1. The Reception Statutes
At Independence, the new states moved expeditiously to establish their own new legal systems. Notwithstanding the rejection of English political con- trol, the former Colonies moved almost immediately to adopt the jurispru- dence, including the common law, under which they had functioned while Colonies, as the law of the new states. Thus, all states except Connecti- cut and Rhode Island promptly passed so-called reception statutes. These generally adopted the English and Colonial statutes and common law at a designated date as the law of the state, subject to any inconsistent statutory and constitutional provisions.17 The New York Constitution is typical, adopting
16 SeeBuel, note10, at59;1Leonard W. Levy,Legacy of Suppression80–81,177(1963) (hereinafter Levy,Suppression); Jeffery A. Smith,Printers and Press Freedom: The Ideology of Early American Republicanism144–145(1988) (hereinafter Jeffery A. Smith).
17 See generallyFord W. Hall, The Common Law: An Account of Its Reception in the United States,4Vand. L. Rev.791(1951);1Morton Horwitz,The Transformation of American Law4n.18
such of the common law, English statutes, and acts of the New York Assembly
“as together did form the law of the colony on April19,1775.”18
In consequence, the English common law as applied during the Colonial period in the respective Colonies now constituted part of the legal systems established by the new states. Criminal libel not only was a part of the law in the books. It again became a doctrine that could be meaningful in prac- tice. Matters had changed with the Revolution. With Patriot prosecutors and judges replacing the former Royalist representatives, Patriot juries no longer had any incentive to play a blocking role. Criminal libel became a formidable legal instrument to serve the needs of those controlling the gov- ernment – whether state or federal. As we will see, the new federal and state constitutional guaranties of freedom of speech and press made no change in the outcome. In the cases that ensued, the courts unanimously construed these to provide no more than a reaffirmation on the constitutional level of the protection against licensing and other prior restraints already available under the English common-law doctrine that had become part of the common law in every American jurisdiction.
With the Declaration of Independence, the Patriot forces committed to Independence who succeeded the Crown in political power were not faced by antagonistic Patriot juries ready to resist government efforts to invoke the doctrine. In consequence, in the period from Independence to the outbreak of the undeclared naval war with France that led to the enactment of the Sedition Act in July1798, renewed attempts were made to use criminal libel to deal with dissent. Furthermore, other concepts such as contempt of court or breach of privilege and contempt of the legislature for out-of-chamber publications were also available to serve as an alternative jurisprudential foundation for judicial suppression of opposition. (This is discussed in Chapter7.)
(1977repr.1992) (hereinafter Horwitz);1Oliver Wendell Holmes Devise,History of the Supreme Court of the United States, Julius Goebel, Jr.,Antecedents and Beginnings to 1801,109–118(1971) (hereinafter Goebel).
18 E.g., N.Y. Const., art.35(1777). Apr.19,1775, was the “famous day and year” of the Battles of Lexington and Concord that launched the Revolution and has been celebrated in song and story as well as in the New York law.SeeHenry Wadsworth Longfellow, Tales of a Wayside Inn, Paul Revere’s Ride, inAmerican Poetry: The Nineteenth Century173(Libr. Am.1993).
Eight other states used various statements referring to the common law among other sources.
Massachusetts and New Hampshire used a simpler, all-inclusive formulation. Although they did not refer specifically to the common law, their references, as in the New Hampshire Constitution –
“all the laws which have heretofore been adopted, used and approved . . . and usually practiced in the courts” – manifestly included it.
Although there were questions as to the precise content of the common law of the various states, these questions did not relate to criminal libel or the other repressive doctrines.
Criminal Libel After the Revolution 59 This is the very essence of the problem. As discussed in Chapter1, the year 1776had seen a political revolution. The monarchy was replaced by a republic governed by democratically elected representatives of the people. However, the political revolution was not matched by a legal revolution. Far from it, although the English legal system inevitably had evolved into a jurisprudence that implemented the established English political institutions, such as the monarchy and the established church, the new states adopted itin toto. In consequence, the Early Republic was burdened by all the doctrines for sup- pressing critical speech attacking the English monarchical establishment, including criminal libel, blasphemy, and contempt of court and contempt of the legislature for out-of-chamber speech. These doctrines provided the legal weapons to restrict the unrestrained freedom of discussion required for the electorate to conduct the free political debate required by a free demo- cratic society. It took150 years of evolution of an expanding constitutional jurisprudence giving increasingly broader and broader scope to the guaranties of the Bill of Rights before the Supreme Court struck down the last of these pernicious doctrines.19
A recognition of the failure of the political revolution to be matched by a legal revolution helps explain the great gulf between the views of the press, on the one hand, and the bench, on the other, on the meaning and significance of the constitutional guaranties of freedom of speech and press. As a result of this profound misunderstanding, much of the press relying on the political ideals underlying the Revolution, seemed utterly unprepared for the severity of the reaction of the Federalists to criticism of the Washington and Adams administrations and their readiness to exploit the doctrine of criminal libel to bring it to an end.
