Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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PRESS

III.83.1

PRESS, The Newspaper and Periodical. The discussion of this topic naturally divides itself into: 1, some account of the origin of the newspaper press in this and other countries, and the statistics of its development at the present time: 2, the relations of government to the press, from the censorship and licensing of printing to the complete liberty of the press which now exists in free countries, with particular reference to the history of the growth of this freedom in England and the United States; and 3, the relations of the press to individuals, and the present condition of the law of newspaper libel.

III.83.2

—1. Authorities differ as to the origin of the newspaper. Disraeli gives the Venetians credit for the invention. Doubtless their monthly Gazetta—a title derived from the name of a farthing coin peculiar to Venice—were in advance of the English in the periodical circulation of news in manuscript sheets. But if we date the origin of the newspaper from the issue of manuscript sheets for general information, we must go back to the time of the Cæsars, when the Acta Diurna, containing brief items of official news, were circulated under the auspices of the Roman government. Printed news sheets appeared in most of the European countries at various periods in the seventeenth century. In Germany periodical publications were preceded by irregular publications of news, summaries of events, etc., in the sixteenth century. The first regular newspaper in that country and in Europe, was a weekly paper established at Frankfort in 1615, by Egenolph Emmel, a bookseller. In 1616 Johann von der Birghden, the postmaster at Frankfort, established the Frankfurter Oberpostamts-Zeitung, the oldest successful German newspaper. The Allgemeine Zeitung, established at Tubingen in 1798. by Cotta, the publisher, and still continued at Augsburg, has been the most successful and the most influential of the German newspapers. The German periodical press, both in its political and literary publications, is now the most firmly established, the most widely diffused and the most ably conducted press of the continent, notwithstanding the repressive restrictions of the government. The precursor of the French periodical press was the Gazette, issued by Théophraste Renaudot in 1631, and continuing, under modifications of title, until 1789, first as a weekly, then as a semi-weekly, and finally as a daily publication. The Moniteur, the official organ of the government, was founded in 1789. The first daily newspaper was the Journal de Paris ou Poste du Soir, established in 1777. An enormous number of political journals have flourished for a greater or less period in the French capital during the last 100 years, several of the cheaper newspapers now published there reaching circulations not paralleled in other countries. In Spain a court journal was founded in the middle of the eighteenth century. The alternating rigor of government supervision in Spain has prevented any such development of the periodical press of that country as is seen elsewhere. The first Russian newspaper was established in 1703, and newspapers are now published in the principal cities of the empire, under very rigid censorship. The Italian and Austrian newspapers are inferior to those of Germany and France, although several reach wide circulations and wield a powerful popular influence.

III.83.3

—Nathaniel Butter, who founded the "London Weekly News" in 1622, is regarded as the father of English journalism. Printing presses had been at work in England for 150 years previously, but news had been published only in stray sheets and pamphlets, issued at irregular intervals, and without relation to each other. Crude newspapers became comparatively numerous during the commonwealth, and were freely used to disseminate political opinions by both royalists and puritans. They had quaint titles, such as "The Scot's Dove," "The Parliament Kite," "The Secret Owl," etc. With the restoration a strict censorship of the press was resumed. The first commercial newspaper, "The City Mercury," appeared in London in 1675; the first literary journal "The Mercurius Librarius," in 1680; and the first daily newspaper, the "Daily Courant," in 1709. "The London Times" first appeared in 1785, under the name of "The Daily Universal Register," printed and published by John Walter, of Printing House Square. Its circulation at the commencement of the present century was 1,000 copies daily, and the aggregate circulation of all the other London daily newspapers published at that time was 4,000 copies a day. In 1815 the number of newspapers published in the United Kingdom was 252, of which fifty-five were in London, and fifteen of these daily, 122 in the English provinces and Wales, twenty-six in Scotland, and forty-nine in Ireland. From the close of the Napoleonic wars the growth of English journalism was remarkably rapid. The reform excitement greatly increased the circulation and influence of newspapers of every shade and kind. In 1833 there were 400 newspapers published in the United Kingdom, and 42,000,000 copies annually passed through the postoffices. In 1836 the reduction of the stamp duty still further stimulated the growth of the press; and noteworthy development continued after the repeal of the advertisement duty in 1853, and of the compulsory stamp in 1855. The prices were correspondingly reduced, and new newspaper enterprises were abundant in all parts of the kingdom. In 1880 there were 2,076 newspapers and 921 periodicals published in the United Kingdom. Of newspapers, there were fourteen morning and fourteen evening dailies published in London, ninety-three dailies published in the remainder of England, four in Wales, twenty-two in Scotland and eighteen in Ireland. The daily circulation of the London journals was placed in the same year at 710,000, and that of all the daily newspapers in Great Britain at 3,938,938. The aggregate circulation per issue of all the periodical publications of the kingdom was 29,279,204, and the total number of copies annually issued was 2,219,329,322.

III.83.4

—Since the removal of all fiscal restrictions the increase in both the number and the circulation of British newspapers has been much more rapid than the increase in the population. The ratio of increase in Great Britain still remains behind the same ratio in the United States, and the development of the British newspaper press differs from that of the press in the latter country in several particulars.

III.83.5

—The first newspaper in America was Benjamin Harris' "Publick Occurrances Foreign and Domestick," at Boston, Mass. The first and only number was issued Sept. 25, 1690, and it was immediately suppressed by the colonial authorities, as "a pamphlet published contrary to law and containing reflections of a very high nature." April 24, 1704, John Campbell, postmaster at Boston, issued "The Boston News Letter," which was continued weekly, under various auspices, until 1776. The third newspaper, "The Boston Gazette," appeared Dec. 21, 1719. Andrew Bradford issued the "American Weekly Mercury" at Philadelphia, Dec. 22, 1719. James Franklin established the "New England Courant" at Boston, Aug. 17, 1721. His attacks upon the government, the clergy and private individuals, attracted the attention of the general council, which in 1722 forbade Franklin to continue to publish the "Courant," "or any other pamphlet or paper of the like nature, unless it be first supervised by the secretary of this province." The next issue appeared with the name of Benjamin Franklin attached as publisher, the latter being then but sixteen years of age, and an apprentice in the office. For three years the "Courant" eluded supervision by this device. The "Philadelphia Mercury," then the only newspaper in the colonies outside of Boston, commented with severity upon the re-establishment of the censorship in Massachusetts. But only a few years before, the editor of that paper had been summoned before the Pennsylvania governor and council, on account of an article criticising the general assembly, and compelled to make humble apology, receiving at the same time intimation "that he must not presume to publish anything relating to the affairs of this or any other of his majesty's colonies, without the permission of the governor or secretary." The first newspaper published in the colony of New York was the "Gazette," established by William Bradford in 1725. The "New York Weekly Journal," the second periodical in this colony, was established by John Peter Zenger in 1733, avowedly for the purpose of opposing the government in the interests of the popular party led by Rip Van Dam. Zenger's paper may be called the prototype of the American political journal of to-day. Newspapers were established in the remaining American colonies as follows: in Maryland, at Annapolis, 1727; in South Carolina, at Charleston, 1731; in Rhode Island, at Newport, 1731; in Virginia, at Williamsburgh, 1736; in North Carolina, at New Berne, 1755; in Nova Scotia, at Halifax, 1752; in Connecticut, at New Haven, 1755; in New Hampshire, at Portsmouth, 1756; in Georgia, at Savannah, 1763; in Quebec, 1765. By the latter year there had been established in those American colonies which afterward comprised the United States, forty-three newspapers, of which eleven were located in Massachusetts, eight in New York, five in Pennsylvania, four in Connecticut, three in Rhode Island, four in South Carolina, two in Maryland, two in New Hampshire, two in North Carolina, one in Georgia and one in Virginia. At the outbreak of the revolution there were thirty-seven newspapers in existence in the colonies, eight of which were devoted to the cause of the crown. During the seventy-one years since the establishment of Campbell's "News Letter," seventy-eight papers had been started. This excessive mortality, and the limited circulation of the journals which survived, are among the evidences that the influence of the colonial newspaper press was not as important as is generally supposed, in moulding the public sentiment which culminated in the revolution. Much of the political controversy of the period resorted to the tract or pamphlet. The temper of the colonial press during this period was, as a rule, more conservative than that of the people. The journals that were most outspoken in the revolutionary cause, and most influential in advancing it, were the "Boston Gazette," which published the celebrated letters of John Adams, Josiah Quincy, Jr., and others, and the "Massachusetts Spy," published by Isaiah Thomas, who has preserved, in his "History of Printing," the only complete record of journalism in the United States up to the year 1810. During the revolution the number of newspapers did not increase. The precariousness of the business was increased by the scarcity of paper and of printing materials, which the colonists had not learned to manufacture. The British occupation of the cities of Boston, New York and Philadelphia, which were the chief newspaper centres, successively suspended the whig papers in those places. or compelled their publishers to move to interior towns. It has been estimated that the thirty-seven papers of 1775 circulated 1,200,000 copies annually, a weekly average of 23,000 for a population of 2,800,000. Immediately upon the adoption of the federal constitution the newspaper press received an extraordinary stimulus from the organization of political parties and the exciting controversies that followed. The press was engrossed in these controversies, all but a dozen of the 362 journals in existence in 1810 being warmly enlisted in the cause of the federalist or the republican party. Many men of versatility and talent were attached to this partisan press. The personal bitterness and vindictiveness which characterized much of the newspaper controversy of this formative period surpassed anything of the kind now common in the respectable political press of the United States. Among the journals of the period which exerted a wide influence, were the "Columbian Centinel," established in Boston by Benjamin Russell, in 1784, and conducted by him with great ability for forty years; the "New York Minerva," established in 1793, and long ably edited by Noah Webster, the lexicographer; the "New York Evening Post," established in 1801, as a central organ of the federalists; the "Philadelphia Aurora," established in 1790, by Benjamin Franklin Bache, and edited after his death by William Duane; the "Philadelphia National Gazette," established in 1791, by Philip Freneau; and the "Washington National Intelligencer," established in 1800, by Samuel Harrison Smith.

