Smith discusses Thomas Erskine’s ideas on libel laws and freedom of the press, and how he incorporated those ideas during his defense of Thomas Paine.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In Part 2 of this series I discussed some aspects of the English prosecution of Thomas Paine, who was tried in absentia (18 December 1792) for seditious libel. His crime consisted of writing the second part of Rights of Man. This installment of my series, though it continues with a discussion of Paine’s trial, takes a detour through the broader intellectual landscape of freedom of the press, especially as defended by Thomas Erskine (1750–1823), Paine’s celebrated defense counsel.

In English common law, libel was a nebulous concept with numerous variations, which is why it was so beloved by British authorities, who could bring a charge of seditious libel for just about any political doctrine, expression, or publication that they didn’t like.

Sir William Blackstone, in his authoritative Commentaries on the Laws of England (1765–69), explained that libels “are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath or expose him to public hatred, contempt, and ridicule.” In a civil action, according to Blackstone, a libel must be false as well as scandalous; but truth is irrelevant in a criminal prosecution of libel, because criminal law considers only the tendency of a libel “to create animosities and to disturb the public peace.” And since true as well as false statements may lead to “the breach of the public peace…and perhaps to bloodshed,” truth is no defense against a charge of seditious libel. Blackstone concluded:

And, therefore, in such [criminal] prosecutions the only points to be inquired into are, first, the making or publishing of the book or writing, and secondly, whether the matter be criminal; and if both these points are against the defendant, the offence against the public is complete.

Paine’s attorney was Thomas Erskine (1750–1823), who later served as Lord Chancellor of Britain (1806–7). Erskine made a significant contribution to the reform of English libel law. Contrary to the prevailing view–according to which the judge had the sole right to determine if a publication is libelous, and the jury had no function other than to determine whether or not the defendant was responsible for that publication–Erskine argued that the jury should decide on the libelous nature of a publication, and that such determination should be made within the full context of the work, including the intent of the author, publisher, or distributor. Only if a defendant had a “mischievous intention,” such as the desire to deceive or to inflict harm on his government or country, should he be convicted of seditious libel.

Erskine famously argued for this interpretation of libel law during the trial of William Davies Shipley, Dean of St. Asaph, for seditious libel (August 1784). In a speech “for the support of the Rights of Juries,” which was delivered to the King’s Bench after the jury had rendered an ambiguous verdict. Erskine argued:

[N]o act, which the law in its general theory holds to be criminal, constitutes in itself a crime, abstracted from the mischievous intention of the actor. And…the intention, even where it becomes a simple inference of legal reason from a fact or facts established, may, and ought to be collected by the jury, with the judge’s assistance.

Erskine sent transcripts of the Asaph trial to a political ally and liberal Whig, Charles James Fox, who then helped push the Libel Act of 1792 through Parliament–an act that empowered juries to decide, not only the external facts of a case, but also the question (previously reserved for judges) of whether a libelous act had really occurred. This interpretation of libel law became the foundation for Erskine’s defense of Thomas Paine. Erskine stated his general approach as follows:

The proposition which I mean to maintain, as the basis of the liberty of the press, and without which it is an empty sound, is this: that every man, not intending to mislead, but seeking to enlighten others with what his own reason and conscience, however erroneously, have dictated to him as truth, may address himself to the universal reason of a whole nation, either upon the subject of governments in general, or upon that of our own particular country; that he may analyze the principles of its constitution, point out its errors and defects, examine and publish its corruptions, warn his fellow‐​citizens against their ruinous consequences, and exert his whole faculties in pointing out the most advantageous changes in establishments which he considers to be radically defective, or sliding from their object by abuse. All this every subject of this country has a right to do, if he contemplates only what he thinks would be for its advantage, and but seeks to change the public mind by the conviction which flows from reasoning dictated by conscience.

Erskine did not repudiate the notion of seditious libel per se. (Nor did Thomas Jefferson and many of his American contemporaries, according to a controversial book by Leonard Levy, Jefferson and Civil Liberties: The Darker Side, 1963). Rather, Erskine argued that a person would be guilty of seditious libel if “he wickedly condemns what his own understanding approves…if he calumniates living magistrates, or holds out to individuals, that they have a right to run before the public mind in their conduct; that they may oppose by contumacy or force what private reason only disapproves; that they may disobey the law, because their judgment condemns it; or resist the public will, because they honestly wish to change it–he is then a criminal upon every principle of rational policy.…”

Thus, if it could be shown that Thomas Paine, in Rights of Man, had advocated disobedience of the laws or violent resistance against the British government, then Erskine would “willingly yield him up to the justice of the court.” But Paine had advocated none of these truly seditious actions. Instead, he attempted, by appealing to reason, to demonstrate the superiority of a republican form of government over a monarchical form. Moreover, Paine did not defend his opinions out of the blue, as if seeking to foment unrest and resentment among his readers. Rights of Man was specifically written to rebut the contrary arguments presented by Edmund Burke in Reflections on the Revolution in France, and Paine should be afforded the same freedom enjoyed by Burke.

