Page:Harvard Law Review Volume 32.djvu/982

946 946 HARVARD LAW REVIEW servants of the people, who may therefore find fault with their servants and discuss questions of their punishment or dismissal. Under the first view, which was officially accepted until the close of the eighteenth century, developed the law of seditious Hbel. This is defined as "the intentional pubHcation, without lawful excuse or justification, of written blame of any public man, or of the law, or of any institution estabhshed by law."^ There was no need to prove any intention on the part of the defendant to produce disaffection or excite an insurrection. It was enough if he intended to pubHsh the blame, because it was unlawful in him merely to find fault with his masters and betters. Such, in the opinion of the best authorities, was the common law of sedition.^^ It is obvious that under this law hberty of the press was nothing more than absence of the censorship, as Blackstone said. All through the eighteenth century, however, there existed beside this definite legal meaning of hberty of the press, a definite popu- lar meaning: the right of unrestricted discussion of pubHc affairs. There can be no doubt that this was in a general way what freedom of speech meant to the framers of the Constitution. As Schofield says, "One of the objects of the Revolution was to get rid of the EngHsh common law on hberty of speech and of the press. . . . Liberty of the press as declared in the First Amendment, and the English common-law crime of sedition, cannot co-exist. "^^ I must therefore strongly dissent, as would Professor Schofield, from the conclusion of Dean Vance in a recent article on the Espionage Act, that the founders of our government merely intended by the First Amendment "to limit the new government's statutory powers to penalize utterances as seditious, to those which were seditious under the then accepted common-law rule." ^® The founders had seen seventy EngHsh prosecutions for Hbel since 1760, and fifty convic- tions under that common-law rule, which made conviction easy.^** That rule had been detested in this country ever since it was re- pudiated by jury and populace in the famous trial of Peter Zenger, « 2 Stephen, History of the Criminal Law, 353. " Ibid., 353, and Chap. XXIV, passim; Schofield, in 9 Proc. Am. Sociol. Soc, 70/., gives an excellent summary with especial reference to American conditions. « Schofield, Ibid., 76, 87. »•> 2 May, Constitutional History of England, 2 ed., 9, note.
 * » W. R. Vance, in "Freedom of Speech and of the Press," 2 Minn. L. Rev. 239, 259.