Front Page Titles (by Subject) CHAPTER XII: The Subject continued.—Liberty of the Press. - The Constitution of England; Or, an Account of the English Government
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CHAPTER XII: The Subject continued.—Liberty of the Press. - Jean Louis De Lolme, The Constitution of England; Or, an Account of the English Government 
The Constitution of England; Or, an Account of the English Government, edited and with an Introduction by David Lieberman (Indianapolis: Liberty Fund, 2007).
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The Subject continued.—Liberty of the Press.
As the evils that may be complained of in a State do not always arise merely from the defect of the laws, but also from the non-execution of them, and this non-execution of such a kind, that it is often impossible to subject it to any express punishment, or even to ascertain it by any previous definition, Men, in several States, have been led to seek for an expedient that might supply the unavoidable deficiency of legislative provisions, and begin to operate, as it were, from the point at which the latter begin to fail: I mean here to speak of the Censorial power; a power which may produce excellent effects, but the exercise of which (contrary to that of the legislative power) must be left to the People themselves.
As the proposed end of Legislation is not, according to what has been above observed, to have the particular intentions of individuals, upon every case, known and complied with, but solely to have what is most conducive to the public good on the occasions that arise, found out, and established, it is not an essential requisite in legislative operations, that every individual should be called upon to deliver his opinion; and since this expedient, which at first sight appears so natural, of seeking out by the advice of all that which concerns all, is found liable, when carried into practice, to the greatest inconveniences, we must not hesitate to lay it aside entirely. But as it is the opinion of individuals alone, which constitutes the check of a censorial power, this power cannot possibly produce its intended effect any farther than this public opinion is made known and declared: the sentiments of the People are the only thing in question here: therefore it is necessary that the People should speak for themselves, and manifest those sentiments. A particular Court of Censure therefore essentially frustrates its intended purpose; it is attended, besides, with very great inconveniences.
As the use of such a Court is to determine upon those cases which lie out of the reach of the laws, it cannot be tied down to any precise regulations. As a farther consequence of the arbitrary nature of its functions, it cannot even be subjected to any constitutional check; and it continually presents to the eye the view of a power entirely arbitrary, and which in its different exertions may affect in the most cruel manner, the peace and happiness of individuals. It is attended, besides, with this very pernicious consequence, that, by dictating to the people their judgments of Men or measures, it takes from them that freedom of thinking, which is the noblest privilege, as well as the firmest support of Liberty (a) .
We may therefore look upon it as a farther proof of the soundness of the principles on which the English constitution is founded, that it has allotted to the People themselves the province of openly canvassing and arraigning the conduct of those who are invested with any branch of public authority; and that it has thus delivered into the hands of the People at large, the exercise of the censorial power. Every subject in England has not only a right to present petitions to the King, or to the Houses of Parliament, but he has a right also to lay his complaints and observations before the Public, by means of an open press. A formidable right this, to those who rule mankind; and which, continually dispelling the cloud of majesty by which they are surrounded, brings them to a level with the rest of the people, and strikes at the very being of their authority.
