possessed. We are at once, therefore, turned back from these provisions to the pre-existing law, in order that we may ascertain what the rights are which are thus protected, and what is the extent of the privileges they undertake to assure.

At the common law, however, it will be found that liberty of the press was neither well protected nor well defined. The art of printing, in the hands of private persons, has, until within a comparatively recent period, been regarded rather as an instrument of mischief, which required the restraining hand of the government, than as a power for good, to be fostered and encouraged. Like a vicious beast it might be made useful if properly harnessed and restrained. The government assumed to itself the right to deter

mine what might or might not be published; and censors [* 418] were appointed* without whose permission it was criminal

to publish a book or paper upon any subject. Through all the changes of government, this censorship was continued until after the Revolution of 1688, and there are no instances in English history of more cruel and relentless persecution than for the publication of books which now would pass unnoticed by the authorities. To a much later day the press was not free to publish even the current news of the day where the government could suppose itself to be interested in its suppression. Many matters, the publication of which now seems important to the just, discreet, and harmonious working of free institutions, and to the proper observation of public officers by those interested in the discharge of their duties, were treated by the public authorities as offences against good order, and contempts of their authority. By a fiction not very far removed from the truth, the Parliament was supposed

in all indictments for libel, the jury shall determine the law and the facts, under the direction of the court. Art. 1, § 4. Texas: Every citizen shall be at liberty to speak, write, or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the official conduct of officers or men in a public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases. Art. 1, §§ 5 and 6. Virginia: That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments, and any citizen may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty. Art. 1, § 14.

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to sit with closed doors. No official publication of its debates was provided for, and no other was allowed. The brief sketches which found their way into print were usually disguised under the garb of discussions in a fictitious parliament, held in a foreign country. Several times the Parliament resolved that any such publication, or any intermeddling by letter-writers, was a breach of their privileges, and should be punished accordingly on discovery of the offenders. For such a publication in 1747 the editor of the "Gentleman's Magazine" was brought to the bar of the House of Commons for reprimand, and only discharged on expressing his contrition. The general publication of Parliamentary debates dates only from the American Revolution, and even then was still considered a technical breach of privilege.2

The American Colonies followed the practice of the, parent country. Even the laws were not at first published for general circulation, and it seemed to be thought desirable by the magistrates to keep the people in ignorance of the precise boundary *between that which was lawful and that which was pro- [* 419] hibited, as more likely to make them avoid all doubtful actions. The magistrates of Massachusetts, when compelled by public opinion to suffer the publication of general laws in 1649,

1 In 1641, Sir Edward Deering was expelled and imprisoned for publishing a collection of his own speeches, and the book was ordered to be burned by the common hangman. See May's Const. Hist. c. 7.

See May's Constitutional History, c. 7, 9, and 10, for a complete account of the struggle between the government and the press, resulting at last in the complete enfranchisement and protection of the latter in the publication of all matters of public interest, and in the discussion of public affairs. Freedom to report proceedings and debates was due at last to Wilkes, who, worthless as he was, proved a great public benefactor in his obstinate defence of liberty of the press and security from arbitrary search and arrest. A fair publication of a debate is now held to be privileged; and comments on public legislative proceedings are not actionable, so long as a jury shall think them honest and made in a fair spirit, and such as are justified by the circumstances. Wason v. Walter, Law Rep. 4 Q. B. 73.

The General Court of Massachusetts "appointed two persons, in October, 1662, licensers of the press, and prohibited the publishing any books or papers which should not be supervised by them, and in 1668 the supervisors having allowed of the printing 'Thomas à Kempis de imitatione Christi,' the court interposed, it being wrote by a popish minister, and containing some things less safe to be infused among the people,' and therefore they commended to the licensers a more full revisal, and ordered the press to stop in the mean time." 1 Hutchinson's Mass. 257, 2d ed.

permitted it under protest, as a hazardous experiment. For publishing the laws of one session in Virginia, in 1682, the printer was arrested and put under bonds until the king's pleasure could be known, and the king's pleasure was declared that no printing should be allowed in the Colony. There were not wanting instances of the public burning of books, as offenders against good order. Such was the fate of Elliot's book in defence of unmixed principles of popular freedom,2 and Calef's book against Cotton Mather, which was given to the flames at Cambridge.3 A single printing-press was introduced into the Colony so early as 1640; but the publication even of State documents did not become free until 1719, when, after a quarrel between Governor Shute and the House, he directed that body not to print one of their remon strances, and, on their disobeying, sought in vain to procure the punishment of their printer. When Dongan was sent out as Governor of New York in 1683, he was expressly instructed to suffer no printing,5 and that Colony obtained its first press in 1692, through a Philadelphia printer being driven thence for publishing an address from a Quaker, in which he accused his brethren in office of being inconsistent with their principles in exercising political authority. So late as 1671, Governor Berkley of Virginia expressed his thankfulness that neither free schools nor printing were introduced in the Colony, and his trust that these breeders of disobedience, heresy, and sects, would long be unknown.

