish truth on matters of public concern was recognized and established, practically overthrowing the old English common law of seditious libel and blasphemous libel, and relegating the law of obscene and immoral libel to the region of public nuisance, a new question in addition to the question of tendency was injected into a civil case for defamatory libel for a publication on a matter of public concern, viz., whether the opinions expressed in the publication reflecting on personal and professional reputation are allowable inferences from the facts. This new question is probably in its nature a question of law, as it concerns a rule or standard of conduct, but at any rate, whether a question of law or fact, it is for the judge and not for the jury in the English courts to-day, at least when it arises on the face of the publication.(49)

In the light of history, then, when a state constitution or statute makes a jury "judge of the law and the fact" in a criminal case for libel, and stops there, it is only Fox's Libel act extending to criminal cases for libel the functions of judge and jury in civil actions for defamatory libel on the question of the defamatory tendency of the publication. And when a state constitution or statute goes further, making Erskine's intent of the author or Hamilton's "truth, with good motives, for justifiable ends" the test of criminal libel, then the provision making the jury "judge of the law and the fact" in criminal cases for libel is only declaratory of what would be the law anyway, for no one ever doubted that Erskine's test of the author's or publisher's intent was a question for the jury. And when a state constitution or statue goes further still, extending the test of intent to civil cases for defamatory libel, and making the jury "judge of the law and the fact" in civil as well as criminal cases for libel, there is no good reason to think it radically altered the English common law separating the function of the judge from the function of the jury on the issue of libel or no libel, though it does alter the issue. Neither Erskine or Hamilton intended to apply the test of motives, intent, or ends in civil actions for defamatory libel. But when a state constitution or statute plainly so extends it there is nothing for the judges to do but enforce it. Altering the English common-law division of labor between judge and jury on the issue of libel or no libel, by extending the function of the jury at the expense of the judge, does not necessarily make for freedom of public discussion of matters of public concern, either in normal times or in excited times, especially when the subject is politics, religion, a literary or scientific work, or a work of art. "The man on the Clapham omnibus," as Lord Bowen phrased it, (50) is not the man to have the whole power to decide whether public discussion of such topics is truthful, allowable, and fair, and not false and defamatory. At any rate, the English common law of jury trial never gave it to him, whatever may be the true meaning of the Hamiltonian constitutions and statutes of several of our states.(51)

The judicial habit of assuming that the constitutional declarations, original and Hamiltonian alike, only prohibit previous censorship, leaving all publications subject to the English common law of libel, comes out in the numerous cases creating what may be called a judgemade liberty of the press, wherein it has been held that matters of public concern are "privileged occasions" making the publication of falsehood of defamatory tendency permissible and lawful if the falsehood is published in good faith in the honest belief that it is truth. Our judges, without exception so far as I can see, classify publications on matters of public concern in the same group with an employer's comment on the character of a servant looking for a situation made to a person thinking of employing him. The English common law of defamatory libel has been for a long time back, and is now, that an employer in giving the character of a servant may publish what he honestly believes to be the truth, though it may be in fact false and defamatory; and judges now say this rule is the judicial expression of the moral and social duty of the employer, at least when the character is solicited. The case is typical of a class of cases where false defamatory publications on matters of private concern are permissible under the English common law of libel by way of guarded exceptions to the general rule of the English common law of libel that a person makes a false defamatory publication at his peril just as a person keeps a dog that bites mankind and lets him out at his peril. Such false defamatory publications are said to be cases of "qualified privilege," the privilege consisting in permission to publish defamatory falsehood , and the qualification consisting in the requirement that the publisher must honestly believe in the falsehood to be truth, and must publish it with good motives, for justifiable ends, and must not spread the publication too widely. When publications on matters of public concern are classified under the head of "qualified privilege" in the law of libel, side by side with an employer's publication giving a character to a servant, the conception of liberty of the press is that it is a judge-made privilege in the ordinary law of libel to publish, with impunity, falsehood in the honest belief it is truth, with good motives, for justifiable ends. As expounders of liberty of the press the judges have eclipsed Hamilton. When liberty of the press meant the right to publish with impunity truth on matters of public concern, without reference to motives or justifiable ends, Hamilton extended the right , or has been understood as extending the right, to matters of private concern, and attached to the restraint of truth the qualification "with good motives for justifiable ends>î

The judges have struck out the word "truth," have substituted in its place "falsehood in the honest belief it is truth," and have attached to the substitute Hamilton's qualification "with good motives, for justifiable ends," thus getting the result: "Liberty of the press if s privilege to publish, with impunity, falsehood on matters of public concern, in the honest belief it is truth, with good motives, for justifiable ends." The judge-made liberty of the press in the ordinary law of libel to publish defamatory falsehood on matters of public concern is consistent with, and perhaps is necessitated by , the other judicial view that the constitutional declarations, in the original and Hamiltonian forms, only prohibit previous censorship. The declarations forbid the abridgment of freedom of the press, permitting its enlargement, and the judge-made privilege to publish defamatory falsehood enlarges freedom of the press, emancipating it from the restraint of truth.

