ought to be repressed; but to whom dare we commit the care of doing it?
An evil magistrate, intrusted with power to _punish for words_, would be
armed with a weapon the most destructive and terrible. Under pretence of
pruning off the exuberant branches, he would be apt to destroy the tree.
It is certain that he who robs another of his moral reputation, more
richly merits a gibbet than if he had plundered him of his purse on the
highway. _Augustus Cæsar_, under the specious pretext of preserving the
character of the Romans from defamation, introduced the law whereby
libelling was involved in the penalties of treason against the state.
This law established his tyranny; and for one mischief which it
prevented, ten thousand evils, horrible and afflicting, sprung up in its
place. Thenceforward every person's life and fortune depended on the
vile breath of informers. The construction of words being arbitrary, and
left to the decision of the judges, no man could write or open his mouth
without being in danger of forfeiting his head.
One was put to death for inserting in his history the praises of Brutus.
Another for styling Cassius the last of the Romans. Caligula valued
himself for being a notable dancer; and to deny that he excelled in that
manly accomplishment was high treason. This emperor raised his horse,
the name of which was _Incitatus_, to the dignity of consul; and though
history is silent, I do not question but it was a capital crime to show
the least contempt for that high officer of state! Suppose, then, any
one had called the prime minister a _stupid animal_, the emperor's
council might argue that the malice of the libel was the more aggravated
by its being true, and, consequently, more likely to excite the _family
of this illustrious magistrate_ to a breach of the peace or to acts of
revenge. Such a prosecution would to us appear ridiculous; yet, if we
may rely upon tradition, there have been formerly proconsuls in America,
though of more malicious dispositions, hardly superior in understanding
to the consul _Incitatus_, and who would have thought themselves
libelled to be called by their _proper names_.
_Nero_ piqued himself on his fine voice and skill in music: no doubt a
laudable ambition! He performed in public, and carried the prize of
excellence. It was afterward resolved by all the judges as good law,
that whosoever would _insinuate_ the least doubt of Nero's pre-eminence
in the _noble art of fiddling_ ought to be deemed a traitor to the
state.
By the help of inferences and innuendoes, treasons multiplied in a
prodigious manner. Grief was treason: a lady of noble birth was put to
death for bewailing the death of her _murdered son_: silence was
declared an _overt act_ to prove the treasonable purposes of the heart:
looks were construed into treason: a serene, open aspect was an evidence
that the person was pleased with the calamities that befel the emperor:
a severe, thoughtful countenance was urged against the man that wore it
as a proof of his plotting against the state: _dreams_ were often made
capital offences. A new species of informers went about Rome,
insinuating themselves into all companies to fish out their dreams,
which the priests (oh nefarious wickedness!) interpreted into high
treason. The Romans were so terrified by this strange method of
juridical and penal process, that, far from discovering their dreams,
they durst not own that they slept. In this terrible situation, when
every one had so much cause to fear, even _fear_ itself was made a
crime. Caligula, when he put his brother to death, gave it as a reason
to the Senate that the youth was afraid of being murdered. To be eminent
in any virtue, either civil or military, was the greatest crime a man
could be guilty of. _O virtutes certissemum exitium._[4]
[4] Oh virtue! the most certain ruin.
These were some of the effects of the Roman law against libelling: those
of the British kings that aimed at despotic power or the oppression of
the subject, continually encouraged prosecutions for words.
Henry VII., a prince mighty in politics, procured that act to be passed
whereby the jurisdiction of the Star Chamber was confirmed and extended.
Afterward Empson and Dudley, two voracious dogs of prey, under the
protection of this high court, exercised the most merciless acts of
oppression. The subjects were terrified from uttering their griefs while
they saw the thunder of the Star Chamber pointed at their heads. This
caution, however, could not prevent several dangerous tumults and
insurrections; for when the tongues of the people are restrained, they
commonly discharge their resentments by a more dangerous organ, and
break out into open acts of violence.
