James Burgh (1714-1775) was a Scottish-born British schoolmaster and political theorist who advocated for a broader protections for speech than recognized by British law of the time, particularly for speech critical of government officials. His theory and similar views by others were likely influential in the development of free speech concepts in America.
Burgh also favored popular sovereignty (including the right to instruct representatives), challenged parliamentary corruption and opposed political factions. He favored annual elections and the expansion of voting rights, and, in addition to advocating for rights of speech, he advocated for rights of religion, press, assembly and petition that were later outlined in the First Amendment.
Burgh’s works defended free speech, free press
Burgh’s works, the first of which were published anonymously, included “The Dignity of Human Nature” (1754), a work that resembled Benjamin Franklin’s “Poor Richard’s Almanack”; “Crito,” defending religious toleration and the importance of the rights of association and petition; and “Political Disquisitions,” which were published in three volumes in 1775 and quickly republished in America.
Burgh drew from numerous other theorists including Lord Bolingbroke and John Locke. He also was a friend of Joseph Priestly, Richard Price and Benjamin Franklin, who were fellow members of a London group known as the Honest Whigs. After the adoption of the Stamp Act and the Townshend Duties, Burgh had supported American colonial arguments that Parliament had no right to tax them. John Adams, Thomas Jefferson and James Wilson were among other influential Americans who were familiar with his works.
Burgh justified wider view of free speech than in British law
Burgh laid out his arguments for freedom of speech and press in an essay in the third volume of “Political Disquisitions” (1775) entitled “Of the Liberty of Speech and Writing in Political Subjects.” British law of the time provided for more expansive freedoms than most nations, but leading British judges including William Blackstone and Lord Mansfield had indicated that although freedom of speech and press included the right to be free of prior licensing requirements, it still left individuals subject to prosecution for seditious libel if they made statements intended to criticize or provoke dissatisfaction with the government. Indeed, because of the public disorder that such statements could cause, individuals could be convicted even when the statements were true.
Some prominent historians have argued that this interpretation initially applied to the First Amendment, but many Americans did not agree. For example, in 1735 a New York jury acquitted John Peter Zenger of seditious libel because the jurors believed that Zenger’s criticisms against the New York’s colonial governor were, in fact, true. Moreover, many theorists, including Burgh, justified a more expansive protection for speech than British law allowed.
Burgh: People should not be prosecuted for criticizing government
In his 1775 essay, Burgh argued that governmental punishments for criticisms of public officials was “one of the most atrocious abuses.” Listing numerous public offices, including the monarchy, Burgh observed that none were “infallible.” Burgh thought that private individuals criticizing the public actions of public officials should be as exempt from prosecution as speech within parliament (the counterpart to which is the Speech and Debate Clause in Article I, Section 6 of the U.S. Constitution).
Burgh thought it was contradictory for the law to label false libel as an aggravating factor in convictions but still allow prosecutions of individuals for truthful statements as breaches of the peace: “To libel me for what I cannot affirm myself to be innocent of, is no breach of the peace, as it does not naturally tend to excite revenge, but rather ingenuous shame and reformation.”
Burgh further argued that the way for public officials to avoid ridicule was to refrain from censorious actions. Observing that even good rulers sometimes engage in bad behaviors, he wrote that: “As no man is perfect, as no man is infallible, the greatest may err, the most circumspect may be guilty of some piece of ridiculous behavior. It is not licentiousness, it is an useful liberty always indulged the stage in a free country, that some great men may there meet with just reproof, which none of their friends will be free enough, or rather faithful enough to give them.”
Burgh cited Gordon (presumably Thomas Gordon, one of the authors of “Cato’s Letters”) to establish that private and public figures should be protected against libels of their private lives, but that public individuals should not be shielded against accusations about their public conduct.
Burgh: Speech freedom is not a hardship for public officials
In a statement not unlike the Supreme Court’s differential standard for libel for public officials outlined in New York Times v. Sullivan (1964), Burgh denied that such freedom would produce hardships: “It is no hardship at all, but the unavoidable inconvenience attendant upon a high stations, which he who dislikes must avoid, and keep himself private.”
Burgh further observed “If a statesman is liable to be falsely accused, let him comfort himself by recollecting, that he is well paid,” and that as an official, he should be punished for bad behavior because of its wide consequences. Burgh further argued that “If a statesman is falsely accused, he has only to clear his character, and he appears in a fairer light than before. He must not insist on punishing his accuser; for the public security requires, that there be no danger in accusing those who undertake the administration of national affairs.”
Implications for First Amendment interpretation
Historian Wendell Bird has argued that colonial acceptance of the free speech views of Burgh and others, and James Madison’s failure to cite the common law in the First Amendment (as it would be cited in the Seventh Amendment provision for jury trial in civil cases), indicates that the protections for speech and press in the Amendment were purposely designed to be broader than corresponding freedoms in Great Britain as recognized by contemporary British jurists.
This article was written by John R. Vile, a professor of political science and dean of the Honors College at Middle Tennessee State University, in March 2024.