2. The Role of Blackstone
For the American lawyers and judges of the late18th and early19th centuries, Blackstone’sCommentarieswere universally accepted as the definitive state- ment of the English law. With the Revolution, Blackstone similarly became the authoritative reference on the contents of the American common-law jurisprudence inherited from the English.
As stated by Blackstone, freedom of speech and press was highly restricted;
it meant the absence of licensing or prior restraint and no more.
19 The process was not complete until as late as1964with the decisions of the Supreme Court in N.Y. Times Co. v. Sullivan,376U.S.254(1964) and Garrison v. Louisiana,379U.S.64(1964).
In . . . the . . . instances . . . where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity; theliberty of the press, properly understood, is by no means infringed or violated.
The liberty of the press is indeed essential to the nature of a free state:
but this consists in laying nopreviousrestraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. . . . Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.20
For more than150years following the Declaration of Independence, the highly limited scope of freedom of speech under the Blackstonian definition was universally accepted by the courts as the law in the United States. Aside from the demise of prior restraint, freedom of speech was no more than rhetoric for this period as far as the courts and their construction of the state and, later, the federal Constitutions were concerned. Although popular attitudes may have differed on the scope of the constitutional guaranties of freedom of speech and press, the more expansive concept so vigorously expressed in the political arena by the Jeffersonians had not yet percolated into the legal system and did not do so for more than150years.
For a full understanding of the American legal and constitutional experi- ence with the law of criminal libel and the other repressive jurisprudential doctrines so much at a variance with the principles underlying the new Revolutionary political system, one must fully grasp the overarching influ- ence of Blackstone.21Thus, Charles Warren writes of the “almost scriptural
20 See 4William Blackstone,Commentaries on the Laws of England151–152(1769, repr.1992) (hereinafter Blackstone) (italics in original).
21 For a contemporaneous view of Blackstone,see1Zephaniah Swift,System of the Laws of the State of Connecticut41(1795, repr.1972). (“But no writer on law has acquired greater distinction than Sir William Blackstone. He has reduced order out of chaos, and in his commentaries, exhibited a complete system of the laws of England. From this work, the student will obtain a general understanding of this science, in a much shorter time than from any other author. His writings . . . have secured to him a fame that will last as long as the memory of those laws on which he has written will endure.”)
Thus, Francis Wharton referred to him as “The great author of the commentaries of the laws of England. For near thirty years it has been the manual of almost every student of law in the United States.” Francis Wharton,State Trials of the United States During the Administrations of Washington and Adams478(1847).
Criminal Libel After the Revolution 61 authority of Blackstone in our early law.”22 Hammond similarly concludes that Blackstone had an “overshadowing influence on the construction of American law.”23 These conclusions are fully supported by the dozens of cases discussed in this volume.
When the American courts in the areas under examination wanted an authoritative reference to the contents of the common law, they typically turned to Blackstone. As readers will see, the law as described by Blackstone repeatedly guides the federal and state courts alike as they apply the doc- trines of criminal libel, blasphemy, contempt of court, and contempt of the legislature. The courts, federal and state alike, went further. Blackstone was their guide for constitutional purposes as well. In construing the federal and state constitutional guaranties of freedom of speech and press, they uniformly adopted the narrow view of Blackstone on the meaning of freedom of speech and press24 and freedom of religion25 in the English law as the definitive statement of the scope of the comparable guaranties in the new American federal and state Constitutions.
One glowing example illustrates the persistence of Blackstone’s preemi- nence over more than a century of American jurisprudential experience. As late as 1915, in Patterson v. Colorado,26 the Supreme Court of the United States was upholding the expansive common-law doctrine sanctioning the use of contempt of court to punish out-of-court publications critical of judi- cial conduct. In speaking for the Court on the scope of the First Amendment,
This is the reality of the times. Criticisms by modern scholars of weaknesses in Blackstone’s scholarship are irrelevant. The courts in the period under review did not question it.