III.83.6

—The newspaper press in the United States has kept even pace with the development of the country. A newspaper was started in Cincinnati in 1793; in Vincennes, Indiana, in 1808; in St. Louis, in the same year; and in Detroit, Michigan, in 1810. The first daily newspaper appeared in Philadelphia in 1784, called the "American Daily Advertiser." This was eighty-two years later than the first daily in London, and seven years later than the first daily regularly established in Paris. The first New York daily paper was established in 1785. All of the twenty-seven daily papers in existence in 1810 were published in the seven cities of New York, Philadelphia, Boston, Baltimore, New Orleans, Charleston, Alexandria, Va., and Georgetown, S. C. The number of daily newspapers published, increased to 138 in 1840; 254 in 1850; 387 in 1860; 574 in 1870; and 968 in 1880. In 1860 the aggregate circulation of the daily newspapers was 1,478,435; in 1870, 2,601,447; and in 1880, 3,637,424, with an aggregate annual issue of 1,135,532,466 in the latter year. The increase in the number of daily newspapers between 1870 and 1880 was 69 per cent., and the increase in their circulation 39 per cent. Several well-defined causes have contributed to this remarkable growth of the daily press in the United States. They are, railroad development, with the corresponding facilities for early distribution to distant points; the telegraph, and the telegraphic collection of news by associated press enterprise, enabling newspapers published at distant points to print the news of commercial and political centres simultaneously with its publication at these points; and the improvement of the printing press, permitting the printing of very large editions of a newspaper in time for immediate distribution. Contemporaneous with the operation of these causes came the successful establishment of the cheap or penny daily press in the large cities of the United States. The first of these papers was the "New York Sun," established in 1833. The capacity of the presses of this paper, at its origin, was 3,000 copies for morning distribution. It now prints and distributes, before daylight, 147,000 copies six days in the week.

III.83.7

—The growth of the American weekly press has been equally noteworthy. By the census of 1880, prepared under the supervision of the writer, it appeared that newspapers were published in 2,072 of the 2,604 counties then existing. Every state east of Missouri and north of the Mason and Dixon line, supported a newspaper in every county. There were 2,380 towns or villages where one newspaper was published; 1,018 in which two were published; 395 with three newspapers; 197 with four; and 324 in which five or more newspapers or periodicals were published, making a total of 4,314 cities, towns and villages in which the 11,403 periodicals of the census year were published. These figures indicate that tendency to localization which is a distinguishing and healthy characteristic of American journalism. Each paper is champion and representative of its particular locality, and this fact makes the American newspaper more and more a necessity, recognized and welcomed as such in every community, and in a constantly increasing number of families. The number of periodical publications of all classes in the United States, and their circulation, at four censuses, is shown in the following table:

Table.  Click to enlarge in new window.

III.83.8

In 1880 there were 2,077,659,675 copies of periodicals and newspapers printed in the United States. Their net earnings were $87,441,132.22, of which 46.21 per cent. was from subscriptions and sales, and 53.79 per cent. from advertisements. There were 54,654 persons employed in manufacture, and 16,489 in the editorial capacity.

III.83.9

—2. We have thus hastily outlined the history of an element in civilization which was unknown and undreamed of two and a half centuries ago, and the influence of which, upon politics, upon society, and upon governments, it is difficult to accurately measure, while well-nigh impossible to overestimate. The truism was discovered at the very dawn of printing, that a free press and an absolute government are incompatible with each other. The history of the newspaper press for two centuries was the iterated demonstration of this fact; and the degree of freedom accorded to the press is everywhere to-day the index of the freedom of the institutions of every nation where the art of printing is practiced. In the infancy of the art it was easy to keep it under complete governmental control and surveillance, and such was the universal practice. The church of Rome naturally originated the press censorship, as a junction essential to the integrity of religion and the proper teaching of the people. Pope Alexander VI. (Borgia) first placed the authority of the church over printed books in definite form in 1501, and in 1515 it was formally decreed by the council of the Lateran that no publications whatever should be issued from any place where the church had jurisdiction, unless such printed work had first obtained the written sanction of the bishop, or of the inquisitor of the diocese. All Catholic countries accepted this censorship, and in all of them it extended gradually, with the growth of political printing, from the ecclesiastical to the civil power. The gradual and varying modifications that have been forced in the degree and character of this governmental regulation of the press, constitute an interesting chapter in the history of every European state. Whatever of freedom the press has gained anywhere, except as the result of revolutions, has been forced piecemeal from unwilling governments; so that the relations of the government to the press differ as widely to-day as the governments themselves differ; and very much in accordance with the differing characteristics of these governments. The history of the press of France has been one of frequent variation between rigid censorship and a complete liberty, leading constantly to license. Soon after the invention of printing, the university of Paris established a tariff for the sale of books, and exercised a general supervision over them, in the interests of both church and state. The censorship passed to the chancellor of the kingdom in 1653. He appointed four royal censors, and without the approval of one of them no writing could be printed or sold, and no dramatic piece produced. With the nominal press freedom which existed in France under the second Napoleon, it is shown in a recent legislative report to the national assembly, that there were 6,000 prosecutions of publishers during his reign. This was equivalent, in its effects upon newspaper utterances in political matters, to the control which the censorship is able to exert. The French press laws under the third republic reserved in the government the right of summary suppression of journals whose utterances are adjudged obnoxious to the public peace and security. In Switzerland the censorship was abolished in 1830, but the laws regulating political expressions in the press are extremely rigid. In Sweden, Norway, The Netherlands, Belgium and Denmark, no censorship now exists; but the civil penalties for the violation of the press laws are very severe, particularly in Denmark. In Spain the constitution of 1837 abolished the press censorship, and offenses against the laws committed in the press were made triable by jury. After the political reaction of 1866 the journals of that country again suffered from constant official prosecution and arbitrary suspension, and they continue still to do so. In Germany the government censorship in the seventeenth century restricted newspapers to official publications in news matters. In 1819 a decree of the bundestag placed the German press under a severe censorship, which greatly checked a growth previously rapid. Many radical journals were suppressed in 1833, and these suppressions continue in the empire at frequent intervals. After the accession of Pope Pius the Ninth in 1846, Italy produced a large number of new journals, chiefly revolutionary, which were discontinued in 1849, when, with the exception of Sardinia, the Italian press was again placed under restraint until 1859-60. The changes of these years conferred an almost complete freedom upon the Italian press, and brought into existence a large number of new political journals. Russia retains to-day as arbitrary a form of the censorship as has ever existed. The newspaper publisher in that country must first obtain permission to print, then lodge 1,500 roubles as caution money, after which he becomes subject to a régime of "admonitions," two of which entail a suspension for the period of two months. Those who can not afford to lodge caution money (which is forfeited in case of a suppression) are compelled to submit to a preventive censorship, by sending their articles to the censors three days in advance of publication. In provincial towns, where there are no censors, journalism is non-existent.

