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But whether the authority of the judges be exerted at the motion of a private individual, or whether it be at the instance of the government itself, their sole office is to declare the punishment established by the law: it is to the jury alone that it belongs to determine on the matter of law, as well as on the matter of fact; that is, to determine, not only whether the writing which is the subject of the charge has really been composed by the man charged with having done it, and whether it be really meant of the person named in the indictment,—but also whether its contents are criminal.
And though the law in England does not allow a man, prosecuted for having published a libel, to offer to support by evidence the truth of the facts contained in it* (a mode of proceeding which would be attended with very mischievous consequences, and is every where prohibited), yet, as the indictment is to express that the facts are false, malicious, &c. and the jury, at the same time, are sole masters of their verdict,—that is, may ground it upon what considerations they please,—.it is very probable that they would acquit the accused party, if the fact, asserted in the writing before them, were matter of undoubted truth, and of a general evil tendency. They, at least, would certainly have it in their power.
And it is still more likely that this would be the case, if the conduct of the government itself was arraigned; because, besides this conviction, which we suppose in the jury, of the certainty of the facts, they would also be influenced by their sense of a principle generally admitted in England, and which, in a late celebrated cause, was strongly insisted upon, viz. That "though to speak ill of individuals deserved reprehension, yet the public acts of government ought to lie open to public examination, and that it was a service done to the state to canvass them freely."t
And indeed this extreme security with which every man in England is enabled to communicate his sentiments to the
* In actions for damages between individuals, the case, if I mistake not, is different, and the defendant ia allowed to produce evidence of the facts asserted by him.
t See Serjeant Glynn's speech for Woodfall in the prosecution against the latter, by the Attorney-General, for publishing Junius's Letter to the King.
LIBEETY OF THE PRESS.
public, and the general concern which matters relative to the government are always sure to create, have wonderfully multiplied all kinds of public papers. Besides those which, being published at the end of every year, month, or week, present to the reader a recapitulation of 'every thing interesting that may have been done or said during their respective periods, there are several others, which, making their appearance every day, or every other day, communicate to the public the several measures taken by the government, as well as the different causes of any importance, whether civil or criminal, that occur in the courts of justice, and sketches from the speeches either of the advocates, or the judges, concerned in the management and decision of them. During the time the Parliament continues sitting, the votes or resolutions of the House of Commons are daily published by authority; and the most interesting speeches in both houses are taken down in short-hand,* and communicated to the public in print.
Lastly, the private anecdotes in the metropolis and the country concur also towards filling the collection; and as the several public papers circulate, or are transcribed into others, in the different country towns, and even find their way into the villages, where every man, down to the labourer, peruses them with a sort of eagerness, every individual thus becomes acquainted with the state of the nation, from one end to the other; and by these means the general intercourse is such, that the three kingdoms seem as if they were one single town.f
And it is this public notoriety of all things that constitutes the supplemental power, or check, which, we have above said, is so useful to remedy the unavoidable insuffi
* Eeporting, printing, and publishing the debates of Parliament, is contrary to the express privileges of either House; but permission to do it is tacitly, and in practice openly, given.—Ed.
t We fear that De Lolme must have been ignorant of the villages and country towns of England, when he wrote this passage. One would suppose from it that every labourer and clown in England could read and understand the public papers and their political articles. Besides, at that time the communications by post were very imperfect. Generally speaking, we doubt whether, even at the present time, the rural inhabitants of England are sufficiently educated to be able to read the public newspapers.—Ed.
ciency of the laws, and keep within their respective bounds all those persons who enjoy any share of public authority.
As they are thereby made sensible that all their actions are exposed to public view, they dare not venture upon those acts of partiality, those secret connivances at the iniquities of particular persons, or those vexatious practices which the man in office is but too apt to be guilty of, when, exercising his office at a distance from the public eye, and as it were in a corner, he is satisfied, that provided he be cautious, he may dispense with being just. Whatever may be the kind of abuse in which persons in power may, in such a state of things, be tempted to indulge themselves, they are convinced that their irregularities will be immediately divulgedThe juryman, for example, knows that his verdict—the judge, that his direction to the jury—will presently be laid before the public: and there is no man in office, but who thus finds himself compelled, in almost every instance, to choose between his duty, and the surrender of all his former reputation.
