without whose permission it was criminal to publish a book 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. . To a much later day the press was not free to publish even the current news of the day where the government could imagine itself to be interested in concealment. Many matters, the publication of which now seems important to the 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 to sit with closed doors. No official publication of its debates was provided for, and no other allowed. The brief sketches which found their way into print were usually disguised under the garb of discussions in a fictitious parliament, 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 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. ch. 7. 2 See May's Constitutional History, chs. 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. between that which was lawful and that which was prohibited, 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, sent them forth with their 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 that no printing should be allowed in the Colony.1 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. A single printing-press was introduced into the Colony so early as 1640, but the publications 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 remonstrances, 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, 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.7 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 first open 1 1 Hildreth, History of the United States, 561. * 2 Bancroft, 73; 1 Hildreth, 452; 2 Palfrey's New England, 511, 512. 31 Bancroft, 97; 2 Hildreth, 166. 2 Hildreth, 298. 2 Hildreth, 77. 62 Hildreth, 171. debate was had in 1793, on the occasion of the controversy over the right of Mr. Gallatin to a seat in that 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 exercised, is of modern origin,1 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. 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."3 Blackstone also adopts the same opinion, 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.5 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 occasioned by his conduct, are not abolished by the protection afforded 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 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 press, not its licentious 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. 2 Hallam's Const. Hist. of England, ch. 15. De Lolme, Const. of England, 254. 44 Bl. Com. 151. 5 Story on Const. § 1889; 2 Kent, 17 et seq.; Rawle on Const. ch. 10. ness 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 Conceding, however, that liberty of speech and of the press does not imply complete exemption from responsibility for everything 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 still 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 the repressive measures resorted to for the purpose of restraining the free expression of opinion will sufficiently indicate the purpose of the guaranties which have since been secured against such restraints in the future. Except so far as those guaranties relate to the mode of trial, and are designed to secure to every accused person the right to be judged by the opinion of a jury upon the criminality of his act, their purpose has evidently been to protect parties in the free publication of matters of public concern, to 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. secure their right to free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. To guard against repressive measures by the several departments of the government, by means of which persons in power might secure themselves and their favorites from just scrutiny and condemnation, was the general purpose; and there was no design or desire to enlarge the rules of the common law which protected private character from detraction and abuse, except so far as seemed necessary to secure to accused parties a fair trial. The evils to be guarded against were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens. The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for the publication, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offence, or as by their falsehood and malice they may injuriously affect the private character of individuals. Or, to state the same thing in somewhat different words, we understand liberty of speech and of the press to imply not only liberty to publish, but complete immunity for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords. For these standards we must look to the common-law rules which were in force when the constitutional guaranties were established. At the common law an action would lie against any person publishing a false and malicious communication tending to disgrace or injure another. Falsehood, malice, and injury were the elements of the action; but as the law presumed innocence of crime or misconduct until the contrary was proved, the falsity of an injurious publication was presumed until its truth was averred and substantiated by the defendant; and if false, malice in the publication was also presumed unless the publication was privileged under rules to be hereafter stated. There were many cases, also, where the law presumed injury, and did not call upon the com |