III.83.10

—In England the gradual advance of journalism from legal outlawry to a position of substantial freedom, presents an interesting evolution, identified in all its stages with the development of constitutional government in that country. At the reformation the crown assumed the functions of press censorship previously exercised in England by the church of Rome. In 1637 periodical publications had become so frequent that a general system of censorship was established by decree of the star chamber, which an act of parliament confirmed in 1643. This continued until the civil war and the commonwealth, during which the press was nearly free and unmolested. Cromwell's opinion was well expressed in the remark with which he is said to have ordered the release of Harrington's "Oceana," which had been seized as libelous. "Let him take his book," he said: "if my government is made to stand, it has nothing to fear from paper shot." He conceded liberty of printing, not as a right of the citizen, but in contempt of its influence and effect. One of the first measures under Charles II. was the suppression of the newspapers. In 1660 an order from the council of state stopped the "Mercurius Politicus," and granted to two persons, Muddiman and Giles, authority to publish the news on Mondays and Thursdays. Another act forbade the publication of the proceedings of parliament, which had been a common occurrence in the commonwealth. Subsequently Roger L'Estrange was appointed surveyor of the imprimary and printing presses, and a royal patent granted him "the sole privilege of writing, printing and publishing all narratives, advertisements, mercuries, intelligencers, diurnals, and other books of public intelligence." The "Intelligencer," which appeared under this patent Aug. 31, 1663, set forth in its title that it was published by royal permission, for the satisfaction and information of the public. It was succeeded by the "London Gazette" in 1665, and later by the "Observator." Neither the "Gazette" nor any supplementary broadside published by authority ever contained intelligence that did not accord with the sentiment and plans of the court. On the other hand, the unlicensed press, afraid of political discussion, indulged in immoral and corrupting publications in an unprecedented degree—a consequence which has followed the attempt at government control in many countries. At the revolution of 1688 L'Estrange was dismissed, but the office of licensed printer was not abolished. It is extremely significant of the small importance still popularly attached to the public press as a method of political agitation and reform, that no allusion to the liberty of the press was made in the bill of rights or the act of settlement. The whig government was involved in numerous controversies by the character of political publications which received the license of L'Estrange's successors, and the system of licensing was formally abolished in 1694 by the refusal of parliament to renew the act establishing it. Macaulay declares that this refusal, although scarcely noticed at the time "did more for liberty and for civilization than the great charter or the bill of rights." Regular newspapers began at once to appear, and the healthy growth of the British press dates from this event. The publication of political news was still, however, regarded as illegal. In the reign of Charles II. the judges had pronounced it a misdemeanor at common law to publish political intelligence without the king's license. It was the policy of the whigs to connive at the discreet violation of this rule, and many political journals continued to appear, particularly during the struggle upon the exclusion bill. But the rule remained, and, in addition to it, parliament began to assume and exercise that control over the press which had formally belonged to the censor and the licenser. During the reign of Queen Anne there were numerous acts of great severity against printers and political writers, in most instances acts of purely political persecution. Thus, Steele was expelled for political libels; DeFoe was punished in the pillory for publishing his "Shortest Way with Dissenters"; Tutchin, editor of a paper, by order of the house was whipped by the hangman; Wellman, editor of the "Mercurius Rusticus," Dyer, editor of the "News Letter," and Fogg, proprietor of "Mist's Journal," were compelled on their knees to express contrition to the commons. Tracts, books, and newspapers were frequently ordered publicly burned by the hangman. The house of commons claimed for itself collectively, and for each of its members in his parliamentary capacity, complete exemption from criticism in the press. It resolved, "that to print or publish any books or libels reflecting upon the proceedings of the house of commons, or any member thereof, for or relating to his service therein, is a high violation of the rights and privileges of the house." In the meanwhile the first daily newspaper had appeared; every large provincial town had its weekly; newspaper reading was increasing; and the power of the press as a new political factor was necessarily recognized in official quarters. This rapid development continued, though greatly checked, notwithstanding the fact that in 1812 the tory ministers of Queen Anne, finding that the whig press, by its ability and force of invective, was undermining their influence in the nation, had, with a view to its repression, imposed a stamp duty of one half-penny on every newspaper or pamphlet containing half a sheet or less, the tax rising to one penny on a whole sheet. At the same time a tax of one shilling on every advertisement, and also a duty on paper and foreign books, were imposed. These taxes were the first affirmative action of parliament negativing the common law doctrine that a political newspaper had no right to exist. It is notorious that this recognition was accorded only as a method of more effective restraint. It is remarkable, in view of their origin, that these taxes upon knowledge should have continued to exist in England, with various modifications, for nearly a century and a half. By gradual steps the stamp duty on newspapers rose until it had increased to four pence in the reign of George III. After the passage of the reform act the demand for cheap newspapers became so great that unstamped and illegal publications abounded. The government of Lord Melbourne, finding it impossible to suppress them by fines and imprisonment, reduced the duty to one penny in 1836; the paper tax was reduced; and the duty on advertisements, which had risen to the enormous sum of three shillings and six pence for each advertisement in Great Britain, and two shillings and six pence in Ireland, was reduced to one shilling and six pence in England. and to one shilling in Ireland. Several government prosecutions against the publishers of unstamped newspapers had previously failed with juries. The effect of these taxes upon the circulation of English newspapers can be judged from the fact that at the time of this reduction the periodical press of the United States had already passed that of Great Britain in number, while its aggregate annual circulation was nearly double that of the British press, although the population of the United States, by the census of 1830, was only half that of Great Britain in the same year. About 1850 there occurred in Great Britain a widely organized movement for the release of the press from these fiscal restrictions, which resulted, in 1853, in the repeal of the duty on advertisements, and, two years later, in the abolition of the penny stamp on newspapers. The duty on paper remained unrepealed until 1861. The circulation of newspapers increased, as a result of the repeal, according to Edward Baines, from 38,648,314 copies annually in 1831, to 546,059,400 annually in 1861, with an accompanying increase in population of but 30 per cent.

