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that the present definition of the liberty of the press merely excludes a particular class of restrictions, with the express or tacit reservation of others. perhaps not less oppressive ;' and if it led to no farther errors, if every one precisely knew what is meant by the freedom of the press in his own country, and on what conditions he enjoys it, we might overlook the generally indefinite use of v the term. But when it is proposed to take a more enlarged views and enter into a thorough investigation of the subject, it is necessary to reject such conventional and popular definitions.
The liberty of the press then becomes an absolutely relative idea, the measure and compass of which is determined by the boundary line which divides the authorised and unauthorised employment of the press The question, whether a country is better with or without the liberty of the press thus loses all importance, as- in one sense it exists everywhere and in another sense nowhere. Jud, 24. The circulation of rideas, by means of the press, being then an action which may or may not be performed, it belongs to the stater to declare ina what cases it shall be allowable. The 'liberty of the press can never be precisely fixed by positive ordinances. When such an attempt is made, we may venture to assért either that the nature of the subject is not understood at all, or that it is apprehended there are some persons, whose prejudices'it would be desirable to spare, or whose opinions it may be thought necessary to flatter, who do misunderstand it. Regulations, which have the liberty of the press for their object, must be solely directed against its abuse, and consequently always become negative and sestrictive. Under this point of view, must the controversy, which at present occupies so many minds and pens, be considered.
The discovery to be made is not, how the freedom of the press may be established, for it is self-founded; but, as it cannot subssist without restrictions, how it may be limited in the least injuricous and most convenient manner? Since then our choice is confined to only two principal modes, it will be proper to propose the question - 111 the following form. Does the system, which prevents the abuse of the press by police tegislation, or that
which punishes its abuse, when committed, by penal laws, deserve to be preferred? WEL 9012119 07 74**IPMAT : 37 Were such a question to be decided by a blind predilection for
one or the other system, by dogmatical common places, or by sarguments in which that, which should first be proved, is con
stantly taken for granted, it would, without doubt, 'according to the present disposition of men's minds, soon be dismissed. Many
would regard it as unworthy of being proposed, others would consider the dignity of the literary character, the honor of an suenlightened agey and the most sacred rights of citizens offended
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by an inquiry, in their eyes, so completely unnecessary. "That the system of preventive laws, even independently of the numerous faults by which its execution is almost everywhere accompanied, and almost everywhere brought into discredit, 'should neither be satisfactory nor popular, is a circumstance" sufficiently intelligible. The operations of this system are so simple, that they may be easily observed, and, without much effort, judged. By their generality they reach every author, if not in the same way, ar least in so far that he cannot, without responsibility, elude them.! They are besides, even under the most favorable circumstances, exposed to a strong suspicion of being altogether arbitrary or discretional
. - Finally, and this is the most serious consideration of all, they touch a class of persons who unite' to a certain portion' of real merit a large mass of false pretensions, and touch them too in the tenderest point; they wound their self-love, obstracts the spontaneous current of their witticisms, their inventions, their fictions, their follies, and their passions, and oppose to the opiut nion, which each individual entertains of himself and his works; the weight of a higher authority, and what is still far more intol* orable, a real or at least legally presumed superior judgment: 16 €
On the other hand, notwithstanding the general dislike of penal laws, nothing is more natural than the favor which the system of responsibility after the fact has obtained. With most persons, that system needs no other recommendation than that of superseding the authority of the police. In this, as in a thousand similar cases, few give themselves the trouble to inquire, how that law will be framed which must necessarily supply the place of an ordinance so offensive to them. Any regulation appears more desirable than the existing restraints, though the change may? be to measures infinitely more oppressive. When the nature of the judicial proceedings, against the abuse of the preos, are not known by experience, only the bright side of the subject is seen, and every thing is supposed to be gained if the control of the censor be removed. Even in countries where this system has long prevailed, those who do not immediately suffer by its operaati tion, soon lose sight of its real nature, oppression, and petils. If in any remarkable case general attention be excited, niby public accusations, provisional arrests, and all the solemn apparatus of a judicial trial, having perhaps at last 'a tragical issue, then all is agitation, and the farfamed guarantee of literaty freedom is on every side calumniated as a feeble bulwark, a treacherous share, and an instrument of the basest tyranny. The momentary terror, however, soon passes away. Every author, even the individual i most conscious of having overstepped all bounds, and who mayat have dared all the vengeance of the laws, hopes; as far as regards
himself, to be able to weather the storm ; and, as the thunderbolt falls but on few heads and seldom on the most criminal, the hope is not wholly, unfounded. Even in the most extreme case the progress of the trial presents many chances of deliverance. The defendant may rely on the ability of his counsel, on his own talents and eloquence, or on the preponderance of the popular feeling in his favor.,, Many see, in a trial of this kind, only the means of acquiring celebrity, and regard even the threatened punishment (especially before its effects are felt), as a new claim to the approbation and sympathy of all who entertain similar sentiments, or as an honorable martyrdom.
