1. Eighteenth-Century English Law
Over the centuries, the English Crown had utilized a series of legal measures to control the press and to throttle dissent, including treason, constructive treason, criminal libel including seditious libel, and licensing.3 As Philip Hamburger has demonstrated in his seminal article, seditious libel in the form with which the American Colonies and the Early American Republic were familiar did not assume its definitive form until the early18th century.
By then, the early system of controlling the press through such prior restraints as licensing and government censorship had come to an end, and the reforms in the Treason Trials Act of1696had rendered impractical resort to treason as a method of dealing with printed criticism.4 The Crown then turned to seditious libel as enunciated by the Star Chamber5 and subsequently refashioned in a series of decisions by Chief Justice Holt and Lord Mansfield.6
2 The Sedition Act has been widely condemned by historians.See, e.g.,3Dumas Malone,Jefferson and His Time, Jefferson and the Ordeal of Liberty389(1962); James Morton Smith,Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties(1956); John C. Miller,Crisis in Freedom: The Alien and Sedition Acts(1952). However, it has its defenders.See, e.g.,1William W.
Crosskey,Politics and the Constitution in the History of the United States353–354(1953); Samuel E. Morison,The Oxford History of the American People353(1965);2Page Smith,John Adams 1784–1826,975–976(1962); and Frank M. Anderson, Alien and Sedition Laws,1912Ann. Rep., Am. Hist. Ass’n115(1912).
3 SeePhilip Hamburger, The Development of the Law of Seditious Libel and the Control of the Press,37Stan. L. Rev.661(1985) (hereinafter Hamburger); R. H. Helmholz and Thomas A. Green, Juries, Libel, & Justice: The Role of English Juries in Seventeenth- and Eighteenth-Century Trials for Libel and Slander(1984).
4 7&8William III, c.5(1695–1696).SeeHamburger, note3, at714–725.
5 De Libellis Famosis,5Coke125,77Eng. Rep.250(Star Chamber1605).
6 E.g., Chief Justice Holt in: Rex v. Pain,87Eng. Rep.584(K.B.1696); Rex v. Bear,90Eng. Rep.
1132,91Eng. Rep.363,1175(K.B.1698); and Lord Mansfield in Dean of St. Asaph’s Case,3Term.
Rep.429,4Doug.73,100Eng. Rep.657(K.B.1784).
English Seditious and Criminal Libel Law 55 As Philip Hamburger reports,7 English prosecutions for seditious libel then became very common. Between1724and1760, at least115informations and indictments for seditious libel were filed in the Court of King’s Bench alone.
It became a prominent part of English criminal law and was the doctrine with which American Colonial and revolutionary lawyers were familiar. However fascinating the historical evolution of the legal doctrines through which the English Crown tried to restrain the press and repress public views critical of the monarchy,8it precedes the period with which we are concerned and need not be retraced here.
2. The Colonial Experience
The Colonies operating under the English Crown largely accepted English common law as the law of the Colonies. English common-law criminal libel became the law of the Colonies as well as the law of England. Then, when the Colonies became independent states, the new states adopted the laws of the Colonies, including the common law, as their own.9
Studies of the period provide a comprehensive review of the litigation involving criminal libel and related doctrines in the Colonies before the Revolution.10 Aside from one abortive attempt to reestablish licensing and prepublication censorship in Massachusetts in1722–1723notwithstanding its demise in England, as well as isolated resorts to stamp taxes and trials for treason, the arsenal of government weapons to punish dissident political speech typically took three forms: criminal libel, wide-ranging contempt of court, and breach of privilege or contempt of the legislature extending to out- of-chamber publications. As the century progressed with increasing tensions between the Crown and the Colonists, the practical efficacy of criminal libel for suppression of dissent was increasingly impaired; Colonist juries refused to convict. Correspondingly, breach of privilege or contempt of the legislature in
7 Hamburger, note3, at725.
8 Ibid., at661–762.
9 See1Joseph Story,Commentaries on the Constitution of the United States of America§§154–158 (5th ed. Melville Bigelow ed.1891) (hereinafter Story,Commentaries).
