self appealed to the discredited principle
against partisan critics. Writing his friend Governor McKean of
Pennsylvania in 1803 anent such critics, Jefferson said: 'The
federalists having failed in destroying freedom of the press by their
gag-law, seem to have attacked in an opposite direction; that is by
pushing its licentiousness and its lying to such a degree of
prostitution as to deprive it of all credit. * * * This is a dangerous
state of things, and the press ought to be restored to its credibility
if possible. The restraints provided by the laws of the States are
sufficient for this, if applied. And I have, therefore, long thought
that a few prosecutions of the most prominent offenders would have a
wholesome effect in restoring the integrity of the presses. Not a
general prosecution, for that would look like persecution; but a
selected one.' Works (Ford ed., 1905), IX 451-52.

"In the _Memorial Edition_ of Jefferson's works this letter is not
included; nor apparently was it known to the Honorable Josephus Daniels,
whose enthusiastic introduction to one of these volumes makes Jefferson
out to have been the father of freedom of speech and press in this
country, if not throughout the world. The sober truth is that it was
that archenemy of Jefferson and of democracy, Alexander Hamilton, who
made the greatest single contribution toward rescuing this particular
freedom as a political weapon from the coils and toils of the common
law, and that in connection with one of Jefferson's 'selected
prosecutions.' I refer to Hamilton's many-times quoted formula in the
Croswell case in 1804: 'The liberty of the press is the right to publish
with impunity, truth, with good motives, for justifiable ends though
reflecting on government, magistracy, or individuals.' People _v._
Croswell, 3 Johns (NY) 337. Equipped with this brocard our State courts
working in co-operation with juries, whose attitude usually reflected
the robustiousness of American political discussion before the Civil
War, gradually wrote into the common law of the States the principle of
'qualified privilege,' which is a notification to plaintiffs in libel
suits that if they are unlucky enough to be officeholders or office
seekers, they must be prepared to shoulder the almost impossible burden
of showing defendant's 'special malice.' Cooley, _Constitutional
Limitations_, Chap. XII: Samuel A. Dawson, _Freedom of the Press, A
Study of the Doctrine of 'Qualified Privil