By Professor Stephen D. Solomon, Editor, First Amendment Watch
Two British journalists, John Trenchard and Thomas Gordon, launched a series of letters published in the London Journal on November 3, 1720. The two writers, who published under the pseudonym “Cato,” opposed the government on many issues including financial scandals, the nature and causes of tyranny, and the importance of liberty. In 138 essays over a period of three years, they argued with passion and called on John Locke and other writers claiming that the people held inalienable rights derived from nature. As they stated in Letter 59, “All men are born free. Liberty is a gift which they receive from god himself.” Thus the sovereign ruler must use his authority to protect his subjects, and engages in despotism when he imposes constraints on liberty that extend beyond what is necessary to enforce the contract that people enter into to create a civil society.
Cato’s Letters were reprinted widely in the American press to oppose many British measures that the colonists felt violated their rights. Newspapers often quoted from Cato’s Letters and even reprinted entire essays to support their claims for freedom of the press. As Cato wrote in Letter 15, “in those wretched countries where a man cannot call his tongue his own, he can scarce call any thing else his own. Whoever would overthrow the liberty of the nation, must begin by subduing the freedom of speech; a thing terrible to publick traitors.”
15. SATURDAY, FEBRUARY 4, 1721. Of Freedom of Speech: That the same is inseparable from publick Liberty. (Gordon)
Without freedom of thought, there can be no such thing as wisdom; and no such thing as publick liberty, without freedom of speech: Which is the right of every man, as far as by it he does not hurt and control the right of another; and this is the only check which it ought to suffer, the only bounds which it ought to know.
This sacred privilege is so essential to free government, that the security of property; and the freedom of speech, always go together; and in those wretched countries where a man cannot call his tongue his own, he can scarce call any thing else his own. Whoever would overthrow the liberty of the nation, must begin by subduing the freedom of speech; a thing terrible to publick traitors.
This secret was so well known to the court of King Charles I that his wicked ministry procured a proclamation to forbid the people to talk of Parliaments, which those traitors had laid aside. To assert the undoubted right of the subject, and defend his Majesty’s legal prerogative, was called disaffection, and punished as sedition. Nay, people were forbid to talk of religion in their families: For the priests had combined with the ministers to cook up tyranny, and suppress truth and the law. While the late King James, when Duke of York, went avowedly to mass; men were fined, imprisoned, and undone, for saying that he was a papist: And, that King Charles II might live more securely a papist, there was an act of Parliament made, declaring it treason to say that he was one.
That men ought to speak well of their governors, is true, while their governors deserve to be well spoken of; but to do publick mischief, without hearing of it, is only the prerogative and felicity of tyranny: A free people will be shewing that they are so, by their freedom of speech.
The administration of government is nothing else, but the attendance of the trustees of the people upon the interest and affairs of the people. And as it is the part and business of the people, for whose sake alone all publick matters are, or ought to be, transacted, to see whether they be well or ill transacted; so it is the interest, and ought to be the ambition, of all honest magistrates, to have their deeds openly examined, and publickly scanned: Only the wicked governors of men dread what is said of them; Audivit Tiberius probra queis lacerabitur, atque perculsus est. The publick censure was true, else he had not felt it bitter.
Freedom of speech is ever the symptom, as well as the effect, of good government. In old Rome, all was left to the judgment and pleasure of the people; who examined the publick proceedings with such discretion, and censured those who administered them with such equity and mildness, that in the space of three hundred years, not five publick ministers suffered unjustly. Indeed, whenever the commons proceeded to violence, the great ones had been the aggressors.
Guilt only dreads liberty of speech, which drags it out of its lurking holes, and exposes its deformity and horror to day-light. Horatius, Valerius, Cincinnatus, and other virtuous and undesigning magistrates of the Roman commonwealth, had nothing to fear from liberty of speech. Their virtuous administration, the more it was examined, the more it brightened and gained by enquiry. When Valerius, in particular, was accused, upon some slight grounds, of affecting the diadem; he, who was the first minister of Rome, did not accuse the people for examining his conduct, but approved his innocence in a speech to them; he gave such satisfaction to them, and gained such popularity to himself, that they gave him a new name; inde cognomen factum Publicolae est; to denote that he was their favourite and their friend. Latae deinde leges. Ante omnes de provocatione, adversus magistratus ad populum, Livii lib. ii. cap. 8.
The best princes have ever encouraged and promoted freedom of speech; they knew that upright measures would defend themselves, and that all upright men would defend them. Tacitus, speaking of the reigns of some of the princes above-mention’d, says with ecstasy, Rara temporum felicitate, ubi sentire quae velis, & quae sentias dicere liceat: A blessed time, when you might think what you would, and speak what you thought!