III.83.11

—One of the longest and most exciting contests for the enlargement of the privileges of the press, had relation to the publication of parliamentary debates. From the restoration to 1729, newspaper reports of the parliamentary proceedings were unknown. In that year fragmentary reports of opposition speeches gave rise to a ministerial protest against this violation of the privileges of the house and of the lords. Sir Robert Walpole urged that if parliamentary proceedings were to be reported at all, they ought to be reported fully and openly. The custom of the press was to print fragments of parliamentary speeches as though they were imaginary, designating their authors by initials or nicknames. The commons resolved that all reporting was a breach of privilege, on the singular ground that it tended to make members of parliament answerable to their constituencies instead of to their own consciences; and this remains the parliamentary theory to this day. One of the standing orders still forbids any newspaper to publish a report of anything said or done within the halls of parliament. For breaches of this privilege numbers of printers, some of them at every session for years, were fined £100. Reports continued to be printed, however, at great personal risks, and with numerous punishments. In 1764 Mores, editor of the "Evening Post," paid a fine of £100 for mentioning the name of Lord Hereford in his paper. In 1771 the contest was finally abandoned, after a memorable struggle, which began over the arrest of two printers for publishing the debates, involved the arrest and imprisonment of the Lord Mayor of London and another city magistrate, and aroused popular excitement almost to the verge of revolution. The agitations which had preceded this triumph of the press, in which the celebrated John Wilkes, editor of the "North Briton," was the central figure, had done more than aught else to identify the liberty of the press with the liberty of the people in the popular mind, and to restrain the governmental control of printing. In the famous No. 45 of the "North Briton," dated April 23, 1763, Wilkes attacked with great bitterness the king's speech closing parliament, pronouncing it "the most abandoned instance of ministerial effrontery ever attempted to be imposed upon mankind." The ministry preferred to regard this and similar expressions as direct attacks upon the personal veracity of the sovereign. Although Wilkes was then the member from Aylesbury, and therefore protected by the vague and formidable panoply of parliamentary privilege, he was proceeded against by the direct orders of the king. The secretary of state, Lord Halifax, issued a general warrant directing the arrest of "the authors, printers and publishers" of the "North Briton," and the seizure of the incriminated numbers. Wilkes resisted arrest, but was seized, and confined in the tower. He was released upon a writ of habeas corpus, Chief Justice Pratt declaring that "warrants to search for, seize and carry away" papers on a charge of libel were contrary to law. The arrest was also declared illegal on the ground that parliamentary privilege protected the person of a member in all cases save treason, felony and actual breach of the peace, and that a libel, though it might tend to produce the latter offense, could not be regarded as itself a breach of the peace. From this signal triumph in the courts, Wilkes passed to the more arbitrary tribunal of parliament, where his privileges were in vain interposed to prevent summary expulsion. The case of Wilkes was one of many which made the reign of George III. a continued crusade against the newspapers, carried on with such vindictive determination that the English press may trace the larger part of its present privileges to the reaction which resulted. In the year 1764 no less than 200 informations were filed against printers in behalf of the crown. In the whole thirty-three years of the preceding reign, there had not been so many press prosecutions. Hitherto, when the author of a libel was known, he alone was prosecuted for it. The custom was now introduced of involving the printers also in the prosecution. Quite naturally the political discussions in the press grew more virulent then ever, while the popular conviction that the judges were illegally endeavoring in press cases to restrain the freedom of discussion, tended to make London juries exceedingly tender of incriminated printers. In 1769 the letters of "Junius" began to appear. No previous writer in the English press had assailed the government and its members, the parliament, and even the king himself, with the freedom, the force, the daring vindictiveness, that marked the series of letters in Woodfall's "Public Advertiser," written by this unknown, unscrupulous and unprecedented critic. For nearly a year the letters and libels of "Junius" continued without notice from the authorities. When the letter to the king appeared, in which the latter was accused of cowardice, the attorney general prosecuted Woodfall, who had published it, and Almon and Miller, who had reprinted it. In the case of Woodfall, the chief offender, Lord Mansfield clearly aid down the doctrine that the libelous character of the article complained of was a question for the judge, and not for the jury. The jury responded with a special and irregular verdict of "guilty of printing and publishing only." This verdict was set aside, and a new trial ordered. In the meanwhile, Miller had been tried and acquitted by the jury, amid unmistakable demonstrations of popular approval. In the existing temper of London juries, the retrial of Woodfall promised only discomfiture to the government, and the case was abandoned. Thereafter, in the words of Lucky, the historian, "the torrent of libel flowed on unchecked and unrestrained."

III.83.12

—But the legal rights and position of English newspapers continued a danger to publishers and a perplexity to judges and juries. The doctrine of libel laid down by Mansfield in the Woodfall case, was that of a long succession of eminent judges. The first traces of it are found in the decisions of Coke, and it may be called the natural outgrowth of the censorship and licensing systems, with which it is contemporaneous. It had its origin in times when the very act of printing was regarded as illegitimate, and an encroachment upon the prerogatives of the sovereign. The parliament fortified the judges in this view of the case. The action of the commons in excepting libels from the list of offenses that were covered by parliamentary privilege, shows the prevailing judgment at a period when the periodical press was becoming a recognized and important element in the current civilization. The desire to withdraw press cases from the cognizance and control of juries was as strong with parliament as with the crown and its agents. By the old method of ex-officio informations, the attorney general was able to send offending publishers to trial without the previous assent of grand juries; and when the trials took place, the judges enforced a doctrine of libel that almost transferred the decision from the juries to themselves. This law of libel was accepted by Holt, one of the greatest and most constitutional of English judges. Under George II. the question of its soundness had been raised, in the prosecutions of "The Craftsman." Lord Mansfield himself declared that for fourteen years he had uniformly laid down this doctrine without encountering question, and with the unanimous concurrence of associate judges. To amend or determine this law of libel, so as to bring the question of motive and of intention within the jurisdiction of juries, became, during the reign of George III., one of the great objects of the whig party, which was stimulated to agitate the question by the popular interest in it growing out of repeated prosecutions regarded as arbitrary. The enacting bill of Dowdeswell appears to have been chiefly the work of Burke; it was introduced and defeated in 1770. But the great authority in support of the popular view of the libel law, was Lord Camden, chief justice of the common pleas, who strenuously maintained throughout his public career that the decision of the whole case. in libel suits, belonged to the jury. He lived to see his view vindicated in 1792,and that, not by an enacting law, but by the declaratory act of Mr. Fox, entitled "An act to remove doubts respecting the functions of juries in cases of libel." This act asserted that Lord Camden's view of the libel law had always been the correct one. The real freedom of the English newspaper press dates from its passage, 100 years after the abolition of the censorship. Previous to this declaratory act the theory of the English law, and, so far as juries would permit, its practice, was as laid down by Holt in the case of Tutchin, that to possess the people with an evil opinion of the government, that is, of the ministry, is a libel. A practical illustration of the meaning of the law was given as late as 1792, in the case of Sampson Perry, editor of the "Argus," who was tried and convicted of libel for saying in his paper that "the house of commons are not the real representatives of the people." This law rested upon the logic that there can be no reflection upon those who are in office under the king, without casting the like reflection upon the king, who employs them. Hence the deduction, that such a reflection was none the less a libel because it was true; and hence the final deduction, that the greater the truth the greater the libel. In the system of government which had been growing up in England this theory resulted in a legal bar to freedom of political discussion, because it was in effect a bar to the discussion of the acts, motives and general conduct of the parliamentary majority sustaining a king's ministry, and thus it practically barred any political discussion what-soever by the newspaper press. The law of libel, up to the passage of this declaratory act, was merely a protection of the kingly prerogative, defended on that ground alone, and maintained by English jurists of high repute, long years after these prerogatives of the king which the libel law was framed to guard, had ceased to be regarded as a part of the English constitution. Lord Campbell's commentary upon the act of 1792 wholly sustains this view of the libel law made obsolete by that act. "Now that the mist of prejudice has cleared away," he says in his "Lives of the Chancellors" (vol. vii., p. 47), "I believe that English lawyers almost unanimously think that Lord Camden's view of the question was correct on strict legal principles; and that the act was properly made to declare the right of the jury to determine upon the character of the alleged libel, instead of enacting it as an innovation."

III.83.13

—At the common law it remains an indictable offense to publish anything against the constitution of the country, or the established system of government. It was after the act of 1792 that Thomas Paine was indicted and found guilty of the publication of "The Rights of Man," notwithstanding the unsurpassed plea of Erakine for the liberty of the press, in his defense. Numerous similar prosecutions occurred during the French revolution and at later periods. If such governmental prosecutions of the press have practically ceased in Great Britain, it is not because the power to enforce them is not dormant in the common law. Desuetude, however, may be held to have abrogated the law. It remains an offense punishable by fine and imprisonment at common law to publish any attack upon the Christian religion. However inoffensive in language and purpose such an attack may be, it still remains, according to Mr. Justice Stephen, a blasphemous libel, notwithstanding the fact that the government of Great Britain long since ceased to hold that the dissentient from the creed of the established church is an enemy of the state and of religion. The modification of public opinion on this subject, running in parallel grooves with the changes that have taken place in the law of newspaper libel, is indicated by the proposition introduced by the government in 1881, as a part of the criminal code, which, when adopted, will remove this anomaly from British law. "No one is guilty of blasphemous libel," says this proposition, "for expressing in good faith and decent language, or attempting to establish by arguments used in good faith and conveyed in decent language, any opinion whatever upon any religious subject." This clause, when adopted, will convey no protection to men like the publisher of the "Free Thinker," who was convicted in 1883 of blasphemous libel, and sentenced to one year's imprisonment, for the publication of a paper outrageously caricaturing the Saviour. Similar prosecutions are now unknown in the United States.

