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CHAPTER XII.

THE SUBJECT CONTINUED.—LIBERTY OF THE PRESS.

As the evils that may be complained of in a state do not always arise merely from the defect of the laws, but also from the non-execution of them,—and this non-execution of such a kind, that it is often impossible to subject it to any express punishment, or even to ascertain it by any previous definition,—men, in several states, have been led to seek for an expedient that might supply the unavoidable deficiency of legislative provisions, and begin to operate, as it were, from the point at which the latter begun to fail. I mean here to speak of the censorial power,—a power which may produce excellent effects, but the exercise of which (contrary to that of the legislative power) must be left to the people themselves.

As the proposed end of legislation is not, according to what has been above observed, to have the particular intentions of individuals, upon every case, known and complied with, but solely to have what is most conducive to the public good, on the occasions that arise, found out and established, it is not an essential requisite in legislative operations that every individual should be called upon to deliver his opinion: and since this expedient, which at first sight appears so natural, of seeking out by the advice of all that which concerns all, is found liable, when carried into practice, to the greatest inconveniences, we must not hesitate to lay it aside entirely. But as it is the opinion of individuals alone which constitutes the check of a censorial power, this power cannot produce its intended effect any farther than this public opinion is made known and declared: the sentiments of the people are the only thing in question here: it is therefore necessary that the people should speak for themselves, and manifest those sentiments. A particular court of censure would essentially frustrate its intended purpose: it is attended, besides, with very great inconveniences.

As the use of such a court is to determine ,upon those cases which lie out of the reach of the laws, it cannot be tied down to any precise regulations. As a farther consequence of the arbitrary nature of its functions, it cannot even be subjected to any constitutional check; and it continually presents to the eye the view of a power entirely arbitrary, and which in its different exertions may affect, in the most cruel manner, the peace and happiness of individuals. It is attended, besides, with this very pernicious consequence, that, by dictating to the people their judgments of men or measures, it takes from them that freedom of thinking which is the noblest privilege as well as the firmest support of liberty.*

We may therefore look upon it as a farther proof of the soundness of the principles on which the English constitution is founded, that it has allotted to the people themselves the province of openly canvassing and arraigning the conduct of those who are invested with any branch of public authority; and that it has thus delivered into the hands of the people at large the exercise of the censorial power. Every subject in England has not only a right to present petitions to the king, or to the houses of parliament, but he has a right also to lay his complaints and observations before the public, by means of an open press: a formidable right this, to those who rule mankind; and which, continually dispelling the cloud of majesty by which they are surrounded,

* Montesquieu and Rousseau, and indeed all the writers on this subject I have met with, bestow vast encomiums on the censorial tribunal that had been instituted at Rome: they have not been aware that this power of censure, lodged in the hands of peculiar magistrates, with other discretionary powers annexed to it, was no other than a piece of state-craft, like those described in the preceding chapters, and had been contrived by the senate as an additional mean of securing its authority. Sir Thomas More has also adopted similar opinions on the subject; and he is so far from allowing the people to canrass the actions of their rulers, that, in his system of policy, which he calls An Account nf Utopia (the happy region, tu and Tottos), he makes it death for individuals to talk about the conduct of government.

I feel a kind of pleasure, I must confess, to observe on this occasion, that though I have been called by some an advocate for power, I have carried my ideas of liberty farther than many writers who have mentioned that word with much enthusiasm.

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brings them to a level with the rest of the people, and strikes at the very being of their authority.

And indeed this privilege is that which has been obtained by the English nation with the greatest difficulty, and latest in point of time, at the expense of the executive power. Freedom was in every other respect already established, when the English were still, with regard to the public expression of their sentiments, under restraints that may be called despotic. History abounds with instances of the severity of the Court of Star-chamber, against those who presumed to write on political subjects. It had fixed the number of printers and printing-presses, and appointed a licenser, without whose approbation no book could be published, Besides, as this tribunal decided matters by its own single authority, without the intervention of a jury, it was always ready to find those persons guilty whom the court was pleased to look upon as such: nor was it indeed without ground, that the Chief-Justice Coke, whose notions of liberty were somewhat tainted with the prejudices of the times in which he lived, concluded the eulogiums he bestowed on this court, with saying, that, "the right institution and orders thereof being observed, it doth keep all England in quiet."

After the Court of Star-chamber had been abolished, the Long Parliament, whose conduct and assumed power were little better qualified-to bear a scrutiny, revived the regulations against the freedom of the press. Charles the Second, and after him James the Second, procured farther renewals of them. These latter acts having expired in the year 1692, were at this era, although posterior to the Revolution, continued for two years longer; so that it was not till the year 1694, that, in consequence of the Parliament's refusal to prolong the prohibitions, the freedom of the press (a privilege which the executive power could not, it seems, prevail upon itself to yield up to the people) was finally established.