The same was the opinion and practice of the wise and virtuous Timoleon, the deliverer of the great city of Syracuse from slavery. He being accused by Demoenetus, a popular orator, in a full assembly of the people, of several misdemeanors committed by him while he was general, gave no other answer, than that he was highly obliged to the gods for granting him a request that he had often made to them; namely, that he might live to see the Syracusians enjoy that liberty of speech which they now seemed to be masters of.
And that great commander, M. Marcellus, who won more battles than any Roman captain of his age, being accused by the Syracusians, while he was now a fourth time consul, of having done them indignities and hostile wrongs, contrary to the League, rose from his seat in the Senate, as soon as the charge against him was opened, and passing (as a private man) into the place where the accused were wont to make their defence, gave free liberty to the Syracusians to impeach him: Which, when they had done, he and they went out of the court together to attend the issue of the cause: Nor did he express the least ill-will or resentment towards these his accusers; but being acquitted, received their city into his protection. Had he been guilty, he would neither have shewn such temper nor courage.
I doubt not but old Spencer and his son, all honest men in England. They dreaded to be called traitors, because they were traitors. And I dare say, Queen Elizabeth’s Walsingham, who deserved no reproaches, feared none. Misrepresentation of publick measures is easily overthrown, by representing publick measures truly: When they are honest, they ought to be publickly known, that they may be publickly commended; but if they be knavish or pernicious, they ought to be publickly exposed, in order to be publickly detested.
To assert, that King James was a papist and a tyrant, was only so far hurtful to him, as it was true of him; and if the Earl of Strafford had not deserved to be impeached, he need not have feared a bill of attainder. If our directors and their confederates be not such knaves as the world thinks them, let them prove to all the world, that the world thinks wrong, and that they are guilty of none of those villainies which all the world lays to their charge. Others too, who would be thought to have no part of their guilt, must, before they are thought innocent, shew that they did all that was in their power to prevent that guilt, and to check their proceedings.
Freedom of speech is the great bulwark of liberty; they prosper and die together: And it is the terror of traitors and oppressors, and a barrier against them. It produces excellent writers, and encourages men of fine genius. Tacitus tells us, that the Roman commonwealth bred great and numerous authors, who writ with equal boldness and eloquence: But when it was enslaved, those great wits were no more. Postquam bellatum apud Actium; atque omnem potestatem ad unum conferri pacis interfuit, magna illa ingenia cessere. Tyranny had usurped the place of equality, which is the soul of liberty, and destroyed publick courage. The minds of men, terrified by unjust power, degenerated into all the vileness and methods of servitude: Abject sycophancy and blind submission grew the only means of preferment, and indeed of safety; men durst not open their mouths, but to flatter.
Pliny the Younger observes, that this dread of tyranny had such effect, that the Senate, the great Roman Senate, became at last stupid and dumb: Mutam ac sedentariam assentiendi necessitatem. Hence, says he, our spirit and genius are stupified, broken, and sunk for ever. And in one of his epistles, speaking of the works of his uncle, he makes an apology for eight of them, as not written with the same vigour which was to be found in the rest; for that these eight were written in the reign of Nero, when the spirit of writing was cramped by fear; Dubii sermonis octo scripset sub Nerone—cum omne studiorum genus paulo liberius & erectius periculosum servitus fecisset.
All ministers, therefore, who were oppressors, or intended to be oppressors, have been loud in their complaints against freedom of speech, and the licence of the press; and always restrained, or endeavoured to restrain, both. In consequence of this, they have brow-beaten writers, punished them violently, and against law, and burnt their works. By all which they shewed how much truth alarmed them, and how much they were at enmity with truth.
There is a famous instance of this in Tacitus: He tells us, that Cremutius Cordus, having in his Annals praised Brutus and Cassius, gave offence to Sejanus, first minister, and to some inferior sycophants in the court of Tiberius; who, conscious of their own characters, took the praise bestowed on every worthy Roman, to be so many reproaches pointed at themselves: They therefore complained of the book to the Senate; which, being now only the machine of tyranny, condemned it to be burnt. But this did not prevent its spreading. Libros cremandos censuere patres; sed manserunt occultati & editi: Being censured, it was the more sought after. “From hence,” says Tacitus, “we may wonder at the stupidity of those statesmen, who hope to extinguish, by the terror of their power, the memory of their actions; for quite otherwise, the punishment of good writers gains credit to their writings:” Nam contra, punitis ingeniis, gliscit auctoritas. Nor did ever any government, who practised impolitick severity, get any thing by it, but infamy to themselves, and renown to those who suffered under it. This also is an observation of Tacitus: Neque aliud [externi] reges, [aut] qui ea[dem] saevitiae usi sunt, nisi dedecus sibi, atque gloriam illis peperere.
