Commenting upon Hamilton’s position, Story remarked: “The want of a bill of rights then, is not either an unfounded or illusory objection. The real question is not, whether every sort of right or privilege or claim ought to be affirmed in a constitution; but whether such, as in their own nature are of vital importance, ought not to receive this solemn sanction.” Story, Commentaries, vol. iii, p. 721.
[284] Annals of 1st Congress, vol. i, p. 434.
[285] Elliot’s Debates, vol. ii, p. 552; vol. iii, 659; Thorpe, Constitutional History, vol. ii, 204.
[286] Cooley’s Blackstone, Book iv, pp. 151, 152. Lord Kenyon’s view was practically the same. He said: “A man may publish anything which twelve of his countrymen think is not blamable, but he ought to be punished if he publishes what is blamable.” Rex v. Cuthill, 27 St. Trials, 675. Cf. Professor Dicey’s classic statement: “Freedom of discussion is, then, in England little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think it expedient should be said or written.” Law of the Constitution (8th ed.), p. 242.
[287] 3 Johns. Cas. (N. Y.) 337 (1798); Hamilton’s Works (Lodge’s Ed.), vol. vii, p. 339. See the able analysis of Hamilton’s definition by Professor Schofield, “Freedom of the Press in the United States,” in Proceedings of the American Sociological Society, vol. ix, p. 67, at p. 88 ff. (1915).
[288] Story, Commentaries, vol. iii, p. 732. To the same effect is Kent, Commentaries, vol. ii, lec. 24. A different contention, however, seems to have been made by Tucker, Blackstone’s Commentaries, vol. ii, App., Note G, pp. 11–30.
[289] These cases will be considered later in this chapter.
[290] Patterson v. Colorado, 205 U. S. 458 (1907). But see Mr. Justice Harlan’s dissent, Professor Schofield’s criticism of the majority opinion (Freedom of the Press in the United States, pp. 110–112), and Respublica v. Oswald, 1 Dall. 319 (1788). In U. S. v. Cruikshank, 92 U. S. 542 (1876), the court held: “The First Amendment to the Constitution ... like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the state governments in respect to their own citizens, but to operate upon the national government alone. ‘The scope and application of these amendments are no longer subjects of discussion here,’ They left the authority of the states just where they found it, and added nothing to the already existing powers of the United States.”
Professor Schofield is of the opinion that the Slaughter House Cases, 16 Wall. 36 (1872), are authority for the principle that “the right to publish truth on matters of national public concern is one of the privileges and immunities of citizens of the United States protected from abridgment by any state by the first prohibition in the Fourteenth Amendment.” Freedom of the Press in the United States, p. 113. It was held in U. S. v. Hall, 26 Fed. Cas. 79 (1871), that “the right of freedom of speech, and other rights enumerated in the first eight articles of amendment to the Constitution of the United States, are the privileges and immunities of citizens of the United States, that they are secured by the Constitution, that Congress has the power to protect them by appropriate legislation.” See Lien, Privileges and Immunities of Citizens of the United States, p. 69. The Supreme Court in Patterson v. Colorado, above, refused to decide whether the liberty of the press declared in the First Amendment, is included by the word “liberty” in the Fourteenth Amendment. These questions, however, are outside the purview of the present discussion.
[291] Patterson, Liberty of the Press, Speech and Public Worship, p. 61 ff.; 2 Willoughby on the Constitution, 844; and Townshend, Slander and Libel, 2d ed., sec. 252.