During the reign of Henry VIII., a high-spirited monarch! every light
expression which happened to displease him was construed by his supple
judges into a libel, and sometimes extended to high treason. When Queen
Mary, of cruel memory, ascended the throne, the Parliament, in order to
raise a _fence_ against the violent prosecutions for words, which had
rendered the lives, liberties, and properties of all men precarious,
and, perhaps, dreading the furious persecuting spirit of this princess,
passed an act whereby it was declared, "That if a libeller doth go so
high as to libel against king or queen by denunciation, the judges shall
lay no greater fine on him than one hundred pounds, with two months'
imprisonment, and no corporeal punishment: neither was this sentence to
be passed on him except the accusation was fully proved by two
witnesses, who were to produce a certificate of their good demeanour for
the credit of their report."
This act was confirmed by another, in the seventh year of the reign of
Queen Elizabeth; only the penalties were heightened to two hundred
pounds and three months' imprisonment. Notwithstanding she rarely
punished invectives, though the malice of the papists was indefatigable
in blackening the brightest characters with the most impudent
falsehoods, she was often heard to applaud that rescript of
_Theodosius_. If any person spoke ill of the emperor through a foolish
rashness and inadvertence, it is to be despised; if out of madness, it
deserves pity; if from malice and aversion, it calls for mercy.
Her successor, King James I., was a prince of a quite different genius
and disposition; he used to say, that while he had the power of making
judges and bishops, _he could have what law and gospel he pleased_.
Accordingly, he filled those places with such as prostituted their
professions to his notions of prerogative. Among this number, and I hope
it is no discredit to the profession of the law, its great oracle, _Sir
Edward Coke_, appears. The Star Chamber, which in the time of Elizabeth
had gained a good repute, became an intolerable grievance in the reign
of this _learned monarch_.
But it did not arrive at its meridian altitude till Charles I. began to
wield the sceptre. As he had formed a design to lay aside parliaments
and subvert the popular part of the constitution, he very well knew
that the form of government could not be altered without laying a
restraint on freedom of speech and the liberty of the press: therefore
he issued his royal mandate, under the great seal of England, whereby he
commanded his subjects, under pain of his displeasure, not to prescribe
to him any time for parliaments. Lord Clarendon, upon this occasion, is
pleased to write, "That all men took themselves to be prohibited, under
the penalty of censure (the censure of the Star Chamber), which few men
cared to incur, so much as to speak of parliaments, or so much as to
mention that parliaments were again to be called."
The king's ministers, to let the nation see they were absolutely
determined to suppress all freedom of speech, caused a prosecution to be
carried on by the attorney general against three members of the House of
Commons, for words spoken in that house, Anno 1628. The members pleaded
to the information, that expressions in parliament ought only to be
examined and punished there. This notwithstanding, _they were all three
condemned as disturbers of the state_; one of these gentlemen, Sir John
Eliot, was fined two thousand pounds, and sentenced to lie in prison
till it was paid. His lady was denied admittance to him, even during his
sickness; consequently, his punishment comprehended an additional
sentence of divorce. This patriot, having endured many years
imprisonment, sunk under the oppression, and died in prison: this was
such a wound to the authority and rights of Parliament that, even after
the restoration, the judgment was revered by Parliament.
That Englishmen of all ranks might be effectually intimidated from
publishing their thoughts on any subject, except on the side of the
court, his majesty's ministers caused an information, for several
libels, to be exhibited in the Star Chamber against Messrs. _Prynn_,
_Burton_, and _Bastwick_. They were each of them fined five thousand
pounds, and adjudged to lose their ears on the pillory, to be branded on
the cheeks with hot irons, and to suffer perpetual imprisonment! Thus
these three gentlemen, each of worth and quality in their several
professions, viz., divinity, law, and physic, were, for no other offence
than writing on controverted points of church government, exposed on
public scaffolds, and stigmatized and mutilated as common signal rogues
or the most ordinary malefactors.