Freedom of speech, therefore, being of such infinite importance to the preservation of liberty, every one who loves liberty ought to encourage freedom of speech. Hence it is that I, living in a country of liberty, and under the best prince upon earth, shall take this very favourable opportunity of serving mankind, by warning them of the hideous mischiefs thatthey will suffer, if ever corrupt and wicked men shall hereafter get possession of any state, and the power of betraying their master: And, in order to dothis, I will shew them by what steps they will probably proceed to accomplishtheir traitorous ends. This may be the subject of my next.
Valerius Maximus tells us, that Lentulus Marcellinus, the Roman consul, having complained, in a popular assembly, of the overgrown power of Pompey; the whole people answered him with a shout of approbation: Upon which the consul told them, “Shout on, gentlemen, shout on, and use those bold signs of liberty while you may; for I do not know how long they will be allowed you.”
God be thanked, we Englishmen have neither lost our liberties, nor are in danger of losing them. Let us always cherish this matchless blessing, almost peculiar to ourselves; that our posterity may, many ages hence, ascribe their freedom to our zeal. The defence of liberty is a noble, a heavenly office; which can only be performed where liberty is: For, as the same Valerius Maximus observes, Quid ergo libertas sine Catone? non magis quam Cato sine libertate.
- I am, &c.
32. SATURDAY, JUNE 10, 1721. Reflections upon Libelling. (Gordon)
I design in this letter to lay before the town some thoughts upon libelling; a sort of writing that hurts particular persons, without doing good to the publick; and a sort of writing much complained of amongst us at this time, with great ground, but not more than is pretended.
A libel is not the less a libel for being true. This may seem a contradiction; but it is neither one in law, or in common sense: There are some truths not fit to be told; where, for example, the discovery of a small fault may do great mischief; or where the discovery of a great fault can do no good, there ought to be no discovery at all: And to make faults where there are none, is still worse.
But this doctrine only holds true as to private and personal failings; and it is quite otherwise when the crimes of men come to affect the publick. Nothing ought to be so dear to us as our country, and nothing ought to come in competition with its interests. Every crime against the publick is a great crime, though there be some greater than others. Ignorance and folly may be pleaded in alleviation of private offences; but when they come to be publick offences, they lose all benefit of such a plea: We are then no longer to consider only to what causes they are owing, but what evils they may produce; and here we shall readily find, that folly has overturned states, and private ignorance been the parent of publick confusion.
The exposing therefore of publick wickedness, as it is a duty which every man owes to truth and his country, can never be a libel in the nature of things; and they who call it so, make themselves no compliment. He who is affronted at the reading of the ten commandments, would make the decalogue a libel, if he durst; but he tempts us at the same time to form a judgment of his life and morals not at all to his advantage: Whoever calls publick and necessary truths, libels, does but apprize us of his own character, and arm us with caution against his designs. I doubt not but if the late directors had been above the Parliament, as they once thought themselves, they would have called the votes of the House of Commons against them, false and scandalouslibels.
Machiavel says, Calumny is pernicious, but accusation beneficial, to a state; and he shews instances where states have suffered or perished for not having, or for neglecting, the power to accuse great men who were criminals, or thought to be so; and hence grew the temptation and custom of slandering and reviling, which was the only remedy that the people had left them: So that the evil of calumny was owing to the want of justice, and the people were more blameless than those whom they reviled; who, having forced them upon a licentiousness of speech, did very unkindly chide and punish them for using it. Slander is certainly a very base and mean thing: But surely it cannot be more pernicious to calumniate even good men, than not to be able to accuse ill ones.
I have long thought, that the world are very much mistaken in their idea and distinction of libels. It has been hitherto generally understood that there were no other libels but those against magistrates, and those against private men: Now, to me there seems to be a third sort of libels, full as destructive as any of the former can possibly be; I mean, libels against the people. Itwas otherwise at Athens and Rome; where, though particular men, and even great men, were often treated with much freedom and severity, when they deserved it; yet the people, the body of the people, were spoken of with the utmost regard and reverence: “The sacred privileges of the people,” “The inviolable majesty of the people,” “The awful authority of the people,” and “The unap-pealable judgment of the people,” were phrases common in these wise, great, and free cities. Other modes of speech are since grown fashionable, and popular madness is now almost proverbial: But this madness of theirs, whenever it happens, is derived from external causes. Oppression, they say, will make a wise man mad; and delusion has not less force: But where there are neither oppressors nor impostors, the judgment of the people in the business of property, the preservation of whichis the principal business of government, does rarely err. Perhaps they are destituteof grimace, mystery, refinements, shrugs, dissimulation, and reserve, and theother accomplishments of courtiers: But as these are only masks to conceal theabsence of honesty and sense, the people, who possess as they do the substance, have reason to despise such insipid and contemptible shadows.