III.83.14

—Turning now to the relations of the government to the press in the United States, we find a different history, a fact largely due to the circumstance that the emancipation of the newspaper from government surveillance was practically effected in England before the American press had become a powerful element in the social and political life of this country. We have seen, however, that, in all the British-American colonies where the press appeared in the seventeenth century, the attempt was uniformly made to introduce the British system of rigid censorship. The general court of Massachusetts colony appointed two persons, in 1662, licensers of the press, and prohibited the publication of any books which should not be supervised by them. There was never under the jurisdiction of the star chamber, a more inquisitorial and intolerant censorship of the printing press than existed in this colony down to about 1725. This censorship put sudden end to the first journalistic enterprise in America; it imprisoned the printer, Fowle, on suspicion, reprimanded and imprisoned the plucky Franklin, and sought without success to supervise his newspaper. Even the laws were not at first published for general circulation. The magistrates of Massachusetts, when compelled by popular demand to permit the publication of the general laws in 1649, did so under protest, alleging it "a hazardous experiment." There were numerous instances of the public burning of books, as offenders against public order. This was the fate of Eliot's volume in defense of unmixed principles of popular freedom, and Calef's book against Cotton Mather. The first printer in Virginia was summoned before Lord Culpepper in 1681, and compelled to enter into bonds "not to print anything hereafter until the king's pleasure shall be known." His offense had been the publication of the laws of a session of the assembly. In 1683, when Lord Effingham followed as governor of Virginia, he brought with him instructions from the ministry "to allow no person to use a printing press on any occasion whatever." From that date until 1729 no printing was allowed in Virginia; and from 1729 until ten years before the revolution, Virginia had but one printing press, and even that was known to be "too much under the control of the governor." But Virginia was not an exception as an illustration of the policy of the British government toward the colonial press. Down to the advent of revolutionary times the royal instructions to the governors of all the colonies continued to contain the clause invented in the time of the Stuarts and reading thus: "And forasmuch as great inconvenience may arise by the liberty of printing within our province, you are to provide by all necessary orders that no person keep any press for printing, nor that any pamphlet, book, or other matters whatsoever be printed without your special leave and license first obtained."

III.83.15

—In the colony of Pennsylvania the predominating Quaker element showed the same intolerance of the printing press that distinguished the Puritans in New England. William Bradford, the first printer in the colony, was also the first man anywhere on the continent to maintain its freedom against arbitrary power. In 1689 a schism occurred between the governor and the people, in the course of which Bradford was induced to print the charter. Anticipating trouble, he did not put his name as printer upon the title page. He was immediately summoned before the governor and council, with a view to fixing upon him, by his own admission, the responsibility for the illegal act. Refusing to accuse himself, and denying the existence of an imprimatur, the governor informed him that he was imprimatur, that Penn 'had given "particular order for the suppressing of printing in his province;" and he was put under a bond of £500 to print nothing "save what the governor did allow of." Again, in 1792, during a quarrel between factions of the quakers, Bradford printed a tract, without his name attached, presenting the arguments of the faction out of power. He was arrested, and the sheriff, searching his office, took possession of his tools, types, and the form from which the obnoxious pamphlet had been printed. After a long confinement, Bradford's trial took place before two Quaker judges. Bradford conducted the defense in person, and managed it, says the contemporary account of David Paul Brown, "with a fearlessness, force, acuteness and skill which speak very highly for his intelligence and accurate conception of legal principles." Bradford insisted, in defense, that the jury should be permitted to be judges both as to the fact that he was the printer, and of the character of the publication, whether or not it was seditious, as alleged. Although the judges overruled this claim, it is worthy of attention, in the words of Bradford's biographer, John William Wallace, that "the father of the press in the middle colonies asserted in 1692, with a precision not since surpassed, a principle in the law of libel hardly then conceived anywhere, but which now protects every publication in much of our Union; a principle which English judges, after the struggles of the great whig chief justice and chancellor, Lord Camden, through his whole career, and of the brilliant declaimer, Mr. Erskine, were unable to reach; and which at a later day became finally established in England only by the enactment of Mr. Fox's libel bill in parliament itself." Gulian C. Verplanck has traced the origin of Mr. Fox's bill of 1792 directly to Bradford's position and efforts in this trial. The jury in the case failed to agree, and Bradford was returned to jail for trial at the next session of the court. In the meanwhile, Gov. Fletcher, of the colony of New York, being also governor of Pennsylvania, secured his release, and induced him to migrate to New York, where there was as yet no printing press. The assembly of the latter colony had voted in 1693 to allow the sum of £40 per annum to any printer who "will come and settle in the city of New York for the printing of out acts of assembly and publick papers," and "to have the benefit of his printing besides what serves the publick."

III.83.16

—Arriving in New York, Bradford was at once appointed royal printer. This office of printer to the crown, which Bradford held under William and Mary, Queen Anne, George I. and George II., first appears in his case. The next successful assertion of the liberty of the press in America occurred in the colony of New York in 1735, in the famous trial of John Peter Zenger, editor and publisher of the "New York Journal," the organ of the popular party, and opposed to the administration of Gov. Cosby, which found a warm newspaper supporter in Bradford's paper. The columns of Zenger's "Journal" were filled with sharp gibes, satires and criticisms upon the government, in both prose and verse, undoubtedly libelous. and ultimately so annoying that he was arrested upon an information laid by the attorney general. The papers containing the "false, scandalous and seditious libels" complained of were ordered burned by the common hangman in the presence of the mayor and magistrates of the city, and Zenger lay nine months in prison before he could secure a trial. At the trial the judges refused to admit evidence intended to show the truth of the libels, following the principle of law which had then recently been reaffirmed in England, in the case of Franklin for the publication of a libel in the "Craftsman." The defense was made by Andrew Hamilton, of Philadelphia, in a speech which is now classic as a vindication of the liberty of the press. Hamilton asserted the right of the jury to judge of the law and the facts, and in defiance of the peremptory charge of the court, a verdict of "not guilty" was returned. Remarkable demonstrations of popular approval greeted the verdict. Great importance is attached by historians to the influence of this trial upon the political destinies of America. Gouverneur Morris hailed it as "the dawn of that liberty which afterward revolutionized America." It was the last serious attempt made by the royal authorities to control the press of the colonies. Bancroft declares, that, in spite of the censorship which had existed and continued to be claimed, "the press in America was generally as free as in any part of the world."

