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The Popular Attitude Toward Liberty of Public

Discussion at the Close of the First Quarter of the 19th Century

5

According to Holcombe, "Blackstone's definition of

the liberty of the press has not been repudiated by the Amer6 ican judiciary". According to Blackstone, "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". The drastic common law of libel was moderated

"The

in favor of greater freedom of discussion. This moderation 7 first appeared in the Pennsylvania Constitution of 1790 which declared "that the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature or any branch of government, and no law shall ever be made to restrain the right thereof". It continued: free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty". Then, in order to guard against arbitrary convictions in libel cases it provided that "in prosecutions for the publication of papers investigating the official conduct of officers or men in 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 the right to determine the law and the facts, under the direction of the court, as in other cases".

5. Holcombe, op. cit., p. 555.

6. Ibid, p. 344.

7. Pennsylvania Constitution of 1790, Article IX, Section 7.

That this opinion was widespread even before the nineteenth century is shown by the fact that the Sedition Act of 1798 allowed the truth to be given in evidence, and that the states of the old Northwest and Southeast which were admitted to the union during the next generation generally adopted the view that the truth might be admitted as evidence in libel cases. 8 Chancellor Kent attests to the increasing passion of Americans for liberty of discussion when he wrote at the close of the first quarter of the nineteenth century: "The current of opinion seems to have been setting strongly, not only in favor of erecting barriers against any previous restraints on publications (which was all that the earlier sages of the Revolution had in view), but in favor of the policy that would diminish or destroy altogether every obstacle or responsibility in the way of the publication of the truth".

So it came to be understood early in the nineteenth century that no law might rightfully be enacted to restrain or abridge the freedom of the individual to speak, write, or publish his thoughts on all subjects without fear of punishment-providing, of course, that he did not abuse that right. Public Opinion During the Mexican War

The abolitionist groups roundly condemned the annexation of Texas and the Mexican War which followed, but no attempt was made by the government to throttle the most outspoken criticism. When James Russell Lowell put into the mouth of Hosea Bigelow the words, "Ez fer war, I call it murder", he surely was endangering the success of the American arms. Other 8. James Kent, "Commentaries on American Law", Lecture XXIV.

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