Machiavel, in the chapter where he proves that a multitude is wiser and more constant than a prince, complains, that the credit which the people should be in declines daily; for, says he, every man has liberty to speak what he pleases against them; but against a prince no man can talk without a thousand apprehensions and dangers. I have indeed often wondered, that the inveighing against the interest of the people, and calling their liberties in question, as has been and is commonly done among us by old knaves and young fools, has never been made an express crime.
I must own, I know not what treason is, if sapping and betraying the liberties of a people be not treason, in the eternal and original nature of things. Let it be remembered for whose sake government is, or could be, appointed; then let it be considered, who are more to be regarded, the governors or the governed. They indeed owe one another mutual duties; but if there be any transgressions committed, the side that is most obliged ought doubtless to bear the most: And yet it is so far otherwise, that almost all over the earth, the people, for one injury that they do their governors, receive ten thousand from them: Nay, in some countries, it is made death and damnation, not to bear all the oppressions and cruelties, which men made wanton by power inflict upon those that gave it them.
The truth is; if the people are suffered to keep their own, it is the most that they desire: But even this is a happiness which in few places falls to their lot; they are frequently robbed by those whom they pay to protect them. I know that it is a general charge against the people, that they are turbulent, restless, fickle, and unruly: Than which there can be nothing more untrue; for they are only so where they are made so. As to their being fickle, it is so false, that, on the contrary, they have almost ever a strong bent to received customs, and as strong a partiality to names and families that they have been used to: And as to their being turbulent, it is as false; since there is scarce an example in an hundred years of any people’s giving governors any uneasiness, till their governors had made them uneasy: Nay, for the most part, they bear many evils without returning one, and seldomthrow off their burdens so long as they can stand under them.
But intending to handle this subject more at large in another letter, I return more directly to the business of libels.
As to libels against government, like all others, they are always base and unlawful, and often mischievous; especially when governments are impudently charged with actions and designs of which they are not guilty. It is certain, that we ought not to enter into the private vices or weaknesses of governors, any further than their private vices enter into their publick administration; and when they do, it will be impossible to stop people’s mouths: They will be provoked, and shew that they are so, in spite of art and threats, if they suffer hardships and woe from the private gratifications of their superiors, from whom they have a right to expect ease and happiness; and if they be disappointed, they will be apt to deal very freely with their characters.
In truth, most libels are purely personal; they fly at men rather than things; which proceeding is as injudicious as it is unmanly. It is mean to be quarrelling with faces, names, and private pleasures; things perfectly indifferent to the world, or things out of a man’s own power; and ’tis silly, as it shews those whom we attack, that we attack them not for what they do, but for what they are: And this is to provoke them without mending them. All this therefore is libelling; an offence against which the laws of almost every country, and particularly of our own, have furnished a remedy in proportion to the consequence and quality of the person offended. And it is as just that reputation should be defended by law, as that property should.
The praise of well-doing is the highest reward that worthy and disinterested men aim at, and it is villainous and ungrateful to rob them of it; and those that do it, are libellers and slanderers. On the other hand, while censure and infamy attend evil-doers, it will be some restraint, if not upon them, yet upon others, from following their example: But if men be ever suffered to do what they please without hearing of it, or being accountable for it; liberty and law will be lost, though their names may remain. And whether acting wickedly with impunity, or speaking falsely with impunity, be likely to do most hurt to human society and the peace of the world, I leave all the world to judge: common equity says, that they both ought to be punished, though not both alike.
All libels, the higher they aim, the more malignity they acquire; and therefore when they strike at the person of the prince, the measure of their guilt is complete. The office of a prince is to defend his people and their properties; an excellent and a painful office; which, where it is executed with honesty and diligence, deserves the highest applause and reward; and whoever vilifies and traduces him, is an enemy to society and to mankind, and will be punished with the consent of all who love either. And yet it is scarce possible, in a free country, to punish by a general law any libel so much as it deserves; since such a law, consisting of so many branches, and being of such vast latitude, would make all writing whatsoever, how innocent soever, and even all speaking, unsafe. Hence it is, that in Turkey, though printing were permitted, it would be of no use, because no body would dare to make any use of it.
As long as there are such things as printing and writing, there will be libels: It is an evil arising out of a much greater good. And as to those who are for locking up the press, because it produces monsters, they ought to consider that so do the sun and the Nile; and that it is something better for the world to bear some particular inconveniencies arising from general blessings, than to be wholly deprived of fire and water.
Of all sorts of libels, scurrilous ones are certainly the most harmless and contemptible: Even truth suffers by ill-manners; and ill-manners prevent the effect of lies. The letter in the Saturday’s Post of the 27th past does, I think, exceed all the scurrilities which I have either heard, or seen, from the press or the pulpit. The author of it must surely be mad: he talks as if distraction were in his head, and a firebrand in his hand; and nothing can be more false, than the insinuations which he makes, and the ugly resemblances which he would draw. The paper is a heap of falsehood and treason, delivered in the style and spirit of billingsgate; and indeed most of the enemies to his Majesty’s person, title, and government, have got the faculty of writing and talking, as if they had their education in that quarter.
