Page:Harvard Law Review Volume 32.djvu/990

954 954 HARVARD LAW REVIEW lishing Religious Freedom.^" His words about religious liberty hold good of political and speculative freedom, and the portrayal of human life in every form of art. "To suffer the civil Magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own;" Although the free speech clauses were directed primarily against the sedition prosecutions of the immediate past, it must not be thought that they would permit unlimited previous restraint. They must also be interpreted in the hght of more remote history. The framers of those clauses did not invent the conception of freedom of speech as a result of their own experience of the last few years. The idea had been gradually molded in men's minds by centuries of conflict. It was the product of a people of whom the framers were merely the mouthpiece. Its significance was not fixed by their per- sonality, but was the endless expression of a civilization.^^ It was formed out of past resentment against the royal control of the press under the Tudors, against the Star Chamber and the pillory, against the ParUamentary censorship which Milton condemned in his "Areopagitica," by recollections of heavy newspaper taxation, by hatred of the suppression of thought which went on vigorously on the Continent during the eighteenth century. Blackstone's views also had undoubted influence to bar out previous restraint. The censor is the most dangerous of all the enemies of liberty of the press, and cannot exist in this country unless made necessary by extraordinary perils. Moreover, the meaning of the First Amendment did not crystal- lize in 1 791. The framers would probably have been horrified at the thought of protecting books by Darwin or Bernard Shaw, but ™ Act of December 26, 1785, 12 Hening's Statutes at Large of Virginia (1823), c. 34, page 84. I Revised Code of Virginia (1803), c. 20, page 29. Another excellent argument against the punishment of tendencies is found in Philip Fxtrneaux, Letters to Blackstone, 2 ed., 60-63, London, 1771; quoted in State V. Chandler, 2 Harr. (Del.) 553, 576 (1837), and in part by Schofield, op. cit., 77. " I Kohler, Lehrbuch des Burgerlichen Rechts, § 38.