William Blackstone: Commentaries on the Laws of EnglandPublished 1765–1769 | William Blackstone 1723-1780
Blackstone’s Commentaries on the Laws of England was a hugely influential treatise on English law that methodically rendered that massive body of statutes and legal decisions called the “common law” into a coherent system of legal principles intelligible to the lay-person. The Commentaries was the paramount authority on the common-law in the eyes of the American Founders. Its articulation of the logic of the common law was one of the reasons that they chose to establish the American legal system on its basis. Blackstone is still cited today by lawyers and judges in their efforts to articulate the meaning of American laws and the Constitution.
The fourth volume of the Commentaries includes a section dealing with libel and seditious libel, which informed to a great extent the Founders’ understanding of the freedom of the press clause of the First Amendment. There Blackstone insists that “the liberty of the press is indeed essential to the nature of a free state,” but concludes that this liberty consists primarily “in laying no previous restraints upon publication.” This legal principle, commonly called “prior restraint,” means simply that the government cannot create regulations, such as requiring a license to publish, that would punish or inhibit publishers before they had actually printed anything. Blackstone recognized little restriction, however, on the power of government to regulate printing after the fact.
There are two features of the common law understanding of libel, as Blackstone interpreted it, that the Founders rejected. First, Blackstone held that, aside from civil cases where an individual is claiming damages incurred against himself or herself, since the “the tendency which all libels have to create animosities, and to disturb the public peace, is the sole consideration of the law,” the truth of the libel is irrelevant to its defense. Second, the Commentaries made no provision for a jury trial in the case of seditious libel, meaning that the government could decide cases in which it was object of the alleged libel. In drafting the first federal seditious libel law, the Sedition Act of 1798, the Federalists departed from these two principles by explicitly providing that truth could be offered as a defense by anyone charged under the act and that such cases would be tried by a jury.
Blackstone’s Commentaries, Vol. 4, pp. 150-153
The selection below is from The Founders’ Constitution. Vol. 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 read it online at the Founders’ Constitution.
Of a nature very similar to challenges are libels, libelli famosi,which, taken in their largest and most extensive sense, signify any writings, pictures, or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule. The direct tendency of these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed. The communication of a libel to any one person is a publication in the eye of the law: and therefore the sending an abusive private letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace. For the same reason it is immaterial with respect to the essence of a libel, whether the matter of it be true or false; since the provocation, and not the falsity, is the thing to be punished criminally: though, doubtless, the falsehood of it may aggravate it’s guilt, and enhance it’s punishment. In a civil action, we may remember, a libel must appear to be false, as well as scandalous; for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offence it may be against the public peace: and therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the sole consideration of the law. And therefore, in such prosecutions, the only facts to be considered are, first, the making or publishing of the book or writing; and secondly, whether the matter be criminal: and, if both these points are against the defendant, the offence against the public is complete. The punishment of such libellers, for either making, repeating, printing, or publishing the libel, is fine, and such corporal punishment as the court in their discretion shall inflict; regarding the quantity of the offence, and the quality of the offender. By the law of the twelve tables at Rome, libels, which affected the reputation of another, were made a capital offence: but, before the reign of Augustus, the punishment became corporal only. Under the emperor Valentinian it was again made capital, not only to write, but to publish, or even to omit destroying them. Our law, in this and many other respects, corresponds rather with the middle age of Roman jurisprudence, when liberty, learning, and humanity, were in their full vigour, than with the cruel edicts that were established in the dark and tyrannical ages of the antient decemviri, or the later emperors.
In this, and the other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity; the liberty of the press,properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects. A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials. And to this we may add, that the only plausible argument heretofore used for restraining the just freedom of the press, “that it was necessary to prevent the daily abuse of it,” will entirely lose it’s force, when it is shewn (by a seasonable exertion of the laws) that the press cannot be abused to any bad purpose, without incurring a suitable punishment: whereas it never can be used to any good one, when under the control of an inspector. So true will it be found, that to censure the licentiousness, is to maintain the liberty, of the press.
Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765 – 1769. Vol. 4. Chicago: University of Chicago Press, 1979: 150-153.
Blackstone, William. Commentaries on the Laws of England. 4th Ed. Vol. 4. Oxford: Clarendon Press, 1979: 150-153.
Read the first edition online at the Avalon Project.
Read the first edition online at archive.org, or read below:
Archive.org hosts a digital copy of the fourth edition copy of Blackstone’s commentaries owned by John Adams. From the John Adams Library at the Boston Public Library.
Read online or download from archive.org, or read below:
Anastaplo, George. William Blackstone, Patrick Henry, and Edmund Burke on Liberty (1765–1790). In Reflections on Freedom of Speech and the First Amendment. Lexington: The University Press of Kentucky, 2011.
Read an excerpt on Project Muse
Alschuler, Albert W. “Rediscovering Blackstone.” University of Pennsylvania Law Review 145, no. 1 (1996): 1-55.
This article offers, among other things, a helpful overview of Blackstone’s view of the common law and his significance to the American legal system.
Find it on JSTOR (free access).
Levy, Leonard W. “The First Amendment: The Free Press Clause.” In Origins of the Bill of Rights. New Haven: Yale University Press, 1999.
In this chapter, Levy discusses the extent to which the Founders and their contemporaries relied on Blackstone in their understanding of the freedom of the press clause of the First Amendment.
Read it on JSTOR (restricted access).
Berns, Walter. “Freedom of the Press and the Alien and Sedition Laws: A Reappraisal.” The Supreme Court Review (1970): 109-159.
Berns argues that the Alien and Sedition Acts represented a liberal improvement on the common law seditious libel as described by Blackstone and that the critics of these Acts deferred more to Blackstone than did their federalist authors and defenders.