However, as bad as that letter is (and, I think, there cannot be a worse), occasion will never be taken from scurrilous and traitorous writing, to destroy the end of writing. We know that in all times there have been men lying upon the watch to stifle liberty, under a pretence of suppressing libels; like the late King James, who, having occasion for an army to suppress Monmouth’s Rebellion, would needs keep it up afterwards; because, forsooth, other rebellions might happen, for which he was resolved to give cause.
I must own, that I would rather many libels should escape, than the liberty of the press should be infringed; yet no man in England thinks worse of libels than I do; especially of such as bid open defiance to the present Protestant establishment.
Corrupt men, who have given occasion for reproach, by their base and dark practices with the late directors, being afraid of truths that affect them from the press, may be desirous of shutting it up: But honest men, with clear reputations, which they know foul mouths cannot hurt, will always be for preserving it open, as a sure sign of liberty, and a cause of it.
The best way to escape the virulence of libels, is not to deserve them; but as innocence itself is not secure against the malignity of evil tongues, it is also necessary to punish them. However, it does not follow that the press is to be sunk, for the errors of the press. No body was ever yet so ridiculous to propose a law for restraining people from travelling upon the highway, because some who used the highway committed robberies.
It is commonly said, that no nation in the world would allow such papers to come abroad as England suffers; which is only saying, that no nation in the world enjoys the liberty which England enjoys. In countries where there is no liberty, there can be no ill effects of it. No body is punished at Constantinople for libelling: Nor is there any distinction there between the liberty of the press, and the licentiousness of the press; a distinction ever to be observed by honest men and freemen.
- I am, &c.
100. SATURDAY, OCTOBER 27, 1722. Discourse upon Libels. (Trenchard)
I intend in this, and my next letter, to write a dissertation upon libels, which are liberties assumed by private men, to judge of and censure the actions of their superiors, or such as have possession of power and dignities. When persons, formerly of no superior merit to the rest of their fellow-subjects, came to be possessed of advantages, by means which, for the most part, they condemned in another situation of fortune, they often have grown, on a sudden, to think themselves a different species of mankind; they took it into their heads to call themselves the government, and thought that others had nothing to do but to sit still, to act as they bade them, and to follow their motions; were unwilling to be interrupted in the progress of their ambition, and of making their private fortunes by such ways as they could best and soonest make them; and consequently have called every opposition to their wild and ravenous schemes, and every attempt to preserve the people’s right, by the odious names of sedition and faction, and charged them with principlesand practices inconsistent with the safety of all government.
This liberty has been approved or condemned by all men, and all parties, in proportion as they were advantaged or annoyed by it. When they were in power, they were unwilling to have their actions scanned and censured, and cried out, that such licence ought not to be borne and tolerated in any well-constituted commonwealth; and when they suffered under the weight of power, they thought it very hard not to be allowed the liberty to utter their groans, and to alleviate their pain, by venting some part of it in complaints; and it is certain, that there are benefits and mischiefs on both sides the question.
What are usually called libels, undoubtedly keep great men in awe, and are some check upon their behaviour, by shewing them the deformity of their actions, as well as warning other people to be upon their guard against oppression; and if there were no further harm in them, than in personally attacking those who too often deserve it, I think the advantages which such persons receive will fully atone for the mischiefs which they suffer. But I confess, that libels may sometimes though very rarely, foment popular and perhaps causeless discontents, blast and obstruct the best measures, and now and then promote insurrections and rebellions; but these latter mischiefs are much seldomer produced than the former benefits; for power has so many advantages, so many gifts and allurements to bribe those who bow to it, and so many terrors to frighten those who oppose it; besides the constant reverence and superstition ever paid to greatness, splendor, equipage, and the shew of wisdom, as well as the natural desire which all or most men have to live in quiet, and the dread which they have of publick disturbances, that I think I may safely affirm, that much more is to be feared from flattering great men, than detracting from them.
However, it is to be wished, that both could be prevented; but since that is not in the nature of things, whilst men have desires or resentments, we are next to consider how to prevent the great abuse of it, and, as far as human prudence can direct, preserve the advantages of liberty of speech, and liberty of writing (which secures all other liberties) without giving more indulgence to detraction than is necessary to secure the other: For it is certainly of much less consequence to mankind, that an innocent man should be now and then aspersed, than that all men should be enslaved.
