Archive.org houses a digital copy of the fourth edition of Blackstone`s commentaries in the possession of John Adams. From the John Adams Library of the Boston Public Library. In this and other cases we have examined recently, where blasphemous, immoral, treasonous, schismatic, inflammatory or scandalous defamation is punishable under English law, some with greater severity, others with lesser gravity; Freedom of the press, properly understood, is in no way violated or violated. Freedom of the press is indeed essential to the nature of a free state: but it consists in not imposing prior restrictions on publications, not in not being subject to censorship for criminal cases when they are published. Every free person has the undisputed right to tell the public what he wants: to prohibit this is to destroy the freedom of the press; But if he publishes what is inappropriate, malicious or illegal, he must bear the consequences of his own audacity. To subject the press to the restrictive power of a licensor, as was the case before and after the revolution, is to subject all freedom of expression to the prejudices of one man and to make it the arbitrary and infallible judge of all disputed points of education, religion and government. But punishing (as the law currently does) all dangerous or offensive writings that, when published, are deemed harmful in a fair and impartial trial, is necessary for the preservation of peace and order, government and religion, the only solid foundations of civil liberty. Thus, the will of the individual remains free; Only the abuse of this free will is punishable by law. Nor is freedom of thought and research restricted by this: freedom of private feeling remains; Spreading or publishing bad feelings that destroy society`s goals is the crime that society corrects.
A man (says a good writer on the subject) is allowed to keep poisons in his closet, but not publicly, to sell them as liquors. And to this we can add that the only plausible argument used so far to restrict the just freedom of the press, “that it was necessary to prevent the daily abuse of the press”, will completely lose its force if it is demonstrated (by seasonal application of the laws) that the press cannot be diverted to bad ends without suffering an appropriate sanction: while it can never be used at a voucher when it is under the control of an inspector. It will be true that censorship of the license means preserving the freedom of the press. Blackstone`s Commentaries on the Laws of England was an extremely influential treatise on English law, methodically transforming this massive body of laws and legal decisions called “common law” into a coherent system of legal principles understandable to the layman. In the eyes of the American founders, commentaries were the most important authority in common law. His articulation of common law logic was one of the reasons they chose to establish the American legal system on its foundations. Blackstone is still cited today by lawyers and judges to express the importance of American law and the Constitution. The following selection comes from the founding constitution. Volume 5 (Doc.
4). Edited by Philip B. Kurland and Ralph Lerner. Chicago: University of Chicago Press, 1986. You can find the print edition on Amazon or online under the Founder`s Constitution. (This volume is available courtesy of the Posner Library) Alschuler, Albert W. “Rediscovering Blackstone.” University of Pennsylvania Law Review 145, No. 1 (1996): 1-55. William Blackstone, Patrick Henry and Edmund Burke on Liberty (1765-1790). In Reflections on Free Speech and the First Amendment.
Lexington: The University Press of Kentucky, 2011. This is the first issue of Blackstone`s Commentaries on the Laws of England Volume I. There are two characteristics of the common law understanding of defamation, as Blackstone interpreted it, which the founders rejected. First, Blackstone noted that, except in civil cases in which a person seeks damages against himself, since “the tendency of any defamation to create animosities and disturb the public peace is the sole consideration of the law,” the truth of the defamation is irrelevant to their defense. Second, the comments did not provide for a jury trial in seditious defamation cases, meaning that the government could decide cases in which it was the subject of the alleged defamation. In drafting the first federal law on seditious libel, the Sedition Act of 1798, the Federalists departed from these two principles by explicitly providing that truth could be offered as a defence by any person charged under the law, and that such cases would be heard by a jury. Of a kind very similar to the challenges are slander, libelli famosi, which, in their greatest and most complete sense, mean all writings, images or similar of an immoral or illegal tendency; But in the sense that we need to look at them now, they are malicious slanders of a person, especially a judge, published either in writing, in writing, with signs or images in order to provoke his anger or expose him to public hatred, contempt and ridicule. The direct tendency of these slanders is the breach of the public peace by inciting their objects to revenge and perhaps bloodshed. The communication of a defamation to a person is a publication in the eyes of the law: and therefore the sending of an abusive private letter to a man is as much a slander as if it were printed openly, because it is also subject to a breach of the peace. For the same reason, it does not matter whether it is true or false in relation to the nature of the defamation; For provocation, and not lying, is what must be punished criminally: although undoubtedly the lie of the latter can aggravate his guilt and increase his punishment. In a civil action, it should be remembered, defamation must appear both false and scandalous; For if the accusation is true, the plaintiff has suffered no private prejudice and has no reason to claim compensation for himself, whatever it may be against the public peace: and therefore, in a civil action, the veracity of the accusation may be affirmed. But in an application of the law, the tendency of all slanderers to create animosities and disturb the public peace is the sole consideration of the law.
And so, in such proceedings, the only facts to be taken into account are, first, the production or publication of the book or writing; and second, if the case is punishable: and if both counts are directed against the accused, the offence against the public is dismissed. The punishment of such slanderers, whether for making, repeating, printing or publishing the defamation, is in order, and the corporal punishment imposed by the court at its discretion; in relation to the quantity of the offence and the status of the offender. By the law of the twelve tablets in Rome, the slander that affected the reputation of others was declared a capital crime: but before the reign of Augustus, the punishment was only physical. Under the Emperor Valentinian, it was again made capital not only to write, but to publish or even refrain from destroying it. Our law, in this and many other respects, corresponds more to the Middle Ages of Roman jurisprudence, when liberty, scholarship and humanity were fully in force, than to the cruel edicts issued in the dark and tyrannical times of the ancient decemviri or later emperors. Levy, Leonard W. “The First Amendment: The Free Press Clause.” Origins of the Bill of Rights. New Haven: Yale University Press, 1999. A Wikipedia article on this author is available. From the publication of the commentaries until the early 1900s, these four volumes were required reading for all law students. Even today, he is often cited by the Supreme Court. Blackstone`s four-volume analysis of English common law proved even more popular in America than in England.
Published shortly before the War of Independence, it greatly influenced the authors of the Federal Constitution. Read the first issue online at archive.org, or read below: Berns, Walter. “Freedom of the Press and Aliens and Incitement Laws: A Reassessment.” The Supreme Court Review (1970): 109-159. Among other things, this article provides a useful overview of Blackstone`s view of common law and its implications for the American legal system. Berns argues that the Aliens and Sedition Acts were a liberal improvement over the seditious common law slander described by Blackstone, and that critics of these laws pointed to Blackstone more than their Federalist authors and advocates.