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harboured a suspicion so unworthy of him, might be justly incensed against them. Therefore the record truly says, that the letter was utterly false, and that there was couched under it, an insinuation (certainly malicious), that might raise an indignation in this king against the court, &c., since it evidently appears, that not only the falsehood, but also the malice, was the ground of the judgment .
I agree with the remarker that Noy, citing this case, says, that the letter contained no ilk yet the writer was punished; but these words are absolutely as they stand in the remarks, detached from the context . Noy adduces Northampton's case, to prove that a man is punishable for contemplating without a cause, though the words of the complaint (simply considered) should contain no ill in them; it is not natural to inquire whether the application be just; it is only an expression of a counsel at the bar. The case was adjourned, and we hear no more of it . Yet these words of Noy, the remarker would pass on the reader as a good authority. "This book, therefore," quoth he, referring to Godbolt's Reports, "follows the record of Northampton's case, and says, that because it might incense the king against the judges he was punished; which is almost a translation of PrcBtextu cujus," &lc. I could readily pardon our author's gibberish, and want of apprehension, but cannot so easily digest his insincerity.
The remarker in the next place proceeds to the trial of the seven bishops; I shall quote his own words, though I know they are so senseless and insipid, that I run the risk of trespassing on the reader's patience; however, here they be; "Mr. Justice Powell also does say, that , to make it a libel . it must be false, it must be malicious, and it must tend to sedition. Upon which words of this learned and worthy judge, I would not presume to offer any comment, except that which other words of his own afford, that plainly show in what sense he then spoke. His subsequent words are these, * The bishops tell his Majesty, it is not out of averseness,' &c. So that the judge put the whole upon that single point, whether it be true that the king had a dispensing power or not; which is a question of law, and not of fact; and accordingly the judge appeals to his own reading in the law, not to witnesses or other testimonies, for a decision of it."
Now, the bishops had asserted in the libel they were charged with, that the dispensing -power, claimed by the king in his declaration, was illegal. The remarker, by granting that the prelates might prove part of their assertion, viz. that the dispensing power was illegal, which is a question of law, necessarily allows them to prove the other part of their assertion, viz. that his Majesty had claimed such a power, which is a question of fact; for the former could not be decided without proving or admitting the latter, and so in all other cases, where a man publishes of a magistrate, that he has acted or commanded an illegal thing, if the defendant shall be admitted to prove the mode or illegality of the thing, it is evidently implied that he may prove the thing itself; so that, on the gentleman's own premises, it is a clear consequence, that a man prosecuted for a libel, shall be admitted to give the truth in evidence. The remarker has a method of reasoning peculiar to himself; he frequently advances arguments, which directly prove the very point he is laboring to confute.
But, in truth, Judge Powell's words would not have given the least color to such a ridiculous distinction, if they had been fairly quoted. He affirms, with the strongest emphasis, that, to make it a libel, it must be false, it must be malicious, and it must tend to sedition.
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 AnglitB, 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 nature. Fit injuria cum de eo factum carmen famosum et kujusmodi. 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 incoherences 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 contradictions? 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 1
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 (tops 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.