III.83.17

—In every colony, the breaking loose from England appears to have been accepted as abrogating inherited laws and customs which involved either censorship or the governmental scrutiny of the political utterances of the book or periodical press. As colony after colony organized state governments, the freedom of the press, under the restrictions which still obtain for the regulation and restraint of its utterances with respect to individuals, was recognized in the constitutions as a cardinal feature of free institutions. The bill of rights accompanying the constitution of Virginia (1776) declared "that the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments." The first constitution of Vermont (1777) declared that "The people have a right to freedom of speech and of printing and publishing their sentiments concerning the transactions of government, and therefore the freedom of the press ought not to be restrained." Similar declarations were made either in the constitutions or the bills of rights of New Hampshire, Massachusetts, Pennsylvania, North and South Carolina, Georgia and Maryland. In the subsequent modifications of the state constitutions, not one of the thirty-eight states has omitted a clause guaranteeing freedom of speech and of the press. These provisions vary in their explicitness, some of them including definitions and restrictions which in other states have been embodied in the statutory or common law. The most common form is that incorporated in the constitution of New York by the convention of 1821, as follows: "Every citizen may freely write, speak and publish his sentiments on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain the liberty of speech or of the press. In all prosecutions or indictments for libels, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted, and the jury shall have the right to determine the law and the fact." Several of the states, as Pennsylvania, Delaware and South Carolina, especially protect newspaper criticism upon public officers, the constitution of Pennsylvania reading as follows: "That the printing press shall be free to every one 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 inviolable rights of man, and every citizen may freely write and print on any subject, being responsible for the abuse of that liberty. In the prosecutions for publication of papers investigating the official conduct of officers or men of 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 courts, as in other cases;" and to this was added, in the amended constitution of 1873, an important modification of phraseology, as follows: "No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury." It is clear that these provisions were inserted in the organic law of the states for the purpose of uprooting that doctrine of the English common law with which they are at variance, and which was not reversed in the mother country by Mr. Fox's libel bill until 1792. But in most of the states there ensued a protracted struggle, before the states there ensued a protracted struggle, before the courts were driven to surrender the privilege, borrowed from the common law of England, of passing upon the question of the libelous character of a publication, leaving to the jury only the determination of the fact of publication. The press, as an agency in the determination of political questions, was still deprecated by public men. The constitutional convention of 1787 sat with closed doors, and the injunction of secrecy upon its members was never formally removed. The federal senate for a time followed this example, and the first open debate was had in 1793 on the occasion of the controversy over the right of Mr. Gallatin to a seat in that body. This broke the spell of deliberations in secret conclave, and it is noteworthy that the secret executive session which is still retained is a remnant of the custom thereafter abandoned with respect to legislative business The federal constitution, as originally framed, contained no provision touching the freedom of the press, the proposition of Charles Pinckney, of South Carolina, that "the legislature of the United States shall pass no law touching or abridging the liberty of the press," having been ignored by the body which framed the instrument. The omission was remedied by the first congress, which by way of amendment resolved that "congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances." The law of political libel in the United States may be said to have originated with the enactment of the sedition law, July 14, 1798. It was enacted while the federal government was yet new and untried, and many men feared that the breath of the heated party discussions which then absorbed the periodical press, might tumble the fabric about their heads. It is an historical fact that the men chiefly instrumental in giving its turn and tone to the American journalism of the period were of alien birth and without republican training. Among them were William Cobbett, James Thompson Callender, William Duane, Joseph Gales, and some twenty others, all of whom were attached to newspapers opposed to the administration of Adams and the federal party, and were conspicuous for the violence of their journalistic warfare. The sedition law had a direct tendency to produce the state of things it was passed to suppress. Its constitutionality was denied by the party opposed to the administration, and may well be questioned today, notwithstanding the fact, that in several of the numerous trials which took place under it, this objection was decided in favor of the law; and inasmuch as it expired by its own limitation and was never repealed, the decisions in favor of its constitutionality may be said to have raised the presumption of such a right in congress with respect to the press of the several states. The unpopularity of the sedition act made it largely influential among the causes of the final overthrow of the federalists; and, in the words of Judge Cooley, "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." Out of the bitter feelings excited by this act grew many retaliatory political libel suits in the state courts, the most important of which was that of the People vs. Croswell, in the supreme court of New York, Feb. 13, 1804. It was an indictment against Croswell for an alleged libel upon Jefferson, then president; and Chief Justice Morgan Lewis, who tried the case, rejected Croswell's ofter to prove the truth of the charges in the libel, charging the jury that the question of libel or no libel was a question of law, a legal inference from the facts; that if the jury were satisfied that the defendant published the matter complained of, they ought to find him guilty; that the intent of the publisher, and whether the publication in question was libelous or not were to be decided exclusively by the court. Therefore it was not his duty to give any opinion to the jury upon those points. He cited the opinion of Lord Mansfield in the case of the Dean of St. Asaph, and declared that to be the law in the State of New York. The case was made famous, on appeal, by the strenuous effort to lift this judge-made common law of England from the jurisprudence of New York. Alexander Hamilton made the last, and in some respects the most brilliant, oratorical effort of his life, in denunciation of the assumption of the court, as grossly inconsistent with the genius of American institutions in relation to political publications. The court was evenly divided, and the opinion of the chief justice still stood as the law. It was on this occasion that Judge Kent, adopting the language of Alexander Hamilton, crystallized in a single sentence the doctrine of libel which is now accepted in all the states, so far as relates to political publications: "Nothing is a libel which is written and published from good motives and for justifiable ends; and to show this, the truth of the facts charged as libelous may be given in evidence and this, whether against public measures, public officers or private citizens." The decision in the Croswell case led to the passage of a declaratory act, by the legislature of New York, requiring the judges to permit the truth to be given in evidence in all libel cases. Political press prosecutions, instituted by the government authorities, have since ceased altogether in the United States. That the federal government retains a latent control over the press is, however. the conclusion to be drawn from the action of that government during the late civil war, first, in excluding from the mails newspapers charged with treasonable utterances, and again, in the temporary suppression of various New York journals, and particularly the "World," for the publication of a forged proclamation of President Lincoln. The right of the government to tax newspapers was also asserted during the same war, by the internal revenue tax upon advertisements, which yielded in the years 1863-7, a total income of $980,089.

III.83.18

—Thus, in England and the United States, which countries exhibit the most complete development of the liberty of the press, as well as the most astonishing growth of the press, the relations of the government and the newspaper have undergone a gradual reversal. "No sooner had the press been emancipated from government censorship, "says Macaulay "than the government itself fell under the censorship of the press." "The people of Great Britain," said Mr. Danvers, as early as 1737, "are governed by a power that never was heard of as a supreme authority in any age or country before. It is the government of the press." It is true, as declared by Lecky, in consequence of the liberty of political discussion legalized by the act of 1792, that "Nowhere else in free governments [the United States excepted] do we find so large an amount of power divorced from responsibility." But it is not true, as was predicted by Lord Thurlow and five peers who joined in his protest against the Fox bill, that the emancipation of the British press has resulted in "the confusion and destruction of the law of England." On the contrary, the century of a free press in England has been conspicuous as her most law-abiding and intelligently progressive and reformatory century. It is not strictly true that the power of the press, resulting from its facilities for appealing directly to the popular passion or impulse, is an irresponsible power. The English common law still retains a hold upon the periodical press sufficient to restrain its freedom from developing into license. Hallam declares that the liberty of the English press consists merely in exemption from the licenser. De Lolme expresses the same view, as does also Blackstone, and it has been followed by American commentators of standard authority as embodying correctly the idea incorporated in the constitutional law of the United States by the provisions of the American bills of rights. (See Story on the Constitution, p. 1889; 2 Kent, 17 et seq.; Rawle on the Constitution, chap. 10.) This view of the law largely reduces the element of irresponsibility. The accountability of every newspaper is not only to the law but to its constituency. The value of its property depends wholly upon the favor of that constituency, and this favor must be retained by the steadfast pursuit of a general policy which commands some measure of popular approval. The multiplicity of newspapers still further reduces the dangers dreaded by Lord Thurlow. No one journal, nor any junta of journals, can control or regulate public opinion in given directions. There are journals enough, in both England and the United States, to advocate all sides of each recurring public question; and the sum of the controversial discussion of it is the enlightenment of public opinion to the true policy. Thus one newspaper neutralizes another, so far as to check an undue and irresponsible influencing of popular sentiment. It is a demonstrated fact in the history of the journalism of both countries, that the establishment of a newspaper devoted to the fortunes of the political party, in a particular town, is followed almost immediately by the establishment of a paper of the opposite political faith; and, as a rule, the town that can support one such party paper can supply nutriment enough for the other. It is thus the fact, due wholly to the development of journalism, that every public question is presented to the people from both points of view. The consequence is, that so far as the government is controlled by the people, the only effect of the press upon that people is to facilitate an enlightened judgment, by which the element of irresponsibility is reduced to the minimum. This remains the case, even though the temper of the press, in its discussions, may be, as it so frequently is, a bitterly partisan and prejudiced temper.