In 1908 in Kansas, the state constitution being Hamiltonian, the Kansas Supreme Court declared the Kansas rule of qualified privilege to publish defamatory falsehood concerning a candidate for public office as follows:

"If the publisher of a newspaper circulated throughout the state publish an article reciting facts and making comment relating to the official conduct and character of a state officer, who is a candidate for re-election, for the sole purpose of giving to the people of the state what he honestly believes to be true information, and for the sole purpose of enabling voters to cast their ballots more intelligently, and the whole thing is done in good faith, the publication is privileged, although the matters contained in the article may be untrue in fact and derogatory to the character of the candidate."

The highest courts of some of the states limit the qualified privilege to publish defamatory falsehood concerning a candidate for public office to publications that circulate only within the state or election district. With reference to this limitation on the qualified privilege the Kansas Supreme Court said in the case referred to :

"Generally, publications should be no wider than the moral or social duty to publish. If it be designedly

or unnecessarily or negligently excessive, privilege is lost. But if a state newspaper published primarily for a state constituency have a small circulation elsewhere, it is not deprived of its privilege in the discussion of subjects of state-wide concern because of that fact."(52)

The present constitution of Pennsylvania of 1873 provides in its liberty -of-the-press clause:

"No conviction shall be had for the publication of papers relating to the official conduct or officers or men in public capacity, or to any other matter proper for public investigation or information , where the fact that such publication was not voluntarily or negligently made shall be established to the satisfaction of the jury."

In 1878 the Pennsylvania Supreme Court thought that this provision extended to original publications and decided that this provision applies only in criminal prosecutions for libel, and not in civil actions for libel. (53) In 1886, however, the Pennsylvania Supreme Court declared a broader rule of qualified privilege to publish defamatory falsehood concerning public officers and candidates for public offices, saying:

"If a respectable citizen honestly believes and states that a candidate for a public office is guilty of official misconduct or is a person of evil repute, in the sense that it affects his fitness for the office which he seeks, such a statement is privileged and may be repeated by another in a meeting assembled to inquire into the merits of the candidate, though it be absolutely false, and upon inquiry its falsity might have been ascertained; for the voter has the right to canvass and discuss the qualifications of the candidates who seek his suffrage openly and fully."(54)

Some text-writers on the law of libel say the Kansas and Pennsylvania rules are extreme or exceptional, and that the prevailing rule in our various jurisdictions is that judge-made qualified privilege to publish on matters of public concern does not legalize defamatory falsehood. (55) It seems, however, they take as the true rule the modern English judiciary law classifying fair comment on matters of public concern as an exercise of the right of liberty of the press, or the right to publish truth on matters of public concern. When American reported cases are looked into, it must be admitted that the law evidenced by them is an extremely loose and fluid state. It is not easy to locate and name the American court that has clearly and pointedly made either truth alone, or Hamilton's "truth , with good motives, for justifiable ends,; the dividing line between lawful and unlawful publications on matters of public concern.(56)