Many methods have been tried to remedy this evil: In Turkey, and in the eastern monarchies, all printing is forbidden; which does it with a witness: for if there can be no printing at all, there can be no libels printed; and by the same reason there ought to be no talking, lest people should talk treason, blasphemy, or nonsense; and, for a stronger reason yet, no preaching ought to be allowed, because the orator has an opportunity of haranguing often to a larger auditory than he can persuade to read his lucubrations: but I desire it may be remembered, that there is neither liberty, property, true religion, art, sciences, learning, or knowledge, in these countries.
But another method has been thought on, in these western parts of the world, much less effectual, yet more mischievous, than the former; namely, to put the press under the direction of the prevailing party; to authorize libels to one side only, and to deny the other side the opportunity of defending themselves. Whilst all opinions are equally indulged, and all parties equally allowed to speak their minds, the truth will come out; even, if they be all restrained, common sense will often get the better: but to give one side liberty to say what they will, and not suffer the other to say any thing, even in their own defence, is comprehensive of all the evils that any nation can groan under, and must soon extinguish every seed of religion, liberty, virtue, or knowledge.
It is ridiculous to argue from the abuse of a thing to the destruction of it. Great mischiefs have happened to nations from their kings and their magistrates; ought therefore all kings and magistrates to be extinguished? A thousand enthusiastick sects have pretended to deduce themselves from scripture; ought therefore the holy writings to be destroyed? Are men’s hands to be cut off, because they may and sometimes do steal and murder with them? Or their tongues to be pulled out, because they may tell lies, swear, or talk sedition?
There is scarce a virtue but borders upon a vice, and, carried beyond a certain degree, becomes one. Corruption is the next state to perfection: Courage soon grows into rashness; generosity into extravagancy; Frugality into avarice; justice into severity; religion into superstition; zeal into bigotry and censoriousness; and the desire of esteem into vainglory. Nor is there a convenience or advantage to be proposed in human affairs, but what has some inconvenience attending it. The most flaming state of health is nearest to a plethory: There can be no protection, without hazarding oppression; no going to sea, without some danger of being drowned; no engaging in the most necessary battle, without venturing the loss of it, or being killed; nor purchasing an estate, going to law, or taking physick, without hazarding ill titles, spending your money, and perhaps losing your suit, or being poisoned. Since therefore every good is, for the most part, if not always, accompanied by some evil, and cannot be separated from it, we are to consider which does predominate; and accordingly determine our choice by taking both, or leaving both.
To apply this to libels: If men be suffered to preach or reason publickly and freely upon certain subjects, as for instance, upon philosophy, religion, or government, they may reason wrongly, irreligiously, or seditiously, and sometimes will do so; and by such means may possibly now and then pervert and mislead an ignorant and unwary person; and if they be suffered to write their thoughts, the mischief may be still more diffusive; but if they be not permitted, by any or all these ways, to communicate their opinions or improvements to one another, the world must soon be over-run with barbarism, superstition, injustice, tyranny, and the most stupid ignorance. They will know nothing of the nature of government beyond a servile submission to power; nor of religion, more than a blind adherence to unintelligible speculations, and a furious and implacable animosity to all whose mouths are not formed to the same sounds; nor will they have the liberty or means to search nature, and investigate her works; which employment may break in upon received and gainful opinions, and discover hidden and darling secrets. Particular societies shall be established and endowed to teach them backwards, and to share in their plunder; which societies, by degrees, from the want of opposition, shall grow as ignorant as themselves: Armed bands shall rivet their chains, and their haughty governors assume to be gods, and be treated as such in proportion as they cease to have human compassion, knowledge, and virtue. In short, their capacities will not be beyond the beasts in the field, and their condition worse; which is universally true in those governments where they lie under those restraints.
On the other side, what mischief is done by libels to balance all these evils? They seldom or never annoy an innocent man, or promote any considerable error. Wise and honest men laugh at them and despise them, and such arrows always fly over their heads, or fall at their feet. If King James had acted according to his coronation oath, and kept to the law, Lilly-Bulero might have been tuned long enough before he had been sung out of his kingdoms. And if there had been no South-Sea scheme, or if it had been justly executed, there had been no libels upon that head, or very harmless ones. Most of the world take part with a virtuous man, and punish calumny by the detestation of it. The best way to prevent libels, is not to deserve them, and to despise them, and then they always lose their force; for certain experience shews us, that the more notice is taken of them, the more they are published. Guilty men alone fear them, or are hurt by them, whose actions will not bear examination, and therefore must not be examined. It is fact alone which annoys them; for if you will tell no truth, I dare say you may have their leave to tell as many lies as you please.
