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tions under it were instrumental, among other things, in the final overthrow and destruction of the party by which it was adopted, and it is impossible to conceive, at the present time, of any such state of things as would be likely to bring about its re-enactment, or the passage of any similar repressive statute.1

When it is among the fundamental principles of the government that the people frame their own constitution, and that in doing so they reserve to themselves the power to amend it from time to time, as the public sentiment may change, it is difficult to conceive any sound basis on which prosecutions for libel on the system of government can be based, except when their evident intent and purpose is to excite rebellion and civil war. It is very easy to lay down a rule for the discussion of constitutional questions; that they are privileged, if conducted with calmness and temperance, and that they are not indictable unless they go beyond the bounds of fair discussion. But what is calmness and temperance, and what is fair in the discussion of supposed evils in the government? And if something is to be allowed "for a little feeling in men's minds," 2 how great shall be the allowance? The heat of the discussion will generally be in proportion to the magnitude of the evil, as it appears to the party discussing it: must the question, whether he has exceeded due bounds or not, be tried by judge and jury, who may sit under different circumstances from those under which he has spoken, or at least after the heat of the occasion has passed away, and who, feeling none of the excitement themselves, may think it unreasonable that any one else should ever have felt it? The dangerous character of such prosecutions would be the more glaring if aimed at those classes who, not being admitted to a share in the government, attacked the constitution in the point which excluded them. Sharp criticism, ridicule, and the exhibition of such feeling as a sense of injustice engenders, is to be expected from any discussion in these cases; but when the very classes who have established the exclusion as proper and reasonable are to try as judges and jurors the assaults made upon it, they will be very likely to enter upon the examina

1 For prosecutions under this law, see Lyon's case, Wharton's State Trials, 333; Cooper's case, Ibid. 659; Haswell's case, Ibid. 684; Callender's case, Ibid. 688. And see 2 Randall's Life of Jefferson, 417-421; 5 Hildreth's Hist. of U. S. 247, 365.

Regina v. Collins, 9 C. & P. 460, per Littledale, J.

tion with a preconceived notion that such assaults upon their reasonable regulations must necessarily be unreasonable. The great danger, however, of recognizing any such principle in the common law of America, is, that in times of high party excitement, it may lead to prosecutions by the party in power, to bolster up wrongs and sustain abuses and oppressions by crushing adverse criticism and discussion. The evil, indeed, could not be of long continuance; for, judging from experience, the reaction would be speedy, thorough, and effectual; but it would be no less a serious evil while it lasted, the direct tendency of which would be to excite discontent and to breed a rebellious spirit. Repression of full and free discussion is dangerous in any government resting upon the will of the people. The people cannot fail to feel that they are deprived of rights, and will be certain to become discontented, when their discussion of public measures is sought to be circumscribed by the judgment of others upon their temperance or fairness. They must be left at liberty to speak with the freedom which the magnitude of the supposed wrongs appears in their minds to demand; and if they exceed all the proper bounds of moderation, the consolation must be, that the evil likely to spring from the violent discussion will probably be less, and its correction by public sentiment more speedy, than if the terrors of the law were brought to bear to prevent the discussion.

The English common-law rule which made libels on the constitution or the government indictable, as it was administered by the courts, seems to us unsuited to the condition and circumstances of the people of America, and therefore to have never been adopted in the several States. If so, it would not be in the power of the State legislatures to pass laws which should make mere criticism of the constitution or of the measures of government a crime, however sharp, unreasonable, and intemperate it might be. The constitutional freedom of speech and of the press must mean a freedom as broad as existed when the constitution which guarantees it was adopted, and it would not be in the power of the legislature to restrict it, except in those cases of publications injurious to private character, or public morals or safety, which come strictly within the reasons of civil or criminal liability at the common law, but where, nevertheless, the common law as we have adopted it failed to provide a remedy. It certainly could not be said that freedom of speech was violated by a law which should

make imputing the want of chastity to a female actionable without proof of special damage; for the charge is one of grievous wrong, without any reason in public policy demanding protection to the communication, and the case is strictly analogous to many other cases where the common law made the party responsible for his false accusations. The constitutional provisions do not prevent the modification of the common-law rules of liability for libels and slanders, but they would not permit bringing new cases within those rules when they do not rest upon the same reasons.1

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1 In Respublica v. Dennie, 4 Yeates, 267, the defendant was indicted in 1805 for publishing the following in a public newspaper: "A democracy is scarcely tolerated at any period of national history. Its omens are always sinister, and its powers are unpropitious. With all the lights of experience blazing before our eyes, it is impossible not to discover the futility of this form of government. It was weak and wicked at Athens, it was bad in Sparta, and worse in Rome. It has been tried in France, and terminated in despotism. It was tried in England, and rejected with the utmost loathing and abhorrence. It is on its trial here, and its issue will be civil war, desolation, and anarchy. No wise man but discerns its imperfections, no good man but shudders at its miseries, no honest man but proclaims its fraud, and no brave man but draws his sword against its force. The institution of a scheme of polity so radically contemptible and vicious is a memorable example of what the villany of some men can devise, the folly of others receive, and both establish in spite of reason, reflection, and sensation." Judge Yeates charged the jury, among other things, as follows: "The seventh section of the ninth article of the constitution of the State must be our guide upon this occasion; it forms the solemn compact between the people and the three branches of the government, the legislative, executive, and judicial powers. Neither of them can exceed the limits prescribed to them respectively. To this exposition of the public will every branch of the common law and of our municipal acts of assembly must conform; and if incompatible therewith, they must yield and give way. Judicial decisions cannot weigh against it when repugnant thereto. It runs thus: The printing-presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of the government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers, investigating the official conduct of officers or men in a public capacity, or where 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 a right to determine the law and the facts under the direction of the court, as in other cases.' Thus it is evident that legislative acts, or of any branch of the government, are open to public discussion; and every citizen may freely speak, write, or print on any subject, but is accountable for the abuse of that privilege. There shall be no licenses of the press. Publish as you please in the first instance,

Criticism upon Officers and Candidates for Office.