The public bodies of the united nation did not at once invite publicity to their deliberations. The Constitutional Convention of 1787 sat with closed doors, and although imperfect reports of the debates have since been published, the injunction of secrecy upon its members was never removed.

The Senate for a time followed this example, and the [*420] first open * debate was had in 1793, on the occasion of the controversy over the right of Mr. Gallatin to a seat in that

1 Hildreth, History of the United States, 561.

21 Hutchinson's Mass. (2d ed.) 211; 2 Bancroft, 73; 1 Hildreth, 452; 2 Palfrey's New England, 511, 512.

1 Bancroft, 97; 2 Hildreth, 166.

4 2 Hildreth, 298.

52 Hildreth, 77.

62 Hildreth, 171.

7 1 Hildreth, 526; 2 Hen. Stat. 517; Wise's Seven Decades of the Union, 310.

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body. The House of Representatives sat with open doors from the first, tolerating the presence of reporters, over whose admission, however, the Speaker assumed control, and refusing in 1796 the pittance of two thousand dollars for full publication of debates.

It must be evident from these brief references that liberty of the press, as now understood and enjoyed, is of very recent origin; 2 and commentators seem to be agreed in the opinion that the term itself means only that liberty of publication without the previous permission of the government, which was obtained by the abolition of the censorship. In a strict sense, Mr. Hallam says, it consists merely in exemption from a licenser.3 A similar view is expressed by De Lolme. "Liberty of the press," he says, "consists in this: that neither courts of justice, nor any other judges whatever, are authorized to take notice of writings intended for the press, but are confined to those which are actually printed."4 Blackstone also adopts the same opinion,5 and it has been followed by American commentators of standard authority as embodying correctly the idea incorporated in the constitutional law of the country by the provisions in the American Bills of Rights.

It is conceded on all sides that the common-law rules that subjected the libeller to responsibility for the private injury, or the public scandal or disorder occasioned by his conduct, are not abolished by the protection extended to the press in our constitutions. The words of Ch. J. Parker of Massachusetts on this subject have been frequently quoted, generally recognized as sound

1

"This broke the spell of deliberations in secret conclave; and a few days afterwards, on the 20th of the same month, a general resolution was adopted by the Senate, that, after the end of the present annual session, its proceedings in its legislative capacity should be with open doors, unless in special cases which, in the judgment of the body, should require secrecy." Life of Madison, by Rives, Vol. 3, p. 371.

The first legislative body in America to throw open its debates to the public was the General Court of Massachusetts, in 1766, on the motion of Otis. Tudor's Life of Otis, 252.

2 It is mentioned neither in the English Petition of Rights nor in the Bill of Rights; of so little importance did it seem to those who were seeking to redress grievances in those days.

Story on Const. § 1889; 2 Kent, 17 et seq.; Rawle on Const. c. 10.

in principle, and accepted as authority. "Nor does our constitution or declaration of rights," he says, speaking of his own State, "abrogate the common law in this respect, as some have insisted. The sixteenth article declares that liberty of the press is essential to the security of freedom in a State; it ought not therefore to be restrained in this Commonwealth.' The liberty of the [* 421] press, not its licentiousness: this is the construction which a just regard to the other parts of that instrument, and to the wisdom of those who founded it, requires. In the eleventh article it is declared that every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character; and thus the general declaration in the sixteenth article is qualified. Besides, it is well understood and received as a commentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practised by other governments, and in early times here, to stifle the efforts of patriots towards enlightening their fellow-subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire-arms, which does not protect him who uses them for annoyance or destruction." 1

But while we concede that liberty of speech and of the press does not imply complete exemption from responsibility for every thing a citizen may say or publish, and complete immunity to ruin the reputation or business of others so far as falsehood and detraction may be able to accomplish that end, it is nevertheless believed that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications.

An examination of the controversies which have grown out of

1 Commonwealth v. Blanding, 3 Pick. 313. See charge of Chief Justice McKean of Penn., 5 Hildreth, 166; Wharton's State Trials, 323; State v. Lehre, 2 Rep. Const. Court, 809; Respublica v. Dennie, 4 Yeates, 267.