The same is true in speculative opinions. You may write nonsense and folly as long as you think fit, and no one complains of it but the bookseller: But if a bold, honest, and wise book sallies forth, and attacks those who think themselves secure in their trenches, then their camp is in danger, they call out all hands to arms, and their enemy is to be destroyed by fire, sword, or fraud. But it is senseless to think that any truth can suffer by being thoroughly searched, or examined into; or that the discovery of it can prejudice true religion, equal government, or the happiness of society, in any respect: Truth has so many advantages above error, that she wants only to be shewn, to gain admiration and esteem; and we see every day that she breaks the bonds of tyranny and fraud, and shines through the mists of superstition and ignorance: and what then would she do, if these barriers were removed, and her fetters taken off?
Notwithstanding all this, I would not be understood, by what I have said, to argue, that men should have an uncontrolled liberty to calumniate their superiors, or one another; decency, good manners, and the peace of society, forbid it: But I would not destroy this liberty by methods which will inevitably destroy all liberty. We have very good laws to punish any abuses of this kind already, and I well approve them, whilst they are prudently and honestly executed, which I really believe they have for the most part been since the Revolution: But as it cannot be denied, that they have been formerly made the stales of ambition and tyranny, to oppress any man who durst assert the laws of his country, or the true Christian religion; so I hope that the gentlemen skilled in the profession of the law will forgive me, if I entrench a little upon their province, and endeavour to fix stated bounds for the interpretation and execution of them; which shall be the subject of my next letter.
T I am, &c.
101. SATURDAY, NOVEMBER 3, 1722. Second Discourse upon Libels. (Trenchard)
I have been told that in some former reigns, when the attorney-general took it in his head to make innocent or doubtful expressions criminal by the help of forced innuendos, the method of proceeding was as follows: If the counsel for the prisoner insisted, that the words carried no seditious meaning, but might and ought to be understood in a reasonable sense; he was answered, that his exception would be saved to him upon arrest of judgment; in the mean time the information was tried, and the malign intention of the words was aggravated and left to a willing jury; and then, upon a motion in behalf of the prisoner, to arrest judgment, because the words were not criminal in law, he was told, that the jury were judges of the intention; and having found it an ill one, it was too late to take the exception. Whether this was ever the truth, I have not lived long enough to affirm from my own knowledge; or, whether this method of proceeding be law now, I have not skill enough in that science to determine: But I think I may justly say, that if it be law, it is worth the consideration of our legislature whether it ought to continue so.
It is certain, that there is no middle in nature, between judging by fixed and steady rules, and judging according to discretion, which is another word for fancy, avarice, resentment, or ambition, when supported by power, or freed from fear. And I have said in my former letter, that as there can be no convenience but has an inconvenience attending it, so both these methods of judging are liable to objections. There is a constant war between the legislature and the pleader; and no law was ever enacted with so much circumspection, but flaws were found out afterwards in it, and it did not answer all the purposes intended by the law-makers; nor can any positive law be framed with so much contrivance, but artful men will slip out of it, and particularly in relation to libels. There are so many equivoques in language, so many sneers in expression, which naturally carry one meaning, and yet may intend another, that it is impossible by any fixed and stated rules to determine the intention, and punish all who deserve to be punished. But to get rid of this inconvenience at the expence of giving any man, or number of men, a discretionary power to judge another’s intentions to be criminal, when his words do not plainly denote them to be so, is subverting all liberty, and subjecting all men to the caprices, to the arbitrary and wild will, of those in power. A text in scripture cannot be quoted, without being said to reflect on those who break it; nor the ten commandments read, without abusing all princes and great men, who often act against the mall.
- I must therefore beg leave to think, that it is a strange assertion, which, as I have heard, has been advanced by lawyers in Westminster-Hall; viz. That it is an absurdity to affirm, that a judge and jury are the only people in England who are not to understand an author’s meaning; which, I think, may be true in many instances, when they act judicially, and the words which he uses, candidly construed, do not import that meaning. Tiberius put many Senators to death, for looking melancholy or dissatisfied, or enviously at his power; and Nero many others, for not laughing at his play, or laughing in the wrong place, or sneering instead of laughing; and very probably both judged right in their intentions; but sure no body will think amongst us, that such examples ought to be copied. A man, by not pulling off his hat, or not low enough, by a turn upon his heel, by a frowning countenance, or an over-pleasant one, may induce his spectators to believe that he intends a disrespect to one to whom it is criminal to own it; yet it would be a strange act of power to punish him for this unobservance. So words may be certainly chosen with such art, or want of it, that they may naturally carry a compliment, and perhaps may mean it; and yet other people, by knowing that the person intended does not deserve one, may think him abused And if this way of judging may be indulged in Westminster-Hall, the Lord have mercy upon poets, and the writers of dedications, and of the epitaphs too upon great men. Surely it is of less consequence to mankind, that a witty author should now and then escape unpunished, than that all men should hold their tongues, or not learn to write, or cease writing.