With reference to "privilege" in the ordinary law of libel, there is a clear distinction between publications originating defamatory falsehood and publications of defamatory falsehood originated by others in judicial, legislative, and other official proceedings, and in unofficial proceedings, and in unofficial public meetings on matters of public concern. Under the rule of the English common law making everyone who repeats defamatory falsehood liable, as well as the original author and publisher, and even though the original author and publisher may not be liable, the publishers of true reports of defamatory falsehood in official and unofficial public proceedings are liable to the persons defamed.(57) Such true reports properly fall under the head of "privilege" in the ordinary law of libel, because liberty of the press does not sanction either the original publication or subsequent repeating and spreading of defamatory falsehood. (58) The office of a newspaper libel law is to expand for the protection of editors and owners of newspapers more than the judges have been able to expand it, the doctrine of "privilege" so as to enable them to publish with impunity true reports of official and unofficial public proceedings. As the English judiciary law already legalized true newspaper reports of defamatory falsehood in judicial and legislative proceedings, the English Newspaper Libel Law of 1881 was extended by Parliament in 1888 to protect editors and owners of newspapers from liability for defamatory falsehood in fair and accurate newspaper reports of the proceedings of public meetings. It defined a public meeting as "any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether admission thereto be general or restricted."(59) The legislative under the protection of liberty of the press, if the truth is published "with good motives, for justifiable ends." Falsehood is not an ingredient in strike and boycott publications like "Unfair" and "We don't patronize." There is nothing in them but truth of more or less persuasive tendency to move sympathetic readers to do what they have a perfect right to do, viz., refuse to buy goods from a particular dealer. The ultimate motives and ends of the striking and boycotting authors and publishers are better to their working conditions, which are not bad motives nor unjustifiable ends. To say that the motives and ends of the striking and boycotting authors and publishers are to put unlawful economic pressure on their employers begs the whole question by confusing means with ends, substituting the immediate means employed for the ultimate end to be attained. When a constitution speaks of "truth, with good motives, for justifiable ends," presumably at least it means ultimate motives and ends. It is not easy to see and articulate clearly and convincingly just wherein the labor leaders are wrong in point of law under the Hamiltonian state constitutions on which they rely when they say their strike and boycott publications like "Unfair" and "We don't patronize" do not differ from the publications before the Revolution to move people to refrain from using George III's tea and stamps. True, the tea and stamp publications were used to promote a political matter of public concern, while the strike and boycott publications are used to promote a private-property matter of private concern; but it must be borne in mind that the Hamiltonian state constitutions, on which the labor leaders rely, verbally at least, put matters of private concern on the same constitutional footing as matters of public concern with reference to the right of liberty of the press. The answer the courts commonly give to the labor leaders, and the United States Supreme Court, overlooking the difference between the First Amendment and the Hamiltonian state constitutions, adopted the answer in Gompers' case , brackets the publications of the

striking and boycotting workmen with the publications of anarchists teaching and advising the use of force, riot, arson, and murder. The bracketing phrase of the courts is "verbal acts."(63) There is nothing to the phrase, because all publications are "verbal acts." The publications of striking and boycotting workmen like "Unfair" and "We don't patronize" are not "verbal acts" or "overt acts" against peace and good order like the publications of anarchists teaching and advising the use of force. When judges in solemn and deliberate opinions bracket striking and boycotting workmen with anarchists, then the tu quoque hot retort of the workmen that the judges are tools of the corporations is essentially human. The legal argument of the workmen deserves a better answer than the judges are giving; and if there is no better answer the argument should prevail when a Hamiltonian state constitution governs.

The judicial practice of fining and imprisoning strangers to litigation like editors of newspapers in summary criminal proceedings for criminal contempt of court for publications censuring judges, imputing to them disgraceful motives and conduct in their administration of the law in particular pending and ended cases and generally, has become rather common in the courts of several of the states.(64) The practice is justly criticized as re-establishing the jurisdiction of the Star Chamber in violation of the constitutional right of liberty of the press and the constitutional right of trial by jury in criminal cases.