22 Charles Warren,History of the American Bar174,187(1913).
23 1Jabez Hammond, W. Blackstone,Commentaries on the Law of Englandviii–x,cited with approval, Felix Frankfurter & James M. Landis, Power of Congress over Procedure in Criminal Contempts in “Inferior” federal courts – A Study in Separation of Powers,37Harv. L. Rev.1010,1046n.128 (1924).
24 During the first25 or30 years of the New Republic, Blackstone was the only commentary available. Thus, Justice Frankfurter and Dean Landis speak of the “Amazing circulation of the Commentaries among American lawyers.”Ibid., Story, for example, relied on Blackstone as the definitive statement of criminal libel law and blasphemy law. See2Joseph Story,Commen- taries on the Constitution of the United States§1883(5th ed. Melville Bigelow ed.1891, repr.
1994).
25 Examples from the blasphemy experience include Updegraph v. Commonwealth,11Serg. &
Rawle394,1824Pa. LEXIS85,20Pick.206(1824); Commonwealth v. Kneeland.37Mass.206, 213,1838Mass. LEXIS35(1838). Some of the newspapers of the period did the same.See, e.g., Providence Patriot & Columbian Phoenix, Dec.15,1827(blasphemy in the English common law defined by Blackstone, referring to the quotation in the text.)
26 Patterson v. Colorado,205U.S.454(1907). Holmes is reported to have regretted the statement.
SeeCh.7, note148.
Justice Oliver Wendell Holmes, Jr., accepted the old common-law doctrine restricting the scope of constitutional guaranties of freedom of speech and press to the prohibition of prior restraints. Speaking in language that could have been borrowed from Blackstone, Holmes echoed that “the main pur- pose of such [constitutional] provisions is ‘to prevent suchprevious restraints upon publications.” Although this was Blackstone speaking of criminal libel, Holmes makes clear that he has accepted the law in that area as providing a model for determination of the comparable constitutional issue in contempt, and leaving no doubt as to the origin of the doctrine, he concludes with a citation to Blackstone.27
The professional education of lawyers helps explain this continued uni- versal reliance on the English common law and on Blackstone. Without exception, American lawyers through education and training were common lawyers. They were common-law fish swimming in a common-law sea. This was their professional universe. In consequence, all legal questions were typ- ically answered by reference to the common law inherited from the mother country. Finally, English common law meant the common law as articulated by Blackstone.
When a nonlawyer such as Madison attempted to deal with the legal problems, such as freedom of speech, facing the country after the Revolution, he employed a different frame of reference. He not only approached the problem in political, rather than legal, terms, but in political terms that reflected the principles of the Revolution and the new Constitution. He demonstrated that the English doctrines of the common law developed to choke off criticism of the monarchy and the established church did not serve the objectives of the Revolutionary democratic and republican governmental structure. In the New Republic, the need for periodic elections and the conduct of government by elected representatives of the people required a range of freedom for political debate that was anathema under the English system fashioned to serving the needs of a monarchy.28
27 205U.S. at462(”the rule applied to criminal libels applies yet more clearly to contempts”).
28 SeeReport of the Majority Committee on the Virginia Resolution. James Madison,Writings 588–591,608–616(Libr. Am.1999). This powerful document attributed to Madison condemned the Sedition Act and its constitutionality. Although drafted by a layman, it was adopted by a legislature containing many lawyers. However, the Resolution was a political document relating to the conduct of new federal government. Although it referred to legal principles, there was no suggestion of any kind that the scathing criticism had any application whatsoever to the identical repressive common-law doctrines under the laws of the various states. Thus, however expedient these comments may have been for political purposes, it destroys their persuasiveness for purposes of federal legal constitutional analysis.See alsoLetter, Thomas Jefferson to James Madison (Feb.
Criminal Libel After the Revolution 63 Although Madison rested his argument on political grounds, his views were echoed by some Republican lawyers. As the distinguished legal scholar St.
George Tucker put it, in1799:
every statute and rule of the common law which were inderogationof the rights of the people, being founded in the nature of regal government, were consigned to oblivion in America by the declaration of indepen- dence, wherebyroyalty wasannihilatedin this country and prerogative buried under theequal rights of menandcitizens.