Such corporeal punishments, inflicted with all the circumstances of
cruelty and infamy, bound down all other gentlemen under a servile fear
of like treatment; so that, for several years, no one durst publicly
speak or write in defence of the liberties of the people; which the
king's ministers, his privy council, and his judges, had trampled under
their feet. The spirit of the administration looked hideous and
dreadful; the hate and resentment which the people conceived against it,
for a long time lay smothered in their breasts, where those passions
festered and grew venomous, and at last discharged themselves by an
armed and vindictive hand.
King Charles II. aimed at the subversion of the government, but
concealed his designs under a deep hypocrisy: a method which his
predecessor, in the beginning of his reign, scorned to make use of. The
father, who affected a high and rigid gravity, discountenanced all
barefaced immorality. The son, of a gay, luxurious disposition, openly
encouraged it: thus their inclinations being different, the restraint
laid on some authors, and the encouragement given to others, were
managed after a different manner.
In this reign a licenser was appointed for the stage and the press; no
plays were encouraged but what had a tendency to debase the minds of the
people. The original design of comedy was perverted; it appeared in all
the shocking circumstances of immodest _double entendre_, obscure
description, and lewd representation. Religion was sneered out of
countenance, and public spirit ridiculed as an awkward oldfashioned
virtue; the fine gentleman of the comedy, though embroidered over with
wit, was a consummate debauchee; and a fine lady, though set off with a
brilliant imagination, was an impudent coquette. Satire, which in the
hands of _Horace_, _Juvenal_, and _Boileau_, was pointed with a generous
resentment against vice, now became the declared foe of virtue and
innocence. As the city of London, in all ages, as well as the time we
are now speaking of, was remarkable for its opposition to arbitrary
power, the poets levelled all their artillery against the metropolis, in
order to bring the citizens into contempt: an alderman was never
introduced on the theatre but under the complicated character of a
sneaking, canting hypocrite, a miser, and a cuckold; while the
court-wits, with impunity, libelled the most valuable part of the
nation. Other writers, of a different stamp, with great learning and
gravity, endeavoured to prove to the English people that slavery was
_jure divino_.[5] Thus the stage and the press, under the direction of a
licenser, became battering engines against religion, virtue, and
liberty. Those who had courage enough to write in their defence, were
stigmatized as schismatics, and punished as disturbers of the
government.
[5] By divine right.
But when the embargo on wit was taken off, _Sir Richard Steel_ and _Mr.
Addison_ soon rescued the stage from the load of impurity it laboured
under with an inimitable address, they strongly recommended to our
imitation the most amiable, rational manly characters; and this with so
much success that I cannot suppose there is any reader to-day conversant
in the writings of those gentlemen, that can taste with any tolerable
relish the comedies of the once admired _Shadwell_. Vice was obliged to
retire and give place to virtue: this will always be the consequence
when truth has fair play: falsehood only dreads the attack, and cries
out for auxiliaries: the truth never fears the encounter: she scorns the
aid of the secular arm, and triumphs by her natural strength.
But, to resume the description of the reign of Charles II., the doctrine
of servitude was chiefly managed by _Sir Roger Lestrange_. He had great
advantages in the argument, being licenser for the press, and might have
carried all before him without contradiction, if writings on the other
side of the question had not been printed by stealth. The authors,
whenever found, were prosecuted as seditious libellers; on all these
occasions the king's counsel, particularly _Sawyer_ and _Finch_,
appeared most obsequious to accomplish the ends of the court.
During this _blessed_ management, the king had entered into a secret
league with France to render himself absolute and enslave his subjects.
This fact was discovered to the world by Dr. _Jonathan Swift_, to whom
_Sir William Temple_ had intrusted the publication of his works.
