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their complaints. A simple remedy this, and which only requiring, in its application, a knowledge of matters of fact, is entirely within the reach of the abilities of the people; but a remedy, at the same time, which is the most effectual that could be applied; for as the evils complained of arise merely from the peculiar dispositions of a certain number of individuals, to set aside those individuals is to pluck up the evil by the roots.

But I perceive, that, in order to make the reader sensible of the advantages that may accrue to the people of England from their right of election, there is another of their rights, of which it is absolutely necessary that I should first give an account.

CHAP. 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 began 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 com. plied 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 inconveniencies, 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 inade 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 at tended, 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

M. de Montesquieu, and M. 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 canvass the actions of their rulers, that, in his System of Policy, which he calls An Account of Eutopia (the happy region eu and TоTо), 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 occa. sion, 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.

the hands of the people at large the exercise of the cen❤ sorial 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 maajesty by which they are surrounded, 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 de cided 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 chiefjustice 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 the 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, 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 particu larly constitutes the freedom of the press. If the magi strates, 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 governing 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.

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

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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 truths 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 were 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.'+

And indeed this extreme security with which every man in England is enabled to communicate his sentiments to the 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

In actions for damages between individuals, the case, if I mistake not, is different, and the defendant is allowed to produce evidence of the facts asserted by him.

+ 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.

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