its support. A general combination would then be formed, both of those members of parliament who have remained true to the public cause, and of persons of every order among the people. Public meetings, in such circumstances, would be appointed; general subscriptions would be entered into, to support the expenses, whatever they might be, of such a necessary opposition; and all private and unworthy purposes being suppressed by the sense of the national danger, the choice of the electors would then be wholly determined by the con312 sideration of the public spirit of the candidates, and the tokens given by them of such spirit.

Thus were those parliaments formed, which suppressed arbitrary taxes and imprisonments. Thus was it that, under Charles the Second, the people, when recovered from that enthusiasm of affection with which they received a king so long persecuted, at last returned to him no parliaments but such as were composed of a majority of men attached to public liberty. Thus it was that, persevering in a conduct which the circumstances of the times rendered necessary, the people baffled the arts of the government: and Charles dissolved three successive parliaments, without any other effect than that of having those same men re-chosen, and set again in opposition to him, of whom he hoped he had rid himself for ever.

Nor was James the Second happier in his attempts than Charles had been. This prince soon experienced that his parliament was actuated by the same spirit as those which had opposed the designs of his late brother; and having suffered himself to be led into measures of violence, instead of being better taught by the discovery he made of the real sentiments of the people, his reign

was terminated by that catastrophe with which every 313

one is acquainted.

Indeed, if we combine the right enjoyed by the people of England of electing their representatives, with the whole of the English government, we shall become continually more and more sensible of the excellent effects that may result from that right. All men in the state are, as has been before observed, really interested in the support of public liberty. Nothing but temporary motives, and such as are quite peculiar to themselves, can induce the members of any house of commons to connive at measures destructive of this liberty. The people, therefore, under such circumstances, need only change these members, in order effectually to reform the conduct of that house; and it may fairly be pronounced beforehand, that a House of Commons composed of a new set of members, will, from this bare circumstance, be in the interest of the people.

Hence, though the complaints of the people do not always meet with the speedy and immediate redress, (a celerity which would be the symptom of a fatal unsteadiness in the constitution, and would sooner or later bring on its ruin), yet, when we attentively consider the 314 nature and the resources of this constitution, we shall not think it too bold an assertion to say, that it is impossible but that complaints in which the people persevere (that is, well-grounded complaints), will sooner or later be redressed.

SECTION II.-The Liberty of the Press-concluded.

"THE liberty of the press is a privilege that cannot be too highly prized by every Englishman, as he enjoys that which no other government in Europe tolerates. No tyrannical government could possibly long continue with a free press; hence the very existence of this privilege is a proof of the strength and stability of the executive of Great Britain, which is found to admit of that extensive freedom of writing and speaking on political and all other subjects, which Englishmen enjoy, and at the same time punishes all those who shall be convicted of libelling any part of the constitution. This privilege is not the effect of any statute enacting it, but arises rather from the absence of all law prohibiting it; and may, in fact, be very fitly considered as a part of the common law of the land. Blackstone (1) observes that every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid that, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity."

Much, however, may be said, for and against this liberty as it is now exerted. That it has become more licentious even than in the days of that great statesman Mr. Pitt, cannot be denied. Lord Chatham called the press "a chartered libertine;" and in his time it was, compared with what it is, a young libertine, which has increased with its growth, and become so great, as to be, in fact, the sovereign power.

(1) Comm. vol. 4, p. 151.

How to control it, so that it shall not overturn, in its wild torrent, public liberty, is a question that no person has yet ventured upon.

The law is strong enough to stop this licentiousness; but dare we, at this day, exert the law, after the examples we have had of ex-officio informations and the issuing of general warrants, which were by the legislature (2), as well as by the Court of King's Bench (3), declared illegal? To establish a censorship as in other countries, would, as observed in the first section of this chapter, not only be attended with great inconveniences, but would be a direct interference with the liberty of the press; at the same time, to censure its licentiousness is to maintain that liberty. Before the statute 32 Geo. III. c. 60, even the jury had no power to declare what was, or what was not a libel; they could only give a verdict upon the mere fact of publication (4). This statute (introduced by Mr. Fox), gave them the power both on indictments and informations, where the general issue is pleaded, of giving a general verdict upon the whole matter in issue; and they are not to be required or directed by the judge to find the defendant guilty, merely on the proof of publication, and of the sense ascribed to the alleged libel on the record; but power is reserved to the judge, to give his opinion to the jury respecting the matter in issue, and the jury may find a special verdict; and the defendant, if convicted, may move the court, as before this statute, in arrest of judgment. So that now the jury, and not the judges, have to determine

(2) Comm. Jour. 22 Ap. 1766.

(3) 3 Burr. 1742. See also Wilkes's case, 1 Belsh. Geo. III. p. 94;

and Junius's Letters.

(4) See Woodfall's case; also Dean of St. Asaph's case, 3 T. R. 428.

upon the intention of the writer (5). This statute is considered a declaratory law, overruling all the decisions which held libel or no libel a question of law (6); but it does not extend to actions, it is confined to criminal cases (7).

The liberty of the press is essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published; and hence the justice of punishing the publisher, or vendor, as well as the writer; because, if a person knowingly publishes, or vends, what is improper, mischievous, or illegal, he does so at his own peril, and must submit to the consequences. Thus, the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.

To send an abusive private letter is as much a libel as if it were openly printed; and in all criminal prosecutions for libel, it is of no importance whether the matter of them be true or false, since the guilt of the libeller consists in the provoking of another to a breach of the peace. Lord Mansfield ruled upon this principle, that in all criminal cases, "the greater the truth, the greater the libel.” Whereas, in all civil actions, this principle is reversed. It is no libel if the truth be proved, or the defendant justifies by his plea. So also in all civil actions, the alleged libel must appear to be false, as well as scandalous ;

(5) The theory of the law of libel will be found explained in 1 Coleridge's Friend, 150.

(6) Rex v. Withers, 3 Term Rep. 428; Rex v. Dean of St. Asaph, n. Id.

(7) Levi v. Milne, 4 Bing. 199. From the circumstances that the act is silent as to actions, and the different scope and object of an indictment and an action, the one forbidding, the other admitting a justification. See also Starkie on Libel.