_Sidney_, the sworn foe of tyranny, was a gentleman of noble family, of
sublime understanding and exalted courage. The ministry were resolved to
remove so great an obstacle out of the way of their designs. He was
prosecuted for high treason. The overt act charged in the indictment was
a libel found in his private study. Mr. Finch, the king's own
solicitor-general, urged with great vehemence to this effect, "that the
_imagining_ the death of the king is _treason_, even while that
imagination remains concealed in the mind, though the law cannot punish
such secret treasonable thoughts till it arrives at the knowledge of
them by some overt act. That the matter of the libel composed by Sidney
was an _imagining how to compass the death of King Charles II._; and
the writing of it was an overt act of treason, for that to write was to
act. (_Scribere est agere._)" It seems that the king's counsel in this
reign had not received the same directions as Queen Elizabeth had given
hers; she told them they were to look upon themselves as not retained so
much (_pro domina regina_, as _pro domina veritate_) for the power of
the queen as for the power of truth.
Mr. Sidney made a strong and legal defence. He insisted that all the
words in the book contained no more than general speculations on the
principles of government, free for any man to write down; especially
since the same are written in the parliament rolls and in the statute
laws.
He argued on the injustice of applying by innuendoes, general assertions
concerning principles of government, as overt acts to prove the writer
was compassing the death of the king; for then no man could write of
things done even by our ancestors, in defence of the constitution and
freedom of England, without exposing himself to capital danger.
He denied that _scribere est agere_, but allowed that writing and
publishing is to act (_Scribere et publicare est agere_), and therefore
he urged that, as his book had never been published nor imparted to any
person, it could not be an overt act, within the statutes of treasons,
even admitting that it contained treasonable positions; that, on the
contrary, it was a _covert fact_, locked up in his private study, as
much concealed from the knowledge of any man as if it were locked up in
the author's mind. This was the substance of Mr. Sidney's defence: but
neither law, nor reason, nor eloquence, nor innocence ever availed where
_Jefferies_ sat as judge. Without troubling himself with any part of the
defence, he declared in a rage, that Sidney's _known principles_ were a
_sufficient_ proof of his intention to compass the death of the king.
A packed jury therefore found him guilty of high treason: great
applications were made for his pardon. He was executed as a traitor.
This case is a pregnant instance of the danger that attends a law for
punishing words, and of the little security the most valuable men have
for their lives, in that society where a judge, by remote inferences and
distant innuendoes, may construe the most innocent expressions into
capital crimes. _Sidney_, the British _Brutus_, the warm, the steady
friend of _liberty_; who, from an intrinsic love to mankind, left them
that invaluable legacy, his immortal discourses on government, was for
these very discourses murdered by the hands of lawless power. * * * *
Upon the whole, to suppress inquiries into the administration is good
policy in an arbitrary government; but a free constitution and freedom
of speech have such reciprocal dependance on each other, that they
cannot subsist without consisting together.
* * * * *
The following extracts of a letter, signed Columella, and addressed to
the editors of the British Repository for select Papers on Agriculture,
Arts, and Manufactures (see vol. i.), will prepare those who read it for
the following paper:
"GENTLEMEN,--There is now publishing in France a periodical work, called
Ephemeridis du Citoyen,[6] in which several points, interesting to those
concerned in agriculture, are from time to time discussed by some able
hands. In looking over one of the volumes of this work a few days ago, I
found a little piece written by one of our countrymen, and which our
vigilant neighbours had taken from the London Chronicle in 1766. The
author is a gentleman well known to every man of letters in Europe, and
perhaps there is none in this age to whom mankind in general are more
indebted.
[6] Citizen's Journal.
"That this piece may not be lost to our own country, I beg you will give
it a place in your Repository: it was written in favour of the farmers,
when they suffered so much abuse in our public papers, and were also
plundered by the mob in many places."
* * * * *
_To Messieurs the Public._
ON THE PRICE OF CORN, AND THE MANAGEMENT OF THE POOR.
I am one of that class of people that feeds you all, and at present
abused by you all; in short, I am a _farmer_.
By your newspapers we are told that God had sent a very short harvest to
some other countries of Europe. I thought this might be in favour of Old
England, and that now we should get a good price for our grain, which
would bring millions among us, and make us flow in money: that, to be
sure, is scarce enough.
