Adams Papers

To John Adams from William Cushing, 18 February 1789

Boston Feby the 18th. 1789.—

Dear Sir—

I know you will forgive me if I draw your attention, a moment, from the weighty matters that employ it, to the Subject of libels & liberty of the press; on which I had the pleasure of a word with you —lately. Our 16th. Art. of declaration of rights, holds forth that, "The liberty of the press is essential to the Security of freedom in a state," and that—"It ought not, therefore, to be restrained within this Commonwealth." I confess I have had a difficulty about the construction of it; which no Gentleman better than yourself can, in a word, clear up. My question is this—Whether it is consistent with this article, to deem & adjudge any publications of the press, punishable as libels, that may arraign the conduct of persons in office, charging them with instances of male conduct repugnant to the duty of their offices & to the public good & safety;—when such charges are supportable by the truth of fact? By the law of England, it seems clear, that, in a civil action for damages, a libel must appear to be false as well as scandalous; & the truth of an accusation may be pleaded in bar of a suit, whether brought for words or for a libel.

v4 Black. 150, & Elsewhere.

But on an indictment for a libel, it is held to be immaterial, whether the matter of it be true or false. And this law, Judge Blackstone says, is founded solely, upon the tendency of libels to create animosities & to disturb the public peace; & that the provocation, & not the falsity, is the thing to be punished criminally. And some books say, the provocation is the greater —if true. The consequence of all which is, that a man ought to be punished more for declaring truth, than for telling lies, in case the truth contains a charge of criminality against any one.

However in the case of the 7 bishops, Mr. Just. P., who, Ld. Camden said, was the only honest man upon the bench at that time, held that, to make the petition a libel it must be False &c, & that the case turned upon the truth of the assertion, that the dispensing power claimed by the King was illegal: & he held the position of the bishops true & right as to ecclesiastical laws & all other laws whatsoever. He was overruled indeed by the other Judges, especially by Ch. Just. Wright, & Allybone; the former laying it down, that whatever disturbed the government or made mischief or a stir among the people, was within the case of libellis famosis, & whether true or false, was a libel. Allybone, asserted, that a private man, taking upon him to write any thing concerning government, was an intruder into other mens matters, & was a libeller. But the dernier resort, the Jury overruled all & set them right.

The indictment in that case charged the petition to be a false writing—& I believe no indictment for a libel was ever framed, without an allegation of falsity. Which, with the reason of the thing, may be some apology for Just. P.’s mistaking the law.

It must be confessed that, as the law of England now stands,—truth cannot be pleaded in bar of an indictment, though it may, of a civil action, for a libel.—

The question is—whether it is law now, here. The 6th Art. of the last chap. of our constitution, is—that all laws heretofore adopted & usually practiced on in the Courts here, shall remain; excepting only such parts as are repugnant to the right & liberties of this Constitution. By the spirit & implication of their article, laws of England not usually practiced on here, are not to have force with us, & laws actually practiced on, but repugnant to the Constitution, are set aside. If therefore that point has never been adjudged here (& I do not know that it has been) we are at liberty to judge upon it de novo, upon the reason of <[. . .]> the thing & from what may appear most beneficial to Society. And in that case, it strikes me as it did honest Powel, that falisty must be a necessary ingredient in a libel.

But to come to our article, respecting liberty of the press: the words if it being very general and unlimited, what guard or limitation can be put upon it? Doubtless it may & ought to be restrainable from injuring characters; which is one principle object & end of other articles & of government. But charging a man, by word, writing or printing, with a crime, of which he is really guilty, is—damnum absque injuria, as Blackstone & others justly observe. And in general, no doubt, it may be restrained from injuring the public or individuals, by propagating falsehoods.

But when the article says—"The liberty of the press is essential to the Security of Freedom," and, "it ought not to be restrained" does it not comprehend a liberty to treat all Subjects & characters freely within the bounds of truth? Judge Black, says, (4.vol. p.151) the liberty of the press consists—"in laying no previous restraints upon publications," & not in freedom from censure for criminal matter when published. Wherein he refers to a public Licenser or inspector of the press. That is, no doubt, the liberty of the press,—as allowed by the law of England. But the words of our Article, understood according to plain English & common sense—make no such distinction, & must exclude subsequent restraints—as much as, previous restraints. In other words, if all men are restrained, by the fear of jails, scourges & loss of ears, from examining the conduct of persons in administration, and, where their conduct is illegal, tyrannical & tending to overthrow the constitution & introduce Slavery, are so restrained from declaring it to the public; that will be as effectual a restraint, as any previous restraint whatever.

The question upon the article is—what is that "Liberty of the press which is essential to the Security of Freedom"?

The propagating literature & knowledge by printing or otherwise, tends to illuminate mens minds, & to establish them in principles of liberty. But it cannot be denied also—that a Free scanning the conduct of administration, & shewing the tendency of it, & where truth will warrant, making it manifest, that it is subversive of all law, liberty & the constitution; it cannot be denied, I think, that this liberty tends "to the Security of Freedom in a State;" even more directly & essentially, than the liberty of printing upon literary & speculative subjects in general. Without this liberty of the press, could we have supported our liberties against british administration? Or could our revolution have taken place? Pretty certain, it could not at the time it did. Under a sense & impression of this Sort I conceive this article, was adopted. This liberty of publishing truth can never effectually injure a good government or honest administrators; but it may save a state & prevent the necessity of a revolution, as well as bring one about—when it is necessary. It may be objected—that a public prosecution is the regular course—in case of malefeasance.

But what single man would undertake such an invidious & dangerous task against a man high in interest, influence & power? But the liberty of the press, when it has truth for its basis, who can stand before it? Besides, it may facilitate a legal prosecution that is well founded, which might not otherwise have been dared to be attempted. When the press is made the vehicle of falsehood & scandal, let the authors be punished with becoming rigour. But Why need any honest man be afraid of truth? The guilty only fear it—and I cannot but be inclined to think with Gordon (in his letter upon Libels Vol. 3. no. 28 of Cato’s Letters) that truth sacredly adhered to, in all cases without exception can never upon the whole prejudice right religion equal government, or a government founded upon proper ballances & checks, or the happiness of society in any respect; but must promote them all.

Suppressing this liberty I am speaking for, by penal laws; will it not carry greater danger to freedom, than it will do good to government? The weight of government is Sufficient to prevent any very dangerous consequences occasioned by provocations resulting from charges founded in truth, whether such charges are made in a legal course, or otherwise.

But not to trouble you with a multiplicity of words; If I am wrong, I should be glad to be set right. Experiencing the happiness of your friendship upon former occasions, gives me a kind of further claim upon it.—

However I would not wish to intrude upon your busy hours, devoted to more important matters; & especially as you are to be speedily called to the weighty concerns of a high office in the federal government—not, indeed, as head, but to be a pillar to support the head & the whole fabrick;—an office, to which no man can dispute the ground of your title, as on other accounts, so particularly for the share you have had (greater in many respects, I suppose, than any other) at home and abroad, from the beginning to the conclusion, in the late revolution.—The point now is a stable government, which is to be in motion soon, & I heartily wish you Success.—I am Sir, your affectionate friend & humble Servant—

Wm. Cushing

MHi: Adams Papers.

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