He went on to attack Blackstone’s definition of freedom of speech as based on decisions of the Star Chamber.29
Republican lawyers accepted this analysis, but only as a matter of expedi- ency for political purposes. When it came to state jurisprudence, they were as devoted Blackstonians as the Federalists, fully accepting the same Black- stonian limitations on the constitutional guaranties of free speech and press in their own state Constitutions. Even Jefferson fully accepted traditional criminal libel as valid law in the states, provided only that evidence of truth was admissible.30
As noted, notwithstanding the clash between the Revolutionary political values and the traditional legal system, the lawyers raised in the common law applied the law as they knew it. In the federal criminal libel litigations, the courts without exception followed Blackstone. This was not surprising because the federal judges in all these cases were committed Federalists.
However, as demonstrated by the extensive examination of criminal libel in the state courts in Chapter6, the Republican state judges were as zealous in applying English common-law and constitutional doctrines as expounded by Blackstone as their Federalist counterparts. They were all prisoners of their professional education and training.
17,1826),10Writings of Thomas Jefferson376(P. L. Ford ed.1899) (hereinafterJefferson, Writings (Ford)).
29 See St. George Tucker,A Letter to a Member of Congress respecting the Alien and Sedition Laws 15,33(1799).
30 See, e.g.,1Jefferson,Writings(Ford ed.), note28, at344–345,353,363; Letter, Thomas Jefferson to Levi Lincoln (Mar.24,1802),8id., at139; Letter, Thomas Jefferson to Thomas McKean, (Feb.19, 1803),9id., at451–452; Letter, Thomas Jefferson to James Madison (Feb.26,1826),16Jefferson, Writings156(A. Lipscomb and Bergh, eds.1904); Letter, Thomas Jefferson to Abigail Adams (Sept.
11,1804),Writings of Thomas Jefferson49,51(Thomas Jefferson Memorial Ass’n); Letter, Thomas Jefferson to Thomas Seymour (Feb.11,1807),9Jefferson,Writings25(Ford).See alsoJeffery A.
Smith, note16.
What Blackstone had to say on criminal libel was clear. Relying on the relatively modern variations of Holt and Mansfield, Blackstone definitively described the English common-law criminal libel as
malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule.
The direct tendency of these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to blood- shed . . . [I]t is immaterial with respect to the essence of a libel, whether the matter of it be true or false; since the provocation, and not the falsity, is the thing to be punished criminally: though, doubtless, the falsehood of it may aggravate it’s [sic] guilt, and enhance it’s [sic] punishment . . . in a criminal prosecution, the tendency which all libels have to create ani- mosities, and to disturb the public peace is the sole consideration of the law. . . . [T]he only facts to be considered are, first, the making or pub- lishing of the book or writing; secondly, whether the matter be criminal:
and, if both these points are against the defendant, the offense against the public is complete.31
In so doing, Blackstone gave the impression that the doctrine had ancient common-law roots.32But whether the doctrine was ancient or relatively mod- ern was only of academic concern. Blackstone’s statement, as in the case of the other contents of his treatise, was widely accepted as the definitive statement of the common-law doctrine. Although, as we have seen, there was some isolated dissent from American critics, particularly Madison and Tucker, Blackstone’s comprehensive statement not only provided a full statement of the English law of the time, but was repeatedly cited by the American decisions of the 18th and early19th centuries as the prevailing law in the this country as well.33 Not until well into the20th century did English and American jurisprudence begin to change. Through the Adams administration, Blackstone represented American law. This is true of the state and federal courts, subject only to
31 See4Blackstone, note20, at150–151.
32 Mayton, for example, vigorously attacks Blackstone’s scholarship. He contends that the so-called ancient roots of the common law pertained solely to civil libel, and that criminal libel had been inventedad hocby the Star Chamber in the case entitledDe Libellis Famosisdecided in1605, which cited no precedents and formulated in a half-dozen later17th-century decisions. De Libellis Famosis,5Coke125,77Eng. Rep,250(1605).SeeWilliam Mayton, Criminal Libel and the Lost Guarantee of a Freedom of Expression,84Colum. L. Rev.91,102–108(1984).See alsoHamburger, note3, at691–714.
33 E.g. Commonwealth v. Clap,4Mass.163,166(1808); State v. Avery,7Conn.266,268,1828Conn.
LEXIS36(1828); Scharff v. Commonwealth,2Binney514,517,1810Pa. LEXIS41(1810).