There are certain cases where criticism upon public officers, their actions, character, and motives, is not only recognized as

without control; but you are answerable both to the community and the individual if you proceed to unwarrantable lengths. No alteration is hereby made in the law as to private men affected by injurious publications, unless the discussion be proper for public information. But if one uses the weapon of truth wantonly for disturbing the peace of families, he is guilty of a libel.' Per General Hamilton, in Croswell's Trial, p. 70. The matter published is not proper for public information. The common weal is not interested in such a communication, except to suppress it.

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"What is the meaning of the words, being responsible for the abuse of that liberty,' if the jury are interdicted from deciding on the case? Who else can constitutionally decide on it? The expressions relate to and pervade every part of the sentence. The objection that the determinations of juries may vary at different times, arising from their different political opinions, proves too much. The same matter may be objected against them when party spirit runs high, in other criminal persecutions. But we have no other constitutional mode of decision pointed out to us, and we are bound to use the method described.

"It is no infraction of the law to publish temperate investigations of the nature and forms of government. The day is long past since Algernon Sidney's celebrated treatise on government, cited on this trial, was considered as a treasonable libel. The enlightened advocates of representative republican government pride themselves in the reflection that the more deeply their system is examined, the more fully will the judgments of honest men be satisfied that it is the most conducive to the safety and happiness of a free people. Such matters are 'proper for public information.' But there is a marked and evident distinction between such publications, and those which are plainly accompanied with a criminal intent, deliberately designed to unloosen the social band of union, totally to unhinge the minds of the citizens, and to produce popular discontent with the exercise of power by the known constituted authorities. These latter writings are subversive of all government and good order. The liberty of the press consists in publishing the truth, from good motives and for justifiable ends, though it reflects on government or on magistrates.' Per General Hamilton, in Croswell's Trial, pp. 63, 64. It disseminates political knowledge, and, by adding to the common stock of freedom, gives a just confidence to every individual. But the malicious publications which I have reprobated infect insidiously the public mind with a subtle poison, and produce the most mischievous and alarming consequences by their tendency to anarchy, sedition, and civil war. We cannot, consistently with our official duty, declare such conduct dispunishable. We believe that it is not justified by the words or meaning of our constitution. It is true it may not be easy in every instance to draw the exact distinguishing line. To the jury it peculiarly belongs to decide on the intent and object of the writing. It is their duty to judge candidly and fairly, leaning to the favorable side when the criminal intent is not clearly and evidently ascertained.

legitimate, but large latitude and great freedom of expression permitted, so long as good faith inspires the communication. There are cases where it is clearly the duty of every one to speak freely what he may have to say concerning public officers, or those who may present themselves for public positions. Through the ballotbox the electors approve or condemn those who ask their suffrages; and however emphatic the condemnation, and upon whatever grounds, no action will lie therefor. Some officers, however, are not chosen by the people directly, but designated through some other mode of appointment. But the public have a right to be

"It remains, therefore, under our most careful consideration of the ninth article of the constitution, for the jury to divest themselves of all political prejudices (if any such they have), and dispassionately to examine the publication which is the ground of the present prosecution. They must decide on their oaths, as they will answer to God and their country, whether the defendant, as a factious and seditious person, with the criminal intentions imputed to him, in order to accomplish the objects stated in the indictment, did make and publish the writing in question. Should they find the charges laid against him in the indictment to be well founded, they are bound to find him guilty. They must judge for themselves on the plain import of the words, without any forced or strained construction of the meaning of the author or editor, and determine on the correctness of the innuendoes. To every word they will assign its natural sense, but will collect the true intention from the context, the whole piece. They will accurately weigh the probabilities of the charge against a literary man. Consequences they will wholly disregard, but firmly discharge their duty. Representative republican governments stand on immovable bases, which cannot be shaken by theoretical systems. Yet if the consciences of the jury shall be clearly satisfied that the publication was seditiously, maliciously, and wilfully aimed at the independence of the United States, the Constitution thereof or of this State, they should convict the defendant. If, on the other hand, the production was honestly meant to inform the public mind, and warn them against supposed dangers in society, though the subject may have been treated erroneously, or that the censures on democracy were bestowed on pure unmixed democracy, where the people en masse execute the sovereign power without the medium of their representatives (agreeably to our forms of government), as have occurred at different times in Athens, Sparta, Rome, France, and England, then, however the judgments of the jury may incline them to think individually, they should acquit the defendant. In the first instance the act would be criminal; in the last it would be innocent. If the jury should doubt of the criminal intention, then also the law pronounces that he should be acquitted. 4 Burr. 2552, per Ld. Mansfield." Verdict, not guilty. The fate of this prosecution was the same that would attend any of a similar character in this country, admitting its law to be sound, except possibly in cases of violent excitement, and when a jury could be made to believe that the defendant contemplated and was laboring to produce a change of government, not by contitutional means, but by rebellion and civil war.

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