III.83.19

—An even more important consideration, in estimating the effects of a free and untrammeled press upon the government of a nation, is the immeasurable increase of personal responsibility which its existence introduces and compels in the government itself. In the universal publicity which the existence of a free press necessitates, in all the acts and motives of the men intrusted with the power of the government, lies the surest attainable guarantee against the abuse of that power. It is this fact which Macaulay had in mind, when he insisted that the history of the English constitution from the seventeenth century may be compressed into the record of the struggles of the English press for its liberty. That history is identified at every stage with some phase of the popular demand for the enlargement of the rights of the individual citizen. The original denial of free and unlicensed printing was based upon the necessity, in a government by prerogative, of shutting out all inquiry as to the character and conduct of men in office, all investigation of errors or abuses in the laws or government of a nation. The whole tendency and effect of the old law of political libel—the common law which made it indictable to publish anything against the constitution of the country or its established system of government—was to deprive the people of the means of information as to the extent of their own rights and privileges, and the infringements made upon them by the mistakes or the misconduct of their rulers. All modern arbitrary governments have recognized the necessity of some method of intercommunication between the government and the people, by the publication of royal gazettes or official organs, in which is inserted no information save such as they deem it desirable, in their own interests, that the people should possess. The free press, wherever it has forced its way, has substituted for an irresponsible government by the prerogative, a government which must do its deeds in the light of day, and in the face of unintimidated criticism, and stand or fall by the verdict intelligently rendered. Except on rare occasions of great popular excitement, where the press does mischief by inflaming the passions of the hour, it is difficult to discover consequences of its freedom in political discussion which are not to the general advantage of the state. Reflecting and organizing public opinion, adding immensely to the facilities for co-operation, diffusing popular arguments with unparalleled rapidity over immense areas, repeating them day after day until they become familiar to all classes, watching with a sleepless vigilance for the slightest encroachments of power, and for the evidences of official dereliction, the periodical press has strengthened immeasurably the spirit and resources of liberty, and has made chimerical dangers which once seemed imminent. This is the general verdict of historians, one of the latest of whom, Mr. Lecky, declares: "The growth of the press as a great power in English politics is perhaps the most momentous of all the events of the eighteenth century. It is not too much to say that it has modified the political life as profoundly as steam in the present century has altered the economical condition of England. Of all the instruments human wisdom has devised, a free press is the most efficacious in putting an end to jobs, abuses, political malversation and corruption. It is difficult to over-estimate its services as a means for the political education of the masses. Few persons will deny, that, in England at least, they outweigh the evils which the abuses of the press have produced. Whether they do so everywhere is less certain, and the magnitude of those evils is usually underrated by those who judge exclusively from English experience." The United States is certainly not the country to which this exception applies. Here, more than in England or elsewhere, where the whole fabric of the government is committed to the frequent arbitrament of universal suffrage, the importance of means for the wide and unrestricted diffusion of political intelligence, is beyond calculation, as has been many times demonstrated. At the same time it is proper to admit that the evils attending the political liberty of the press are greater here than elsewhere, and are serious enough to justify the profound apprehension they have excited in many quarters. But they are evils which are becoming less alarming as the press of the country grows in resources, in independence, in character and in influence. With this growth it becomes less dependent upon political connections, and therefore less virulent in its partisanship, less under the control of designing and ambitious men, less addicted to sensationalism, less liable to pander to the passions of the hour and the depraved tastes of the ignorant. In a country where the establishment of a newspaper is such a common and easy affair, it is to be expected that some newspapers will always exist whose conduct is not regulated by that scrupulous regard for private rights and the public well-being which has long distinguished the better class of American journals, and is developed to an admirable degree in the press of England. The nature of our political institutions and the fierceness of our party politics have always developed a greater freedom of personal reference, accompanied by a bitterness and vindictiveness of criticism, than is seen elsewhere. Of this, however, it is safe to say, that there is much less than existed in the early history of American newspapers, while the vulgar intrusion into private affairs, merely for the gratification of a prurient public taste for scandal, has long been confined to publications of no recognized standing in the community.

III.83.20

—3. It remains to consider the relations of the newspaper press to individuals. The law of newspaper libel, as it exists in England and the United States today, is an outgrowth of the governmental censorship of the press, and it retains many features which had their origin in the principle that the press was an interloper., without any well-defined rights, such as inhere in other lines of business or professional occupation. It may be doubted if the newspaper, as such, has ever influenced the current of the common law in any particular important to the protection of newspaper publishers. In pointing out this fact, Judge Cooley says: "The railway has become the successor of the king's highway, and the plastic rules of the common law have accommodated themselves to the new condition of things; but the changes accomplished by the public press seem to have passed unnoticed in the law, and, save only where modifications have been made by statute or constitution, the publisher of the daily paper occupies to-day the same position in the courts that the village gossip and retailer of scandal occupied 200 years ago, with no more privilege, and no more protection." In the meanwhile, the newspaper press has become one of the chief necessities of our alert and commercial civilization. It bears its official relations to the government, national, state and local, and it comes nearer to the popular eye and heart than any other agency for influencing public opinion. In the main it recognizes the importance of these relations which have grown up between it and the communities it serves, and discharges the functions assigned it, with a dignity, sagacity, intelligence and enterprise not surpassed by laborers in any other field. But as the law of libel now stands, it is impossible to publish an allusion to an individual, in a record of events to which privilege is not extended, the inference from which is derogatory to that individual, which will not be construed as a technical libel in the courts of all the states, thus giving the complainant a standing in court, and placing upon the publisher the onus of proving the truth of his publication not only, but the absence of malicious or unworthy motive in making the publication. In criminal prosecutions for libel, under the old law, the truth was not in itself a sufficient excuse, the basis of the prosecution being that the libel was calculated to disturb the public peace, a liability assumed to be all the greater if the injurious charge was true. In civil suits to recover damages for libel, the truth, when pleaded and established, is now generally regarded as a complete defense, where it can also be shown that the publication was made from good motives and for justifiable ends. On the other hand, the burden of the decisions is, that malice is presumptive in publications the truth of which can not be established. The libel being false, the malice imputable from the act of publication is a part of the res gestœ from which the action arises. And this holds, whether the falsehood was the result of an inadvertence, error or mistake, or whether it originated with a reporter, a distant correspondent, or even when copied from another newspaper, with due acknowledgment of the source. These are some of the rulings which have made the law of libel particularly severe upon newspaper publishers. But it is the fact that the general disposition of juries is, in such cases, where the malice is a legal fiction, and not an actual fact, to deal leniently with the defendants. Verdicts of six cents damages are of common occurrence. The significance of these verdicts is, that while the publisher has been guilty of a technical libel, his guilt was done in innocence, and the plaintiff is therefore not entitled to smart money. The present condition of the libel law undoubtedly encourages suits which are in the nature of blackmail or persecution; but the reputable press rarely suffers from these suits beyond the annoyance and expense of preparing for trial. Enough has been said to show that it is strictly true that no issue of the daily newspaper of the day can be free from a greater or less number of libels per se, that is to say, actionable publications, and still publish the current news of the day. The impossibility of avoiding that class of publications has had a tendency to make the press more careless than it ought to be, in the use of language and the form of assertion, and has made the public more lenient in its judgment of these daily violations of propriety. Some of the more noteworthy instances of the character of publications that have been held libelous, and of the circumstances under which the responsibility rests upon the publisher, may be given. It is no justification or excuse for a libel that the publisher of a newspaper does not personally know the person libeled; or that he did not personally know of the libel inserted in his paper previous to its publication. In a civil suit for libel the truth can not be given in evidence as a defense, unless under a special plea or notice of justification, "framed with the same degree of certainty and precision as is necessary in an indictment for the crime imputed." The justification must be as broad as the charge. It is not a justification of publishing rumors against a plaintiff, to prove that such rumors existed. Proving the truth of one out of several charges is not a justification. Each charge must be substantiated precisely as made. The publisher of an article is equally liable with the author, and an action may lie against either or both. It is no justification for libel, to give the authority for the statement. Where there is an ambiguity in an alleged libel, it is for the jury to determine whether the words were used of plaintiff, and in what sense they were used. A publication is not a libel, unless it reflects upon some particular person, who need not be named, but must be plainly pointed at. Business corporations may maintain actions for libel, the same as individuals, for words affecting their business or property, by alleging special damages. An imputation contained in the form of a question, e.g., "Is H. the man who broke jail?" may be libelous. Criticisms upon works of art or literary productions are allowable, but they must be fair and temperate, and the author himself must not be criticised under cover of a criticism of his works, nor must it be assumed that because he seeks the favor of the public for his productions, he thereby makes his private character and conduct public property. This rule was established in the celebrated suits of Cooper-the novelist. Publications which reflect upon the skill of professional men, whose business depends upon their reputation, entitle plaintiff to recover without proof of special damages. Vague charges against the character of public officers are libelous. Where a charge of corruption is made against any officer, it can only be sustained by proof of a specific act of corruption on the part of plaintiff. It is no justification to set up that certain honest men believe the allegation to be true. Such language regarding a member of congress, as "he is a fawning sycophant, a misrepresentative in congress, and a groveling office-seeker," has been held libelous. To charge a candidate for office with seeking that office from motives of private gain, is a libel. In a word, while the law justifies free criticism upon public officers and candidates for public office, the newspaper indulging them must be as careful in the use of words, and as specific in its proofs, in an attempt to justify, as though the individual libeled were a private citizen, Chief Justice Parsons, of Massachusetts, stated the case in this wise: "When a man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his character in issue, so far as it may respect his fitness and qualifications for the office. Publications of the truth on this subject, with the honest intention of informing the people, are not a libel. For it would be unreasonable to conclude that the publication of truths, which it is for the interest of the public to know, should be an offense against their laws. * * For the same reason the publication of falsehood and calumny against public officers is an offense most dangerous to the people, and deserves punishment; because the people may be deceived, and reject the best citizens to their great injury, and, it may be, to the loss of their liberties." A subsequent publication of the newspaper, containing a recantation, if fair and explicit, is admissible in mitigation of damages. Such a publication, not retracting the libelous charge, but merely attempting to construe it in a different sense from that fairly imputable, has been held not admissible. The defendant can not give in evidence, in mitigation of damages, a former recovery of damages against him in favor of the same plaintiff, in another action for a libel which formed one of a series of numbers published in the same paper, and containing the libelous words charged in the declaration in the second suit. In disproving malice, though the plaintiff may give evidence of actual malice and vindictive motives on the part of defendant, the latter may rebut all presumption of actual malice by showing facts and circumstances which induced him to suppose the charge true when he made it. No facts of this kind can be shown, however, except such as were actually known to the defendant when he made the charge. Although the facts and circumstances which tend to disprove malice, by showing that the defendant, though mistaken, believed the charge true when made, may be given in evidence in mitigation of damages, nevertheless, if the facts and circumstances offered tend to establish the truth of the charge, or go toward making out a justification, they are inadmissible. The defense, failing in a pleading of justification, may rely upon the same evidence in mitigation. All matters occurring after the publication of a libel, though they prove its truth, are inadmissible, These rulings do not apply to the class of publications which are described as privileged. It is settled that a fair and impartial account of judicial proceedings, which have not been ex parte, is a privileged publication. But any conclusion a newspaper may draw from the evidence in such a proceeding is not privileged. The report must also strictly conform to the actual proceedings in court, and must contain no defamatory comments, to be privileged. It is a well-settled rule that the publication of ex parte proceedings or preliminary examinations, although they may be of a judicial character, is not privileged. When they reflect injuriously upon individuals, the publisher derives no benefit from the fact of their having been already delivered in court, and must found his defense, not in the truth of the report, but in the truth of the charge conveyed in the report. The rule of privilege does not extend to any additions, editorial comments, or headlines, published in connection with judicial proceedings. The publication of a speech made by a convict at the time and place of execution, is not privileged, and if scandalous imputations are used, he who publishes them afterward must be responsible for the injury occasioned to the person attacked. Fair reports of the proceedings of a legislative body are absolutely privileged; but a privileged publication of this character, as well as of others, may be libelous, and the difference consists in the proof necessary to sustain the action. In privileged publications, good faith is presumed, and the plaintiff must not only show the publication, but also that the defendant, in making it, was governed by bad motives. Where actual malice is shown to exist, one who has published that which is prima facie privileged, has no privilege, although without this the publication would have been privileged and even justifiable. The definition of privileged publications is a more modern phase of the law of libel, and has been established by statute in most of the states. It is evident that the tendency of the courts is to somewhat extend the protection of privilege to newspapers; and that the relief which publishers seek from the onerous character of this law, as now interpreted, is to largely come from the enlargement of this privilege, in its bearing upon the ordinary business of newspaper publication. In a broader sense than the law implies, the general privilege of a newspaper has come to cover, in public opinion at least, the right to discuss public matters, and public men, as they are inseparably connected with these matters. News can not be printed with impunity, even when there is absence of malice; but the privilege of discussion extends to matters of government in all its grades; to the performance of official duty by all classes of public officers and agents; to courts, prisons, charities, public schools, to all means of transportation, even when in private hands; to all schemes and enterprises of a semipublic nature, which invite public favor and depend for success upon public confidence. But these discussions must be carried on in good faith, and within the limits of truth and fairness. The border line between that which is libelous and that which is not libelous is thus a vague and uncertain one, and the newspaper editor who would escape the constant liability to be brought into court in civil actions for damages, must exercise constant vigilance, caution and discretion. In the words of Chancellor Walworth, of New York, "the law recognizes no peculiar rights, privileges or claims to indulgence on the part of the conductors of the public press. They have no rights but such as are common to all. They have the right to publish the truth, but no right to publish falsehood to the injury of others, with impunity."

