Abbildungen der Seite

Let it be observed that these three qualities of a libel against the government are in the conjunctive. His subsequent words are these, "As to the falsehood, I see nothing that is offered by the king's counsel; nor any thing as to the malice." Here the judge puts the proof both of the falsehood and the malice on the prosecutor; and, though the falsehood in this case was a question of law, it will not be denied, but that the malice was a question of fact. Now shall we attribute this omission to the inadvertency of the remarker? No, that cannot be supposed; for the sentence immediately followed. But they were nailing, decisive words, which, if they were fairly quoted, had put an end to the dispute, and left the remarker without the least room for evasion; and therefore he very honestly dropped them.


Our author says it is necessary to consult Bracton, in order to fix our idea of a libel. Now Bracton, throughout his five books De Legibus et Consuetudinibus Anglia, only once happened to mention libels, very perfunctorily. He says no more than that a man may receive an injury by a lampoon and things of that Fit injuria cum de eo factum carmen famosum et hujusmodi. Pray how is any person's idea of a libel the better fixed by this description of it? Our author very sagaciously observes, on these words of Bracton, that the falsity of a libel is neither expressed nor implied by them. That it is not expressed, is selfevident; but that it is not implied, we have only the remarker's ipse dixit for it.

But it was really idle and impertinent to draw this ancient lawyer into the dispute, as nothing could be learned from him, only that a libel is an injury, which every body will readily grant. I have good ground to suspect, that our author did not consult Bracton on this occasion; the passage, cited in the remarks, is literally

transcribed from Coke's ninth report, folio sixty; by which an unlearned reader might be easily led to believe, that our author was well skilled in ancient learning; ridiculous affectation and pedantry this.

To follow the remarker, through all his incoherencies and absurdities, would be irksome; and indeed nothing is more vexatious than to be obliged to refute lies and nonsense. Besides, a writer, who is convicted of imposing wilful falsehoods on the reader, ought to be regarded with abhorrence and contempt. It is for this reason I have treated him with an acrimony of style, which nothing but his malice and want of sincerity, and not his ignorance, his dulness, or vanity, could have justified; however, as to the precedents and proceedings against libelling, before the case of the seven bishops, he ought to be left undisturbed in the full enjoyment of the honor he has justly acquired by transcribing them from commonplace books and publishing them in gazettes. Pretty speculations these to be inserted in newspapers, especially when they come clothed and loaded under the jargon and tackle of the law.

I am sure, that by this time the reader must be heartily tired with the little I have offered on the subject, though I have endeavoured to speak so as to be understood; yet it in some measure appeared necessary to expose the folly and ignorance of this author, inasmuch as he seemed to be cherished by some pernicious insects of the profession, who, neglecting the noblest parts, feed on the rotten branches of the law.

Besides, the liberty of the press would be wholly abolished, if the remarker could have propagated the doctrine of punishing truth. Yet he declares he would not be thought to derogate from that noble privilege of

a free people. How does he reconcile these contradic tions? why truly thus; he says, that the liberty of the press is a bulwark and two-edged weapon, capable of cutting two ways, and is only to be trusted in the hands of men of wit and address, and not with such fools as rail without art. I pass over the blunder of his calling a bulwark a two-edged weapon, for a lawyer is not supposed to be acquainted with military terms; but is it not highly ridiculous, that the gentleman will not allow a squib to be fired from the bulwark of liberty, yet freely gives permission to erect on it a battery of cannon?

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 a reciprocal dependence on each other, that they cannot subsist without consisting together.*

* The evils of one extreme in the political condition of society in regard to libels and treasons, as in other things, renders men blind to those of the opposite. The history of the period anterior to this essay abounds in examples of the evils and abuses incident to the laws on these subjects, and gave rise to the doctrine maintained in the text, that nothing short of an absolute, unbridled licentiousness of the press was consistent with political liberty. Subsequent experience has shown, that the tyranny of a licentious press and of public opinion is to be dreaded, on the one hand, as well as that of monarchs and privileged classes on the other. The modern legislation on the subject of libel stops far short of the doctrine here inculcated. According to that legislation, the truth, when published wantonly and from malicious motives, for bad purposes, may be a libel; and, in order to render the truth of a publication a sufficient justification, it must appear to have been published from justifiable motives and for justifiable purposes.-W. PHILLIPS.





In the year 1755 a political tract was published in Boston, entitled "Observations on the Late and Present Conduct of the French;" which was written by William Clarke, and dedicated to Governor Shirley. To this pamphlet the following paper was appended. Mr. Clarke says in his preface; "The Observations concerning the Increase of Mankind were written some years ago; but the ingenious author would never suffer them to be made public till now, when he has been prevailed upon to consent to it by some of his friends, who thought the publication of them would be of general benefit and advantage." In 1760 appeared Franklin's pamphlet, entitled "The Interest of Great Britain considered, with Regard to her Colonies," published in London, to which this paper was appended, with the following preliminary notice. "In confirmation of the writer's opinion concerning population, manufactures, &c., he has thought it not amiss to add an extract from a piece written some years since in America, where the facts must be well known, on which the reasonings are founded." This "extract" is all that has usually been included in the various collections of the author's writings. The whole piece is printed below, as originally contained in Mr. Clarke's pamphlet. - EDITOR.

1. TABLES of the proportion of marriages to births, of deaths to births, of marriages to the number of inhabitants, &c., formed on observations made upon the bills of mortality, christenings, &c., of populous cities, will not suit countries; nor will tables formed on observations,

made on full-settled old countries, as Europe, suit new countries, as America.*

2. For people increase in proportion to the number of marriages, and that is greater in proportion to the ease and convenience of supporting a family. When families can be easily supported, more persons marry, and earlier in life.

3. In cities, where all trades, occupations, and offices are full, many delay marrying till they can see how to bear the charges of a family; which charges are greater in cities, as luxury is more common; many live single during life, and continue servants to families, journeymen to trades, &c.; hence cities do not, by natural generation, supply themselves with inhabitants; the deaths are more than the births.

4. In countries full settled, the case must be nearly the same; all lands being occupied and improved to the height, those who cannot get land must labor for others that have it; when laborers are plenty their wages will be low; by low wages a family is supported with difficulty; this difficulty deters many from marriage, who therefore long continue servants and single. Only as the cities take supplies of people from the country, and thereby make a little more room in the country, marriage is a little more encouraged there, and the births exceed the deaths.

5. Europe is generally full settled with husbandmen, manufacturers, &c., and therefore cannot now much increase in people. America is chiefly occupied by Indians, who subsist mostly by hunting. But as the hunter, of all men, requires the greatest quantity of land

Nor will tables, which are accurately calculated at one period, necessarily continue to be correct in the same country at another period. The chances of life have been ascertained to be greater in Europe during the last half century, than they were formerly.-W. PHILLIPS.

« ZurückWeiter »