A declaratory act of Congress first passed in 1831, adopting the argument of Mr. Storrs, one of the managers for the House in the impeachment of Judge Peck, forbids the practice in all federal courts below the Supreme Court.(65) There are like statutes in some of the states, going back to the one in Pennsylvania in 1809 resulting from impeachment proceedings against the judges of the Pennsylvania Supreme Court in consequence of Passmore's case.(66) Without distinguishing between publications by strangers, parties, and attorneys, between those concerning pending cases and ended cases, or between the civil wrong to parties by depriving them of a fair trial, and the criminal wrong to the public, whether seditious libel, defamatory libel, or obstructing justice, but bundling all publications together as like criminal acts of contempt of court, the practice goes back to Oswald's case(67) in Pennsylvania in 1788, spread to the federal courts and to other state courts, but was checked by the impeachment proceedings against Judge Peck and the above-mentioned act of Congress of 1831, until its revival in 1855 by an opinion of Judge English of the Arkansas Supreme Court.(68) In most of the modern cases the publications are of the kind called "scandalizing judges" by imputing to them disgraceful conduct in their administration of the law, and what is here said is confined to publications of that sort. There can be no question that the English common law before the Revolution made such publications, whether true or false, criminal seditious libels when their tendency was to create and diffuse an ill opinion of the law and its judicial administration, and criminal defamatory libel when their tendency was to create and diffuse an ill opinion of the personal or professional reputations of the judges, and, whether true or false, criminal acts obstructing justice when their tendency was to prejudice the right of parties to a pending case to a fair and impartial trial on the law and on the evidence produced in open court, punishable by fine or imprisonment in the ordinary course of the criminal law, i.e., by indictment or information and trial by jury. The view that such publications by strangers scandalizing judges are criminal acts of contempt of court rests on nothing in the English common law before the Revolution but a dubious opinion of Lord Chancellor Hardwicke in 1742, first published in 1765-1768, (69) and on uncertain passages in Blackstone's fourth book, probably taken from Mr. Justice Wilmot's celebrated undelivered opinion in 1756, first published in 1802, (70) in contempt proceedings in the King's Bench against the bookseller Almon for publishing a pamphlet, approved if not written by Lord Camden, censuring Lord Mansfield for amending behind Wilkes' back the information against him for sedition for writing and publishing North Briton, No. 45, and for changing a standing rule of the King's Bench so as to require an affidavit in support of a petition for the writ of habeas corpus. Mr. Storrs showed clearly in his argument against Judge Peck, and the same thing has been shown more clearly recently by Mr. Fox, master in chancery of the English High Court of Justice, Chancery Division, in two historical articles on Mr. Justice Wilmot's undelivered opinion in Almon's case, (71) that publications by strangers scandalizing judges in pending cases or in ended cases were not criminal acts of contempt of court within the reach of the criminal process of contempt according to the English common law as it stood at the time of the Revolution, but were criminal misdemeanors, i.e., seditious libels or defamatory libels or criminal acts obstructing justice in pending cases, punishable summarily in the Court of Star Chamber until its fall in 1641, and thereafter only in the King's Bench in the ordinary course of criminal law, i.e., by indictment or information in trial by jury. In the modern cases in the state courts the whole of the wrong as the judges view it and describe it is the defamatory and seditious character of the publications, and not the criminal wrong to the public, much less the civil wrong to the parties, of obstructing justice in a pending case. In some of the cases it is laid down that there is nothing to the distinction between publications scandalizing judges in pending cases and ended cases, and that is correct when the scandalizing publications are viewed as defamatory and seditious libels as distinguished from acts of obstructing justice. As Mr. Justice Wilmot's undelivered opinion in Almon's case said that to censure Lord Mansfield is to censure the king who employs him, so it is said that to censure state judges is to censure the people who employ them. The practical reason assigned for extending the criminal process of contempt to publications by strangers scandalizing judges is that jurors cannot be relied on to do their duty in civil actions or criminal prosecutions for defamatory libel where judges are the victims. The reason is bad in law, even if true in fact. The true reason probably is, however, that the scandalized judges do not like to meet their critics face to face before a jury on the footing of the judge-made liberty of the press or "qualified privilege" to publish defamatory falsehood on matters of public concern with good motives, for justifiable ends. It is likely that jurors could and would honestly find from the evidence that the authors of the scandalizing publications were actuated by good motives for justifiable ends. The judge-made "qualified privilege" is good enough for other people's officers, but not for judges.

The criminal contempt-of-court process for dealing with publications scandalizing judges is seen complete in Senator Patterson's case. As editor of a Denver newspaper he censured that judges of the Colorado Supreme Court for a decision in a case held to be pending at the time of the publication because the defeated party could and subsequently did apply for a rehearing , charging that the decision was the fruit of a conspiracy between the judges and Denver capitalists to employ the judicial power to nullify a vote of the people amending the state constitution to take from the state legislature and vest in the city of Denver the control of Denver public utilities. In seeming admitted violation of the written text of the state constitutions and statutes, on the spurious historical theory that the criminal process of contempt of court to fine and imprison the authors of publications scandalizing judges is "coeval" with the English common- law judicial power granted to the Colorado Supreme Court by the state constitution, reaching back of and uplifting all the rest of the written text of the state constitution and statutes, the Colorado Supreme Court caused the attorney-general to put into play and action against the editor the summary criminal process of contempt, refused to let the editor show the truth of his publication, and fined him $1,000.00. On error to the Supreme Court of the United States under the Fourteenth Amendment, that court said that the Colorado Supreme Court's administration of the state constitution and statutes, refusing to let the editor show the truth and denying jury trial, even if wrong, was not wrong enough to be such a purely personal and arbitrary exercise of the state judicial power as could shock the reason of mankind and so be wanting in "due process of law." Over the protest of Brewer, J. and the dissent of Harlan, J., the court dodged the point whether liberty of the press as declared in the First Amendment is included in the word "liberty" in the Fourteenth Amendment, by conceding it for the sake of argument. Then viewing the publication defamatory libel or seditious libel, the court decided the First Amendment does not make truth an answer,