It will, I am aware, be thought that I speak in too high, terms of the effects produced by the public newspapers. I indeed confess that all the pieces contained in them are not patterns of good reasoning, or of the truest Attic wit; but, on the other hand, it scarcely ever happens that a subject in which the laws, or in general the public welfare, are really concerned, fails to call forth some able writer, who, under some form or other, communicates to the public his observations and complaints. I shall add here, that, though an upright man, labouring for a while under a strong popular prejudice, may, supported by the consciousness of his innocence, endure with patience the severest imputations; the guilty man, hearing nothing in the reproaches of the public but what he knows to be true, and already upbraids himself with, is very far from enjoying any such comfort; and that, when a man's own conscience takes part against him, the most despicable weapon is sufficient to wound him to the quick.*
* I shall take this occasion to observe, that the liberty of the press is so far from being injurious to the reputation of individuals (as some persons have complained), that it is, on the contrary, its surest guard. When there exist no means of communication with the public, every LIBEBTY OF THE PEESS.
Even those persons whose greatness seems most to set them above the reach of public censure, are not those who least feel its effects. They have need of the suffrages of that vulgar whom they affect to despise, and who are, after all, the dispensers of that glory which is the real object of their ambitious cares. Though all have not so much sincerity as Alexander, they have equal reason to exclaim,— O people! what toils do we not undergo, in order to gain your applause!
I confess that in a state where the people dare not speak their sentiments but with a view to please the ears of their rulers, it is possible that either the prince, or those to whom he has trusted his authority, may sometimes mistake the nature of the public sentiments; or that, for want of that affection of which they are denied all possible marks, they may rest contented with inspiring terror, and make themselves amends in beholding the overawed multitudes smother their complaints.
But when the law gives a full scope to the people for the expression of their sentiments, those who govern cannot conceal from themselves the disagreeable truths which resound from all sides.* They are obliged to put up even with ridicule; and the coarsest jests are not always those which give them the least uneasiness. Like the lion in the fable, they must bear the blows of those enemies whom they despise the most; and they are, at length, stopped short in their career, and compelled to give up those unjust pursuits which, they find, draw upon them, instead of
one is exposed, without defence, to the secret shafts of malignity and envy. The man in office loses his reputation, the merchant his credit, the private individual his character, without so much as knowing either who are his enemies, or which way they carry on their attacks. But when there exists a free press, an innocent man immediately brings the matter into open day, and crushes his adversaries at once, by a public challenge to lay before the public the grounds of their several imputations.
* Whatever may be the defects of the British press, it is rare indeed that the private character of any one is attacked, although political principles and conduct are never spared. The journal which either maliciously or wickedly attacks private character and reputation gfinerally suffers more than the party attacked.—Ed.
the proposed end and reward of their labours, nothing but mortification and disgust.
In short, whoever considers what it is that constitutes the moving principle of what we call great affairs, and the invincible sensibility of man to the opinion of his fellowcreatures, will not hesitate to affirm, that if it were possible for the liberty of the press to exist in a despotic government, and (what is not less difficult) for it to exist without changing the constitution, this liberty would alone form a counterpoise to the power of the prince. If, for example, in an empire of the East, a place could be found which, rendered respectable by the ancient religion of the people, might ensure safety to those who should bring thither their observations of any kind, and from this sanctuary printed papers should issue, which, under a certain seal, might be equally respected, and which in their daily appearance should examine and freely discuss the conduct of the cadis, the pashas, the vizir, the divan, and the sultan himself,—that would immediately introduce some degree of liberty.*
THE SUBJECT CONTINUED.
Anotheb effect, and a very considerable one, of the liberty of the press is, that it enables the people effectually to exert those means which the constitution has bestowed on them, of influencing the motions of the government.
It has been observed in a former place how it came to be a matter of impossibility for any large number of men, when obliged to act in a body, and upon the spot, to take any well-weighed resolution. But this inconvenience, which is the inevitable consequence of their situation, does in nowise argue a personal inferiority in them, with respect to the few
* The liberty of the press has never existed, and never will exist, under a despotic government; and we may lay down as a principle that wherever the liberty of the press is restrained, civil, political, and religious liberty, if they ever existed, are also subverted.—Ed.