III.83.21

—The actual effects of the law of libel, notwithstanding the severity of interpretation common on the bench, are not such as to tempt to frequent resort to it, in the vindication of private character. The pecuniary damage to the plaintiff's character is the matter in issue in all civil suits, and the latitude of cross-examination allowed on this account involves an ordeal which few men care to encounter. It is thus a fact, that, while the number and circulation of newspapers are inordinately increasing, libel suits are less frequent than formerly; and the number of criminal prosecutions for libel is like wise decreasing, for much the same reasons.

III.83.22

—BIBLIOGRAPHY. The bibliography of typography is voluminous: it may be found in John F. Marthens Typographical Bibliography, Pittsburgh, Pa., 1875. The bibliography of journalism is still limited, and the most important contributions to it are, in England, Alexander Andrews' History of British Journalism, from the Foundation of the Newspaper Press to the Repeal of the Stamp Act in 1855; F. Knight Hunt's Fourth Estate: Contribution toward a History of Newspapers and the Liberty of the Press 1850; The Newspaper Press: Its Origin, Progress and Present Position, by James Grant, London, 1871; A History of Advertising, by Henry Sampson, London, 1874; C. Mitchell & Co.'s Newspaper Press Directory, published annually since 1846; May's British and Irish Press Guide, published annually since 1873; and in the United States, A History of Printing in America to the Year 1810, by Isaiah Thomas, Worcester, 1810, of which a second edition, with many notes and additions, under the direction of Samuel F. Haven, Nathaniel Paine and Joel Munsell, was published in 1874 by the American Antiquarian Society, of Worcester, Mass., in two volumes; Journalism in the United States from 1690 to 1872, by Frederic Hudson, New York, 1873; Specimens of Newspaper Literature, with Memoirs and Reminiscences, by Joseph T. Buckingham, two vols., Boston, 1852; Personal Memoirs and Recollections of Editorial Life by the same, two vols., Boston, 1852; Commemorative Address upon William Bradford, by John William Wallace, Albany, 1863; Andrew Bradford, by Horatio Gates Jones, Philadelphia, 1869; Newspapers and Newspaper Writers in New England, 1787-1815, by Delano A. Goddard, Boston, 1808; American Encyclopædia of Printing, by J. Luther Ringwalt, Philadelphia, 1871; Autobiography of Benjamin Franklin, various editions; Life of Horace Greeley, by James Parton, Boston, 1869; Henry J. Raymond and New York Journalism, by Augustus J. Maverick, Hartford, 1870 Schools of Journalism, by Whitelaw Reid, New York, 1872; Some Newspaper Tendencies, by the same, New York, 1879; Typographical Miscellany, by Joel Munsell, Albany, 1856; The Newspaper Record: A Complete List of Newspapers in the United States and Great Britain, with a Sketch of the Progress of American Journalism, by W. T. Coggswell, Philadelphia, 1856; The American Newspaper Directory, by George P. Rowell & Co., annual since 1868; The Newspaper Directory of the World, by H. P. Hubbard, New Haven, 1882; also the Special Report on the Newspaper Press in the Tenth Census of the United States. Upon the relations of the press to government and the law, see John Milton's Areopagitica, a Speech for the Liberty of Unlicensed Printing, London, 1644; Macaulay's History of England; May's Constitutional History of England; chaps. 7, 9 and 10; Hallam's Constitutional History of England; De Lolme's Constitution of England; Cooley's Constitutional Limitations in the United States, in which will be found citations of libel cases in American courts. Upon the law of newspaper libel, see Townshend on Libel; Shortt on Libel; Heard on Libel and Slander; Cooper on the Law of Libel and the Liberty of the Press; Holt on Libel; Starkie on Libel.

S. N. D. NORTH.

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