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 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 but forbid previous censorship, putting American judges into the shoes of Lord Mansfield as subsequent or ex post facto censors of publications, true or false?

13 Rex v. Taylor, 3 Keble, 607.

14 Chamberlain of London v. Evans, cited by C. J. Clayton in State v. Chandler, 2 Harr. (Del.), 556, and in Odgers, Libel and Slander, 2d ed., 443.

15 Rex v. Williams, 26 St. Tn., 653, 704.

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 in 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 offence as sedition There may indeed be breaches of the peace which may destroy or endanger life, limb, or property, and there may be incitements to such offences, but no imaginable censure of the government, short of a censure which has an immediate 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 governors and the governed.1 The

16 II, 299.

17 II, 298, note 1, and 300.

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 of his power.18 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

18 1 Bracton, Laws and Customs of England, trans. by T. Twiss, 39, 41; Coke's report of his interview with James I telling him that the king cannot sit on the bench to decide cases in his own proper person, Prohibitions Del Roy, 12 Coke's Rep., 63.

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, and does not extend to matters of private con

cern.

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

19 Cited by Kent, J., in People v. Croswell, 3 Johns. cases, 337, 391.

England and in Philadelphia before the Virginia Religious Liberty statute, wherein Dr. Furneaux said:

"If it be objected, that when the tendency of principles is unfavorable to the peace and good order of society, as it may be, it is the magistrate's duty then, and for that reason, to restrain them by penal laws; I reply, that the tendency of principles, though it be unfavorable, is not prejudicial to society, till it issues in some overt acts against the 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 contented with pointing his penal laws against the evil overt acts resulting from them. . Punishing a man for the tendency of his principles is punishing him before he is guilty, for fear he should be guilty."20

While this distinction between the tendency of principles and overt acts arising from principles had special reference to the subject of religion and to nonconformists in the Christian religion, yet it applies equally to any

20 Cited and quoted by Clayton, C. J., in State v. Chandler, 2 Harr. (Del.) 553, 576. For an account of Dr. Furneaux, see the Dictionary of National Biography, edited by Leslie Stephen. See Locke's first "Letter concerning Toleration" in 1689. As Jefferson himself said, there is not an original thought or word in the Virginia Religious Liberty statute. Jefferson drew it from the laws of Rhode Island, Maryland, and Pennsylvania, and from the best English literature on religious liberty and liberty of the press. I do not know that Jefferson used Dr. Furneaux's letter to Blackstone, but he was looking for literature like that.