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only less remarkable than the invention itself; but, beyond all these, the increased use of reading, and the vast and still-extending facilities of mutual communication afforded by the present state of society, give to the press a moral force so prodigious, as to convert it into a new engine. The progress of a nation in political refinement, may always be read in the history of its jurisprudence. Our law of libel, tracing it from the earliest times, has varied with the varying modes and opportunities of social intercourse, prescribed and supplied by the actual frame of society. When our great Saxon and Danish legislators made laws, directing that the author of a slanderous report,--he'qui alium rumoribus dissipatis improbâ voce lacerârit,'--should be punished by excision of the tongue, it is apparent enough, both from the terms employed to describe the offence, and from the nature of the penalty denounced, that their attention was exclusively directed to oral, as distinguished from written slander. But their selection of this one branch of the crime, does not prove that they rated lightly the delinquency of the other. It proves only that the other was, in those rude times, little, if at all known. There were libellers, indeed, -libellers, that is, in spirit and intention; but, fortunately for those they hated, they could not write. Speech constituted the almost exclusive medium of communication between man and man; and, of course, was the great vehicle of truth and of falsehood, of praise and of blame, of compliment and of calumny. The shock of the Norman invasion, and the despotic nature of the government it introduced, could not but be unfavourable, in the first instance at least, to the progress of national refinement. But the sagacious and enlightened tyrants, who soon after occupied, at successive periods, the throne, introduced excellent laws; and knowledge and literature began to diffuse themselves, though at first with a current sufficiently tardy. The increased use of reading and writing would now be felt in increased abuses also. The first statute of Westminster, which passed under the reign of the First Edward, in prohibiting seditious and slanderous rumours, employs terms (de dire, de counter,) which, it must be admitted, appear primarily to refer rather to uttered than to written words, but which yet undoubtedly admit, with almost equal ease, of either application; the same remark applies to the statutes of Richard the Second against false news;* and it is certain that, as early as Edward the Third at least, and probably at a still earlier period, written slander, or what is properly called libelling, was held to be an indictable offence.
The lapse of time introduced yet greater alterations. Books multiplied. The art of writing, which is now confined chiefly to
* 2 R. II. c. 5. and 12 R. II. c. 11.
domestic purposes, was cultivated with such care, and applied to the circulation of literature with so much success, that even the invention of printing, stupendous as it was, does not appear to have broke on the world with all that palpable and immediate intensity of effect which we are in these days apt to ascribe to it. It was, however, like sunrise succeeding twilight, and itself succeeded by 'a brighter day. Writing, under which term both law and common sense include printing, now became, as a medium of general intercourse, far more effective than speech; and this change is curiously marked in the history of our legislation.
It is notorious that there are many things which, when committed to writing, the English law holds to be libels, and which yet, unless some special injury can be proved to have flowed from them, may be spoken without any legal blame.
When the courts first adopted this distinction, plausible objections to the practice might not have been hard to find. It might have been urged, that, in matters affecting the liberty of the press, innovations were not to be tolerated; that the law of libel, as already administered, was quite severe enough ;-that libels, after all, did little harm, for, if true, it was fitting that bad men should be exposed, and, if false, then truth was mighty and would prevail ;—that the newly-devised restriction would operate as a severe check on rising genius, which was frequently observed to make its first tender essays in the line of defamation that such a restriction, besides, would tend to degrade the respectable portion of the public press, by subjecting, to one and the same rule, the miscreant, who deliberately traded in sedition and blasphemy, and the worthy printer and bookseller, whose pages might exhibit only little occasional aberrations of a seditious or blasphemous spirit;with much more to the same effect. And the objector might have concluded with sighing over the departed mildness of the Saxon code, which suffered the slanderer to traduce and vilify whom he pleased, so long as he confined his effusions to the vehicle of stereo-type.
Of the periods of history we have mentioned, there are no two, taking them in succession, between which the force and influence of the press have made an advance so considerable as between the latest of those periods and the present time. As we have already explained, the instrument itself is altered, and it acts in a still more altered medium. In mechanical, and far more in moral power, it has gained immensely. But, if so, then surely we cannot wonder that it should require new checks and guards; for why must we expect, in this single instance, a failure of the rule thai, with the increase of power, increases also the liability to abuse ?-If it be said that a free press carries with it its own safeguards and correctives, the answer is, that this reasoning would prove too much; Vol. I.
since it must, if valid, equally prevail against restrictions of every kind without exception or discrimination, be they the most moderate or most arbitrary. That, within certain limits, such a selfmedicative quality really belongs to the liberty of the press, as well as to all liberty, we should be sorry to deny. Increase the power; and, for a long way at least, the consequent good will increase faster than the incident evil. But imperfection qualifies all human blessings; and it is painfully true that the evil will be progressive also, though, for some time, not at an equal pace. To promote the diffusion of knowledge, to elicit the fruits of genius, to facilitate and to encourage the general interchange of minds and of hearts, is undoubtedly to swell the total amount of virtue and of happiness; but we must not forget that, in some though not in an equal ratio, that tendency to excess and disorder, which must ever form the extreme boundary of the privilege, will partake of its enlargement; as the superficies of an expanding sphere necessarily increases, though it does not increase with the same rapidity as the solid content.