because it only prohibits previous censorship, leaving authors libel for criminal matter after publication, even though true, which is wrong, for, as already shown, if liberty of the press in the First Amendment means anything it legalizes published truth on all matters of public concern. Next viewing the publication as an act obstructing justice in a pending case, i.e., prejudicial to the right of parties in a pending case to a fair and impartial on the law and on the evidence, and without distinguishing between the civil wrong to the parties and its appropriate remedies and the criminal wrong to the public and its appropriate remedies, but treating the wrong as manifestly a criminal act of contempt of court within the reach of the criminal process of contempt, the court decided that the truth of the publication was no answer to the charge that criminally obstructed or tended to obstruct justice in a pending case. Perhaps it is correct to say that the truth of a publication scandalizing judges is no answer to a charge that the publication criminally obstructed or tended to obstruct justice in a pending case, but the difficulty is to harmonize the rule with liberty of the press as a right to publish truth on matters of public concern, which may be done, perhaps, on the view that the right to sue and defend in the courts is a matter of private concern and not of public concern until the case is ended, and so falls outside the sphere of liberty of the press, except under the Hamiltonian state constitutions extending liberty of the press to all subjects, where it may be said published truth scandalizing judges and obstructing or tending to obstruct justice in a pending case cannot be the Hamiltonian "truth, with good motives, for justifiable ends." The decisive answer to this part of the opinion of the court, however, is that it is abstract jurisprudence in the air, because it is hard to see how it is possible to read the opinion of the Colorado Supreme Court without being convinced that the Colorado judges fined the editor, not because his publication obstructed or tended to obstruct justice in a pending case, but because it was defamatory and seditious libel. It is hard to see why the opinion of the Colorado Supreme Court was not binding on the United States Supreme Court as a finding of fact that the publication neither obstructed nor tended to obstruct justice in a pending case, because the Colorado judges found as a fact they were incapable of deciding a case on anything but the law and the evidence, leaving nothing but a defamatory and seditious libel and the question whether truth was an answer. No doubt the court "scrutinized the case," as they say, but at the same time the opinion is far from satisfactory, and it is by no means certain that it will stand as the last word on the subject. Brewer, J., was right in saying the court had no business to try to dodge the question whether the word "liberty" in the Fourteenth Amendment includes liberty to punish truth on matters of public concern.(72)

The practice of dealing with publications scandalizing judges under the criminal process of contempt of court ought to be stopped, voluntarily by the judges or under the compulsion of impeachment. If the practice is desirable, then the constitutional declarations of liberty of the press and jury trial in criminal cases ought to be amended in the regular way by the people themselves, and not in the irregular way of spurious judicial interpretation following Mr. Justice Wilmot's obsolete idea in Almon's case that "the underlying principle is to keep a blaze of glory around the courts, and to deter people from attempting to render them contemptible in the eyes of the public." Under a Hamiltonian state constitution published truth about judges may be sedition, if published with bad motives for unjustifiable ends, but under ordinary jury clauses a man cannot be punished for the crime of sedition except on the verdict of a jury.

The First Amendment to the federal Constitution declaring the right of liberty of the press seems to be regarded as of little practical importance. This idea seems to be the survival of the argument for and against the propriety of a bill of rights in the federal Constitution. (73). The usage and practice of Congress from the beginning has been that the right of liberty of the press there declared includes the right of circulation through the post-office within each state and across state lines. This view of Congress has the support of a dictum of the United States Supreme Court, and seems to me sound in law.(74) And as the Constitution of the United States divides matters of public concern into those that are national and those that are state or local, the right of liberty of the press declared in the First Amendment would appear to be a distinct, separate, and independent right arising out of and protected by the Constitution of the United States, to punish truth on all matters of national public concern. In that view, Congress was right in