I do agree, when the natural and genuine meaning and purport of words and expressions in libelous writings carry a criminal intention, that the writer ought not to escape punishment by subterfuge or evasion, or by a sly interpretation hid in a corner, and intended only for a court of justice, nor by annexing new names to known things, or by using circumlocutions instead of single sounds and expressions; for words are only arbitrary signs of ideas; and if any man will coin new words to old ideas, or annex new ideas to old words, and let this meaning be fully understood, without doubt he is answerable for it. But when words used in their true and proper sense, and understood in their literal and natural meaning, import nothing that is criminal; then to strain their genuine signification to make them intend sedition (which possibly the author might intend too) is such a stretch of discretionary power, as must subvert all the principles of free government, and overturn every species of liberty. I own, that with such a power, some men may escape censure who deserve censure, but with it no man can be safe; and it is certain, that few men or states willbe aggrieved by this indulgence, but such as deserve much worse usage.
It is a maxim of politicks in despotick governments, that twenty innocent persons ought to be punished, rather than one guilty man escape; but the reverse of this is true in free states, in the ordinary course of justice: For since no law can be invented which can give power enough to their magistrates to reach every criminal, without giving them, by the abuse of the same law, a power to punish innocence and virtue, the greater evil ought to be avoided: And therefore when an innocent or criminal sense can be put upon words or actions, the meaning of which is not fully determined by other words or actions, the most beneficent construction ought to be made in favour of the person accused. The cause of liberty, and the good of the whole, ought to prevail, and to get the better of the just resentment otherwise due to the impertinence of a factious scribbler, or the impotent malice of a turbulent babbler.
This truth every man acknowledges, when it becomes his own case, or the case of his friends or party; and almost every man complains of it when he suffers by it: So great is the difference of men’s having power in their hands or upon their shoulders! But at present, I think that no party amongst us can find their account either in the suppression or in the restraint of the press, or in being very severe in their animadversion upon the liberties taken by it. The independent Whigs think all liberty to depend upon freedom of speech, and freedom of writing, within the bounds of manners and discretion, as conceiving that there is often no other way left to be heard by their superiors, nor to apprize their countrymen of designs and conspiracies against their safety; which they think ought to be done boldly, though in respect to authority, as modestly as can be consistent with the making themselves understood; and such among them as have lately quitted their independence, think themselves obliged to handle a subject tenderly, upon which they have exerted themselves verystrenuously in another circumstance of fortune.
Very many of the Tories, who may be at present ranked amongst the former sort of men, and who every day see more and more the advantages of liberty, and forget their former prejudices, will not be contented hereafter to receive their religion and politicks from an ignorant licenser, under the direction of those who have often neither religion nor politicks. And even the Jacobites themselves are so charmed with their own doughty performances, that they would not lose the pleasure of scolding at or abusing those whom they cannot hurt. Many of our spiritual guides will not be deprived of doing honour to themselves, and advantage to their flocks, from informing the world what they ought to believe by their particular systems; and the dissenting preachers are willing to keep their own flocks, and would not have the reasonableness of their separation judged of alone by those who differ from them, and have an interest in suppressing them. And I believe that all our world would be willing to have some other news besides what they find in the Gazette; and I hope that I may venture to say, that there is no number of men amongst us so very popular, as by their single credit and authority to get the better of all these interests
But, besides the reasons that I have already given, there is another left behind, which is worth them all; namely, that all the methods hitherto taken to prevent real libels have proved ineffectual; and probably any method which can be taken, will only prevent the world from being informed of what they ought to know, and will increase the others. The subjecting the press to the regulation and inspection of any man whatsoever, can only hinder the publication of such books, as authors are willing to own, and are ready to defend; but can never restrain such as they apprehend to be criminal, which always come out by stealth. There is no hindering printers from having presses, unless all printing be forbidden, and scarce then: And dangerous and forbidden libels are more effectually dispersed, enquired after, and do more mischief, than libels openly published; which generally raise indignation against the author and his party. It is certain, that there were more published in King Charles II’s and King James’s times, when they were severely punished, and the press was restrained, than have ever been since. The beginning of Augustus’s reign swarmed with libels, and continued to do so, whilst informers were encouraged; but when that prince despised them, they lost their force, and soon after died. And, I dare say, when the governors of any country give no occasion to just reflexions upon their ill conduct, they have nothing to fear but calumny andfalsehood.
Whilst Tiberius, in the beginning of his reign, would preserve the appearance of governing the Romans worthily, he answered a parasite, who informed him in the Senate, of libels published against his person and authority, in these words; Si quidem locutus aliter fuerit, dabo operam ut rationem factorum meorum dictorumque reddam; si perseveraverit, invicem eum odero: “If any man reflect upon my words or actions, I will let him know my motives and reasons for them; but if he still go on to asperse and hate me, I will hate him again.” But afterwards, when that emperor became a bloody tyrant, words, silence, and even looks, were capital.
T I am, &c.