In what, then, does this liberty of the press precisely consist? Is it a liberty left to every one to publish any thing that comes into his head ?—to calumniate, to blacken, whomsoever he pleases? No; the same laws that protect the person and the property of the individual, do also protect his reputation; and they decree against libels, when really so, punishments of much the same kind as are established in other countries.* But, on the other hand,

* There is nothing more remarkable in the history of the British Constitution than the liberty which has been acquired by the pres"; and although this freedom has been sometimes carried to a licentious and pernicious extent, yet it would be difficult to dispute the soundness of the admonition given by Junius:—"Let it be impressed on your minds, let it be instilled into your children, that the liberty of the press is the palladium of all the civil, political, and religious rights of an Englishman." It is also a remarkable fact, that the liberty of the press does not exist in any country except in those in which the inhabitants speak, write, and legislate in the English language. In regard to all political questions, in the British empire and the United States of America, there is no restraint whatever in printing and publishing either truth or falsehood; and as far back as the time of the Commonwealth, an English jury could not be found to give a verdict of guilty against John Lilburne. It is true that, since that period, frequent imprisonments, and the punishment of the pillory, have been inflicted for political writings. Daniel De Foe was placed in the pillory, and had his cars cut off, for writing articles which would now be considered neither extravagant nor libellous. It is also true, that during the Walpole administration, and until Fox's Act of 32 George III. c. 60, the judges were always unwilling to allow the benefit of a verdict of guilty of printing and publishing only, in cases of libel,—a spirit which they unquestionably exemplified in the remarkable case of the Dean of St. Asaph. In regard to libel, printed scandal, f. e. printed and published defamation of individual character, whether tending either to blacken the memory of one who is dead or the reputation of one who is living, is considered a far more serious offence than spoken scandal; and if a libel is found in a person's handwriting, he may be found guilty if he is not able to prove that he has not published it. Thus, while the utmost political freedom of printing and publishing is allowed, the character of individuals is fully guarded by the law of libel. A charge of libel may be prosecuted either by indictment, criminal information, or by an ordinary action. Until the Act 6 and 7 Victoria, c. 96, in a criminal prosecution it was immaterial whether the libel were true or false, as in either case it tended to a breach of the peace; and therefore it was the provocation and not the falsehood which fell to be punished. Under the Act 6 and 7 Victoria, c. 96, stated in the preamble to be for the better protection of private character, and for the more effectual securing the liberty of the press and preventing abuses, and for the exercising of the said liberty, the defendant,'in an action for defamation, is permitted to give evidence in mitigation of the damages, whether he had made or offered an apology for such defamation. And in any action for a libel contained in a newspaper or periodical, it is competent for the defendant to plead that it was inserted without actual malice, and from gro68 negligence l and if LIBEETY OF THE PEESS.

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they do not allow, as in other states, that a man should be deemed guilty of a crime for merely publishing something in print; and they appoint a punishment only against him who has printed things that are in their nature criminal, and who is declared guilty of so doing by twelve of his equals, appointed to determine upon his case, with the precautions we have before described.

The liberty of the press, as established in England, consists therefore (to define it more precisely) in this,—that neither the courts of justice, nor any other judges whatever, are authorized to take notice of writings intended for the press, but are confined to those which are actually printed, and must, in these cases, proceed by the trial by jury.

It is even this latter circumstance which more particularly constitutes the freedom of the press. If the magistrates, though confined in their proceedings to cases of criminal publications, were to be the sole judges of the criminal nature of the things published, it might easily happen that, with regard to a point which, like this, so highly excites the jealousy of the governiug powers, they would exert themselves with so much spirit and perseverance, that they might, at length, succeed in completely striking off all the heads of the hydra.

he inserted in such newspaper or periodical a full apology for the said libel, &c. And if any person threatens directly or indirectly to publish a libel, or proposes to abstain from publishing a libel upon any other person, or offers to prevent the printing or publishing of any matter, with the view of extorting money or other valuables, or with intent to procure any person an appointment or office of profit or trust, such offender may, upon conviction, be sentenced to a term not exceeding three years. And if any person shall maliciously publish a defamatory libel, knowing the same to be false, he is liable to imprisonment for two years, and such fine as the Court shall award, and on conviction he shall be liable to such fine or imprisonment as the Court shall award; but the imprisonment, in case of fine, is not to exceed one year. And, upon trial, the truth of the matters charged shall be inquired into, but not in the view of a defence, unless it should be a public benefit that the matters charged should be published. This Act has been extended to Ireland by the 8th and 9th Victoria, c. 35; but it does not extend to Scotland. So jealously has the law of libel been framed with regard to private character, that M. Peltier, who was prosecuted at the suit of the French Ambassador for a libel upon Napoleon Buonaparte, was found guilty and fined, notwithstanding one of the most able defences ever pronounced, by his counsel the late Sir James Mackintosh.—Ed.

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