But the wisdom of government forbade the exportation.
Well, says I, then we must be content with the market price at home.
No, say my lords the mob, you sha'n't have that. Bring your corn to
market if you dare; we'll sell it for you for less money, or take it for
nothing.
Being thus attacked by both ends _of the constitution_, the head and
tail _of government_, what am I to do?
Must I keep my corn in the barn, to feed and increase the breed of rats?
Be it so; they cannot be less thankful than those I have been used to
feed.
Are we farmers the only people to be grudged the profits of our honest
labour? And why? One of the late scribblers against us gives a bill of
fare of the provisions at my daughter's wedding, and proclaims to all
the world that we had the insolence to eat beef and pudding! Has he not
read the precept in the good book, _thou shall not muzzle the mouth of
the ox that treadeth out the corn_; or does he think us less worthy of
good living than our oxen?
Oh, but the manufacturers! the manufacturers! they are to be favoured,
and they must have bread at a cheap rate!
Hark ye, Mr. Oaf: The farmers live splendidly, you say. And, pray, would
you have them hoard the money they get? Their fine clothes and
furniture, do they make themselves or for one another, and so keep the
money among them? Or do they employ these your darling manufacturers,
and so scatter it again all over the nation?
The wool would produce me a better price if it were suffered to go to
foreign markets; but that, Messieurs the Public, your laws will not
permit. It must be kept all at home, that our _dear_ manufacturers may
have it the cheaper. And then, having yourselves thus lessened our
encouragement for raising sheep, you curse us for the scarcity of
mutton!
I have heard my grandfather say, that the farmers submitted to the
prohibition on the exportation of wool, being made to expect and believe
that, when the manufacturer bought his wool cheaper, they should also
have their cloth cheaper. But the deuse a bit. It has been growing
dearer and dearer from that day to this. How so? Why, truly, the cloth
is exported: and that keeps up the price.
Now if it be a good principle that the exportation of a commodity is to
be restrained, that so our people at home may have it the cheaper, stick
to that principle, and go thorough stitch with it. Prohibit the
exportation of your cloth, your leather and shoes, your ironware, and
your manufactures of all sorts, to make them all cheaper at home. And
cheap enough they will be, I will warrant you, till people leave off
making them.
Some folks seem to think they ought never to be easy till England
becomes another Lubberland, where it is fancied the streets are paved
with penny-rolls, the houses tiled with pancakes, and chickens, ready
roasted, cry, Come eat me.
I say, when you are sure you have got a good principle, stick to it and
carry it through. I hear it is said, that though it was _necessary and
right_ for the ministry to advise a prohibition of the exportation of
corn, yet it was _contrary to law_; and also, that though it was
_contrary to law_ for the mob to obstruct wagons, yet it was _necessary
and right_. Just the same thing to a tittle. Now they tell me an act of
indemnity ought to pass in favour of the ministry, to secure them from
the consequences of having acted illegally. If so, pass another in
favour of the mob. Others say, some of the mob ought to be hanged, by
way of example. If so--but to say no more than I have said before, _when
you are sure that you have a good principle, go through with it_.
You say poor labourers cannot afford to buy bread at a high price,
unless they had higher wages. Possibly. But how shall we farmers be able
to afford our labourers higher wages, if you will not allow us to get,
when we might have it, a higher price for our corn?
By all that I can learn, we should at least have had a guinea a quarter
more if the exportation had been allowed. And this money England would
have got from foreigners.
But, it seems, we farmers must take so much less that the poor may have
it so much cheaper.
This operates, then, as a tax for the maintenance of the poor. A very
good thing, you will say. But I ask, why a partial tax? why laid on us
farmers only? If it be a good thing, pray, Messieurs the Public, take
your share of it, by indemnifying us a little out of your public
treasury. In doing a good thing there is both honour and pleasure; you
are welcome to your share of both.