But whatever stress, may be laid on these views and motives, this much is certain, that, in order to compare the one system with the other, it is at least necessary that both should be thoroughly understood. With regard to the system of censorship, there is - no difficulty in acquiring this knowledge; it is founded on a few simple rales, and its advantages, and inconveniences are equally, obvious, On the contrary, the system which subjects the offences of the press to judicial investigation, is of a very complicated nature. It is connected with several questions of jurisprudence and state policy, which are not only highly important, but often of great critical delicacy; and, with out the strictest attention to all the other legal and political relax tions of the state, in which it is already introduced, or to which it may be accommodated, it cannot be theoretically understood, still less practically estimated. In countries in which the freedom of the press has never been tried, under this form, correct repres sentations of it are very uncommon : the discussion is then a disa pute about words, while the subject remains uninvestigated; and the persons, who call the loudest for a change, are often precisely. those who least know what it is they desire. Perhaps one of the principal causes of the enthusiastic predilection for this system, really is the ignorance which prevails as to its operation and character, its essential ingredients, its preliminary conditions, its difficulties and its dangeren It surely then cannot be deemed superfluous to throw more light on a subject of such general interest. . Those, few as their number may be, who, less hasty, and bold in their conclusions than the great majority of their countrymen, do not regard the question here proposed as long since decided, but who feel the necessity of farther deliberation, and of collecting materials and points of comparison for a solid and ultimate decision, will not disdain an explanation founded on indisputable facts and documents. And even such as have already formed a judgments or are on other grounds determined, on no accounts to abandon the system for which they have pace
declared, must at least consider it of some value to be made better acquainted with the object they desire, and to be enabled more correctly to estimate, by the rule of previous experience, what they may expect if their favorite idea be realised.
To accomplish this object few things appear better calculated than an accurate, and, at the same time, discriminating representation of the Liberty of the Press, in England and France, with a view to the calm and deliberate exposition of its situation in each. The rejection of the censorship and the correction of the press by penal laws, must be regarded as the prevailing system of both countries. In England, this system has been in operation for more than a century, and has subsequently, with all the good and evil belonging to it, ripened to a perfect maturity. In France the same system, solemnly proclaimed on the Revolution, after having been alternately the sanctuary, the scourge, and the scorn of the nation, sometimes the victim and sometimes the tool of tyranny, forms, since the restoration of the royal authority, an article of the Con stitution, and though still in a state of warfare with various impediments and restrictions, appears rapidly advancing to its final confirmation. The recent as well as the more remote proceedings connected with this system, in both countries, afford an abundant supply of the materials of every kind, necessary for the complete discussion of the present question,
Measures, which have the press for their object, ought to be examined on more than one side. It would be fruitless and absurd to persist in judging them exclusively by their effects on authors. Reasonable men, of all parties, admit in this, as in all similar cases, that the claims of individuals are not to be satisfied to the injury of society, and that nothing prescribed by authority is worthy of the name of legislation which does not unite public security with private freedom. A system that, in order to avert every danger, should scarcely permit the press to breathe, would not be more blameable than that which, from excessive forbearance towards individuals, should endanger public tranquillity and the existence of the state. The worst of all would indisputably be one which should sin equally both ways. Examples of this kind will, perhaps, be met with in the course of our investigation.
Every system which has for its object to regulate the press, by penal laws, embraces three clearly distinct constituent parts, each of which, in its operation, must influence the other two. This division must not be lost sight of by those who desire to discuss the subject regularly, and who wish to decide fairly on the value of the whole. The three branches of the system are :
FIRST-The state of the law under which the abuses of the press are tried and punished , gta
SECONDLY. The manner in which offences against the laws are brought
under judicial eugnisance, or the forms of actiongos 1939 TÀIRDLY_The judicial process in dts whole extent.11091103 970 These three heads point out the order
in which we shall pursue this inquiry. 198390 5qqs, agnisia wsi 359 do zidi daitqooss oT Singergan yritetticasinoeib gestit smsa sd is baie stets ne nos a liw SLIBERTY OF THE PRESSELIK ENGLAND.II
. st Boois 389 If noudis est to rotraoqus 9cidub bez mle o wsiv Everything, in England, hávihg reference to the use and abuse of the Press was formerly regulated by the Court of Star-Chamber, and remained under "its exclusive Jurisdiction until the middle of the seventeenth century i The Star Chamber, which was an anda cienteribunal revived by Henry VII., was appointed, by authority of the prerogative, to take cognlisance
of all offences agáitist public order and ali transgressions of the police laws of the kingdom, anul pronounced judgment without the intervention of a jergjitarda without respect to the ordinary fornis of processins This tribunalezie which might be considered a sort of superior éourt of polices fixédia ther number of printers and presses, and appointed an inspector of SI the Press, under
of Licenser, without whose consent ne thing could be published. In the year 1641, not long before the breaking out of the civil war, a time when all the old toval prerogausa tives were overthrown, the Star-Chamber was abolished on The parliament then assumed that police authority over the Press which had hitherto been possessed by the Star-Chamber, and continued during the Protectorate to exercise it, through the medium of commissioners. Two years after the Restoration, the regulations of Cromwell's parliament were again put in force, and were repeated: edly renewed under Charles Ir. and James II. The last of these o measures expired in the
year 1692, three years after the revolution which placed William III. on the throne. It was, however, determitted that it strould be prolonged for two years more; the king himself regarded its existence as a matter of importance. At laseid in the year 1694, parliament declared against the farther continuzis ance of the act. Thus through the mere extinguishing of the old law, which took place almost in silence, and certainly without le the importance of this negative
decision ta posterity being foreseen by any who participated in it, was the existing system introduced.
We now proceed to the examination of this system, according to the preceding arrangement of its parts rite constata ca si bien to stebucibo Se sabo yatoságiz soi sd son sum solvit
BTATE OF THE LAW AGAINST OPFENCES OF THE PRESS.Odi betoi slog O SYS M291aya sds to stotend aus 9dT slots'sis 30
The only kind of offences of the Presslarecognised in England, is that which comes under the description of ealumnious publications
VOL. XV. Slut Pam.but NO. XXX.,86 2G