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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 afterwards resolved by all the judges as good law, that whosoever would insinuate the least doubt of Nero's
preeminence in the noble art of fiddling, ought to be deemed a traitor to the state. By the help of inferences, and inuendoes, 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 befell 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 holy priests (O 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, certissimum eacitium. 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 the Seventh, a prince mighty in politics, procured that act to be passed, whereby the jurisdiction of the Star-chamber was confirmed and extended. Afterwards 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 the Eighth, 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 corporal 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 demeanor 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 falsehood. She was often heard to applaud that rescript of Theodosius;* “If any person
*“Si quis Imperatori malediceret, non statim injuria censetur et eo nomine punitur ; sed distinguitur, an ex levitate processerit, et sic contem
speak ill of the Emperor, through a foolish rashness and inadvertency, 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 the First, 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 the First 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 Starnitur, an ex insanià, et miseratione digna censetur, an ex injuriâ, et sic remittenda declaratur.”
Note. A rescript was an answer delivered by the emperor, when consulted on some difficult question or point in law. The judges were wholly to be directed by it, whenever such a case came before them. For “The voice of the king gives vigor to the law," (Voluntas regis habet vigorem legis,) is a fundamental principle in the civil law. The rescript, mentioned above, was not only delivered by Theodosius, but by two other emperors, Honorius and Arcadius.
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 attorneygeneral 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 Eliott, 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 reversed 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. Prynne, 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