10 See Harold L. Nelson, Criminal Libel in Colonial America.,3 Am. J. Leg. Hist.160 (1959) (hereinafter Nelson); Richard Buel, Jr., Freedom of the Press in Revolutionary America: The Evolution of Libertarianism,1760–1820, inThe Press and the American Revolution59(B. Bai- lyn and J. Hench eds.1980) (hereinafter Buel); Clyde A. Duniway,The Development of Free- dom of the Press in Massachusetts(1906, repr.1969) (hereinafter Duniway); John Lofton,The Press as Guardian of the First Amendment5(1980) (hereinafter Lofton); Jeffrey L. Pasley,“The Tyranny of Printers”: Newspaper Politics in the Early American Republic(2001); Livingston R.
Schuyler,The Liberty of the Press in the American Colonies(1905); Mary P. Clarke,Parliamentary Privilege in the American Colonies(1943); Arthur P. Scott,Criminal Law in Colonial Virginia (1930).
which the legislature acted as its own judge and jury and Patriot juries played no role increasingly became a more useful vehicle for silencing Colonial critics.
There appear to have been at least 16 attempts by British authorities to employ criminal libel prosecutions during the 18th century. It was an unhappy experience for the Royal authorities. Notwithstanding these persis- tent attempts, the Crown obtained onlyoneconviction in75years. Further, the conviction occurred early in the period, in a 1724 Massachusetts case involving one John Checkley, “an Englishman and of the high church party.”
The jury dutifully followed the court’s instruction. Finding that the defen- dant had made the statement alleged, the jury was content to have the judge determine whether such facts constituted a libel.11
In four cases, including the celebratedZengercase in New York in1735, the jury acquitted the defendant,12and in one other, they could not reach a verdict. In most of the cases, the Crown failed on the pleadings13or otherwise failed to go to trial. In addition, in a number of cases, it appears that the juries went beyond their instructions, either appearing to decide issues of law or to accept truth as a defense.
From the point of view of the Crown, the experience was highly frustrating.
In consequence, after the acquittal inZengerin1735, the Crown instituted no criminal libel prosecutions during the remaining40years of British rule in America. The Crown turned instead to breach of privilege or contempt of the legislature as the doctrine under which to proceed against dissident printers. Even here, however, although it has been suggested that “the chief legal threat to the colonial printer lay in actions by the legislative body,”14 the cases were few and the number of convictions even less.15For a general
11 SeeNelson, note10, at168–172; note10, at Duniway, 108–111(“the fate of John Checkley proved that it was still exceedingly dangerous to publish religious opinions that were not in harmony with the predominant sentiment in the province”).
12 Rex v. Zenger,17Howell’s St. Trials675,16American State Trials5(N.Y.1735), and Rex v.
Thomas Maule (Mass.1695–96) both resulted in acquittals.The jury disagreed in the case of Rex v.William Bradford (Pa.1692).SeeNelson, note10, at165.
Without providing any details as to the citation or name of defendant or the jurisdiction, Nelson reports that a German immigrant accused of libeling Governor William Cosby of Virginia was acquitted in1735.SeeNelson,id., at160.See alsoSchuyler, note10, at26–27;1Isaiah Thomas, History of Printing in America220(1874).
13 In the case of Samuel Mulford (N.Y.1714), the defendant successfully demurred to his indictment on the ground that the court lacked jurisdiction over a charge of an alleged libel of the Royal Governor in a speech before the Assembly.SeeNelson, note10, at166.
14 See ibid., at172.
15 For a full discussion of contempt of the legislature, readers are referred to Ch.7.
Criminal Libel After the Revolution 57 discussion of breach of privilege and contempt of the legislature, readers are referred to Chapter7.
The reactions of the Colonial legislatures, particularly the lower houses representing the populace, were far from monolithic. Everything turned on the politics of the party in control of the lower house. In Massachusetts, with the Patriots in control of the lower house, it refused to act in1768on the charge of the Governor and the Council that the Boston Gazette had committed libel, asserting that “liberty of the press is the great bulwark of the liberty of the people.” By contrast, in New York, where the Crown controlled the Assembly, Alexander McDougall was indicted and jailed in1770–1771for criticizing the New York Assembly.16
In summary, the Colonial experience with criminal libel is essentially a record of failure. Harold Nelson and others, accordingly, conclude that criminal libel had ended as serious threat to American Colonial printers in their disputes with the Crown. As explained above, this occurred because in cases involving Patriot printers, Patriot juries identified with the printers and refused to convict or even to respect the instructions of the court. As a matter of jurisprudence, however, the continued acceptance of criminal libel as a firmly established doctrine of the Colonial and later the new federal and state legal system remained unchallenged.