In Part 1, I described Erskine as “perhaps the greatest civil rights attorney of his day”–but unblemished libertarian heroes are hard to come by. Erskine’s defense of a free press had its limits, as curiously illustrated when he served as a prosecutor in the trial of Thomas Williams for blasphemy (June 1797). The impecunious Williams, who was caring for three children with smallpox, had published copies of Part Two of The Age of Reason (1795), Thomas Paine’s notorious broadside attack against Christianity. Although Erskine claimed that his role reversal from defender to prosecutor was consistent with his belief in a free press–an outright attack on Christianity, he said, was an attack on the very foundations of civil society and so should not be permitted–the solicitor for Thomas Williams, John Martin, bluntly accused Erskine of hypocrisy. (See Martin’s Letter to the Hon. Thomas Erskine, 1797).

Ironically, the defense attorney for Thomas Williams was Stewart Kyd, a deist and radical republican whom Erskine had successfully defended against the charge of high treason, in October 1794. (A number of prominent libertarians were prosecuted along with Kyd, including Thomas Hardy, John Horne Tooke, Thomas Holcroft, and John Thelwall. See the trial transcript here.) Kyd used the same method of argument when defending Williams that Erskine had used when defending Paine, and Kyd did not hesitate to call attention to this embarrassing parallel. But Erskine proved as successful in his prosecution of Williams as he did in his defense of Kyd. Tragically, Thomas Williams was found guilty, sentenced to a year in prison, and required to pay a huge security to insure his future good conduct. Whatever became of his children is not known, but we do know that Erskine, after becoming aware of Williams’ dire circumstances, pleaded for leniency–a plea that went unheeded.

Are there any lessons to be learned from the trials of Thomas Erskine, that inconstant defender of a free press? Two come to mind. The first and most obvious point is that the personal failings of a defender of freedom have no bearing on his or her lasting contributions to the theory of freedom. Second and perhaps less obvious is the point that the fundamental principles of a free society did not spring full‐​blown, like Athena from the head of Zeus–or, closer to home, from the head of Ayn Rand or Murray Rothbard. On the contrary, principles that modern libertarians take for granted, principles that we think should be obvious to everyone, developed gradually, over time, as libertarian theorists ironed out the inconsistencies of their predecessors. An interesting example of this progressive development may be found in Erskine’s speech in defense of Thomas Paine.

In Erskine’s day, it was common for self‐​identified defenders of a free press to stipulate that such freedom prohibits only the prior restraint of a publication, and that this does not exempt a writer or publisher from prosecution after publication. As Blackstone put it:

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser…is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse of that free will is the object of legal punishment.

Erskine quoted John Locke, David Hume, and even Edmund Burke in his defense of a free press. Erskine also quoted from John Milton’s Areopagitica (1644), while acknowledging that Milton’s magnificent defense of a free press was meant to pertain only to the abolition of pre‐​publication licensing, not to legal liability incurred after publication. (This is the same position later articulated by Blackstone, quoted above.) Erskine made two salient points about this qualification. First, if every work that runs counter to the “wishes of government, or to the opinions of those who may compose it,” is to be condemned as libelous, then to institute pre‐​publication licensers and censors would be the rational course of action. For if the censor forbids the publication of a book, the writer simply needs to forbear publication, and that will be the end of the matter (unless the writer appeals the decision of the censor to a higher authority). But if a writer may be prosecuted after his book has been published, then he will live in a continuous state of insecurity and fear, never knowing if and when he will suffer legal punishment: “upon the argument of today, a man must print at his peril, without any guide to the principles of judgment, upon which his work may be afterwards prosecuted and condemned.”

Erskine concluded that Milton’s arguments, if consistently applied, condemn all forms of censorship, not merely pre‐​publication licensing–an insight that has surely occurred to many readers of the Areopagitica and other early defenses of a free press that are riddled with exceptions. Generally speaking, this is the manner in which libertarian ideas have developed and progressed over time. A thinker posits a core principle of freedom but fails to understand or embrace its sundry implications, after which subsequent thinkers develop the inner logic of that principle in greater detail. Thus have the principles of freedom taken on a life of their own, apart from the intentions of their creators, as if seeking consistent advocates. But improvements in the principles of liberty would never have occurred if there had not been a foundation, however flawed, to build upon.