1835 and 1836 in thinking it had no power, and President Jackson was wrong in thinking Congress had power, to prohibit totally the sending of abolition literature through the post-office from the free states into the slave states, as there can be little doubt that slavery was a matter of national public concern under liberty of the press.(75) Today the question of a uniform law on marriage and divorce, the liquor-prohibition question, the woman-suffrage question, and many other questions are in one aspect or another questions of national public concern related to liberty of the press in the First Amendment. And it follows that the right to publish truth on matters of national public concern is one of the privileges and immunities of citizens of the United States protected from abridgment by any state by the first prohibition in the Fourteenth Amendment. (76) And it results from this view of the First Amendment that Congress has the power to make defamatory falsehood concerning public officers of the United States or candidates for public office under the United States the foundation of a civil action for damages in the federal courts or a criminal prosecution for crime against the United States, just as Congress has power to protect officers of the United States from murderous assaults, or to protect the right to vote for representatives in Congress and presidential electors.(77)

The act of Congress of 1912 excluding from the low rate for second-class mail matter newspapers, magazines, periodicals, and other publications unless the names of the owners and secured creditors are filed with the Postmaster-General and published in the second issue after filing, unless paid-for-reading-matter is marked "advertisement," was assailed outside and inside the courts as abridgment of the freedom of press in the First Amendment. The assailing arguments only show a misunderstanding of the constitutional right. The act was sustained by the United States Supreme Court as promotive rather than restrictive of liberty of the press, on the ground that Congress has the power to manage the post-office, as it always has managed it, as a means for "the wide dissemination of intelligence as to current events," and any act of Congress adapted to advance that policy is constitutional, the degree of the adaptation falling outside the range of the judicial power. (78) As the owners of the newspapers, magazines, periodicals, and other publications are operating public educational institutions in exercise of the right of liberty of the press to educate the public on matters of public concern, of course the public, i.e., the scholars, are not idly curious when they want to know who owns the institutions. A like statute passed in Pennsylvania in 1903 was repealed in 1907. (79) The state legislatures and Congress may carry the principle further to let the scholars know the names of the teachers or editorial staff now working anonymously behind the mask of the wonder-working corporate cloak. Since 1899 the California penal code has required every article, statement, or editorial reflecting on personal or professional reputation to be supplemented by the true name of the writer.(80)

The constitutional declarations of liberty of the press are original work of the American people in the sphere of law and government. Their chief practical bulwark always has been the overthrow of the Federalist party because of the Sedition Act of 1798. As guardians and expounders of the declarations of the courts are a failure up to date. They cannot be a success until judges get rid of the notion that the declarations are only declaratory of the anti-republican English common law of the days of Blackstone, Lord Mansfield, and Lord Kenyon, only prohibiting previous censorship of publications on matters of public concern, leaving untouched the English common law of seditious, blasphemous, defamatory, obscene, and immoral libel. The judge-made liberty of the press to publish defamatory falsehood on matters of public concern is unauthorized judicial legislation destructive of men's reputations and property, inviting and encouraging the owners and editors of newspapers and periodicals to found their educational power on falsehood, whereas the declarations require them to found it on truth, except when the legislature sees fit to remove the restraint of truth. And the judge-made law of contempt of court for publications censuring judges is simply intolerable in a land of equality before the law where judges are no more important to the universe than executives and legislators. The complete immunity from legislation regulating the exercise of the right of the press owners and editors of newspapers and periodicals and all others have enjoyed since the Sedition act of 1798 does not rest on anything in the state and federal constitutions, but rests entirely on sufferance by the people, and their state and federal legislative representatives, who in their respective spheres have ample power to describe and enforce the rudiments of fair play involved in the restraint of truth in publications on matters of public concern, and on matters of private concern as well. Such legislation, state and federal, seems desirable and necessary, at least for the better protection by the courts of personal reputation and property from defamatory falsehood. It is not easy to get a bill of particulars of other evils comprehended in the popular phrase "trust press." No doubt the owners and editors of newspapers and periodicals, like everybody else, have fallen victims to the "dollar culture" or "fierce game of money," but it may be doubted whether they are worse victims than others, or less desirous than others to keep the dollar from taking up so much room on the driver's seat. I do not know what ought to be done, or can be done, by legislation to squeeze the dollar out of its usurped place on the driver's seat in any existing scheme of public education, whether through the printing press or the classroom. But the signs of the times are that the people are about ready to demand and support state and federal legislation regulating the newspaper and periodical business of the country. The constitutional right of liberty of the press does not make the owners and editors of newspapers and periodicals "the sovereigns of the state," but leaves them subject to the general rule: "The state subordinate to the people, and everything else subordinate to the state."(81) Indeed, constitutional liberty of the press in the United States is nothing more nor less than a fine popular attempt to employ the law and its machinery to realize the great saying: "And ye shall know the truth, and the truth shall make you free."