Even here, however, Jet us not be misunderstood. Although, under the alteration which the general circumstances of society have undergone, some increase might naturally be expected in the abuses of the liberty of the press, it does not follow that such expectation, taken by itself, and without proof of an actual increase in the number or malignity of those abuses, would afford a sufficient warrant for subjecting the press to new regulations. We cannot safely proceed, in such a case, on mere presumptions, how-' ever violent. The soundest theory, unsupported by facts, is but a questionable authority for introducing changes into a living body of law. We should at least have a sufficient weight of fact to prove the theory sound, and to justify the presumptions which it furnishes. In the present case, however, there can hardly be a doubt that this previous condition has been fulfilled with a frightful amplitude. The excesses of a licentious and turbulent press have theinselves exceeded all former bounds. The evil has appeared in shapes and attitudes with which the laws had confessedly no means of coping ; and, even where it has been forced to a contest with public justice, and has been baffled in the struggle, it has arisen only more powerful from defeat. In a word, the actual state of the fact supplies the clearest and most confirmatory comment on those deductions of theory, which would previously have prescribed the adoption of further regulations for the purpose of repressing an audacious mischief, and of sustaining the interests of the national morals, decorum, and purity.
Such are the views of this very important subject, which have led us cordially to approve of the recent regulations relative to the
liberty of the press, and, we may add, to the process of defence under prosecutions for misdemeanours.
There are two statutes exclusively directed against the abuses of the press. One of these subjects all pamphlets and papers, containing any public news, intelligence or occurrences, or any remarks upon them, or upon any matter in church or state, printed for sale, and published in numbers, periodically or at intervals not exceeding twenty-six days, where such papers or numbers shall not exceed two sheets, or shall be published for sale for a less price than sixpence exclusive of the duty, to the same duty as newspapers. It further enjoins that no person shall print or publish for sale any newspaper, or any such pamphlets or papers as above described, without having previously given securiiy in the sum of £300 if in or near London, and of £200 if elsewhere, to pay any fine or penalty that may be imposed on him by reason of a conviction for having printed or published a blasphemous or seditious libel. From these regulations, however, many classes of works are exempted, such as acts of parliament, proclamations, and other state publications, the bills of mortality, lists of prices current, and other commercial papers; and also books or papers commonly used in schools, or containing only matters of devotion, piety, or charity.
The other statute, . for the more effectual prevention and punishment of blasphemous and seditious libels,' authorizes the court in which any conviction shall take place for composing, printing, or publishing, any blasphemous libel, or any seditious libel, tending to bring into hatred or contempt, the person of the king or regent, or the government and constitution of the kingdom, or either house of parliament, or to excite attempts to alter any matter in church or state, otherwise than by lawful means, to make an order for the seizing, carrying away, and detaining in safe custody, all copies of the libel in question, which shall be in the possession of the convicted party, or of any other person named in the order for his use ; which order the peace officer may, during the day time, execute by force; but, in case of the arrest or the reversal of the judgment, the copies so seized shall be restored, free of expense, to the party from whom they were taken. The statute further enacts that a person convicted a second time of the offence of such libelling as above mentioned, shall be liable, at the discretion of the court, either to suffer the other punishments inflicted by the law in cases of high misdemeanours, or to be banished from the king's dominions for such term of years as the court shall order; and, if the convict thus banished, is afterwards found at large in any part of the king's dominions, he may be transported for any term not exceeding fourteen years. These statutes, unlike the act against seditious assemblies, are permanent laws.
After the length of observation with which we prefaced our account of the last-mentioned statutes, it will not be expected that we should enter into an examination of the particular objections which have been urged against them. They are liable only to one objection of any apparent weight. The restrictions, it is said, imposed by these acts, and particularly the exaction of a pecuniary security from the publishers of political pamphlets, may, in some possible cases, oppose obstacles to the diffusion of political knowledge, or cramp the literary efforts of unfriended genius. But, unfortunately, this is an objection applying more or less to all regulations affecting the license of the press; to the old law of libel, to the new law of libel, and to every law of libel, that can be devised; for restraint is the price we must pay for all civil liberty. The real question is not, whether cases of hardship may not possibly occur; but whether they are likely to be so frequent, and of such extremity as to outweigh the evils intended to be remedied by the demand of a security; the evils of an under-press
, conducted by men alike bankrupt in fortune and in principle-men secure in their abjectness, from one half of the vengeance of those laws which they outrage and defy, and who, without any assignable stake in the prosperity of the state, but, on the contrary, prepared to support a guilty existence by feeding on its vitals, yet derive from the exercise of their vile literature, an extent of influence, seldom afforded to high education and unstained character. Is it fitting that the happiness of thousands should thus be put to hazard at the pleasure of those who refuse to risk any thing themselves? Or does the law act unjustly, in demanding pledges of good conduct, where it has bestowed or permitted the enjoyment of great power?
The objections, indeed, urged against these statutes have in some cases been stated with a largeness which would absolutely destroy all legislation on the subject of the press, however cautiously or temperately exercised. For if it be true, that the state is under no circumstances to interfere with the market for literary exertion; if the system of a free press, like that of nature, has such a self-adjusting, self-compensating power, that no disturbances can arise from its movements, of which it does not itself furnish the correctives, it will then inevitably follow, that all laws in regulation of printing and publishing, whether they be of a prevemive or a puntitive nature, whether they demand securities or inflict penalties, are equally against principle, and preposterous. In fact, this is nearly the doctrine of the white-hatted party themselves; the philosophy of such statesmen as the Black Dwarf and the Examiner. These persons hold, that in matters of religion at least, speech, no less than thought, ought to be perfectly exempt from legal control; that every man should be free, not only to follow his own religious notions, but to ridicule and vilify the creed of