And indeed this privilege is that which has been obtained by the English Nation, with the greatest difficulty, and latest in point of time, at the expence of the Executive power. Freedom was in every other respect already established, when the English were still, with regard to the public expression of their sentiments, under restraints that may be called despotic. History abounds with instances of the severity of the Court of Star-Chamber, against those who presumed to write on political subjects. It had fixed the number of printers and printing-presses, and appointed a Licenser, without whose approbation no book could be published. Besides, as this Tribunal decided matters by its own single authority, without the intervention of a Jury, it was always ready to find those persons guilty, whom the Court was pleased to look upon as such; nor was it indeed without ground that Chief Justice Coke, whose notions of liberty were somewhat tainted with the prejudices of the times in which he lived, concluded the elogiums he has bestowed on this Court, with saying, that “the right institution and orders thereof being observed, it doth keep all England in quiet.”1
After the Court of Star-Chamber had been abolished, the Long Parliament, whose conduct and assumed power were little better qualified to bear a scrutiny, revived the regulations against the freedom of the press. Charles the Second, and after him James the Second, procured farther renewals of them. These latter acts having expired in the year 1692, were at this aera, although posterior to the Revolution, continued for two years longer; so that it was not till the year 1694, that, in consequence of the Parliament’s refusal to continue the prohibitions any longer, the freedom of the press (a privilege which the Executive power could not, it seemed, prevail upon itself to yield up to the people) was finally established.2
In what does then this liberty of the press precisely consist? Is it a liberty left to every one to publish any thing that comes into his head? to calumniate, to blacken, whomsoever he pleases? No; the same laws that protect the person and the property of the individual, do also protect his reputation; and they decree against libels, when really so, punishments of much the same kind as are established in other Countries. But, on the other hand, they do not allow, as in other States, that a Man should be deemed guilty of a crime for merely publishing something in print; and they appoint a punishment only against him who has printed things that are in their nature criminal, and who is declared guilty of so doing by twelve of his equals, appointed to determine upon his case, with the precautions we have before described.
The liberty of the press, as established in England, consists therefore, to define it more precisely, in this, That neither the Courts of Justice, nor any other Judges whatever, are authorised to take any notice of writings intended for the press, but are confined to those which are actually printed, and must, in these cases, proceed by the Trial by Jury.
It is even this latter circumstance which more particularly constitutes the freedom of the press. If the Magistrates, though confined in their proceedings to cases of criminal publications, were to be the sole Judges of the criminal nature of the things published, it might easily happen that, with regard to a point which, like this, so highly excites the jealousy of the governing Powers, they would exert themselves with so much spirit and per severance, that they might, at length, succeed in completely striking off all the heads of the hydra.
But whether the authority of the Judges be exerted at the motion of a private individual, or whether it be at the instance of the Government itself, their sole office is to declare the punishment established by the law:—it is to the Jury alone that it belongs to determine on the matter of law, as well as on the matter of fact; that is, to determine, not only whether the writing which is the subject of the charge has really been composed by the Man charged with having done it, and whether it be really meant of the person named in the indictment,—but also, whether its contents are criminal.3
And though the law in England does not allow a Man, prosecuted for having published a libel, to offer to support by evidence the truth of the facts contained in it, (a mode of proceeding which would be attended with very mischievous consequences, and is every where prohibited), yet (a) as the indictment is to express that the facts are false, malicious, &c. and the Jury, at the same time, are sole masters of their verdict, that is, may ground it upon what considerations they please, it is very probable that they would acquit the accused party, if the facts asserted in the writing before them, were matter of undoubted truth, and of a general evil tendency. They, at least, would certainly have it their power.
And this would still more likely be the case if the conduct of the Government itself was arraigned; because, besides this conviction which we suppose in the Jury, of the certainty of the facts, they would also be influenced by their sense of a principle generally admitted in England, and which, in a late celebrated cause, has been strongly insisted upon, viz. That, “though to speak ill of individuals was deserving of reprehension, yet the public acts of Government ought to lie open to public examination, and that it was a service done to the State, to canvass them freely” (a) .
And indeed this extreme security with which every man in England is enabled to communicate his sentiments to the Public, and the general concern which matters relative to the Government are always sure to create, has wonderfully multiplied all kinds of public papers. Besides those which, being published at the end of every year, month, or week, present to the reader a recapitulation of every thing interesting that may have been done or said during their respective periods, there are several others, which making their appearance every day, or every other day, communicate to the public the several measures taken by the Government, as well as the different causes of any importance, whether civil or criminal, that occur in the Courts of Justice, and sketches from the speeches either of the Advocates or the Judges, concerned in the management and decision of them. During the time the Parliament continues sitting, the votes or resolutions of the House of Commons, are daily published by authority; and the most interesting speeches in both Houses, are taken down in short-hand, and communicated to the Public, in print.4
Lastly, the private anecdotes in the Metropolis, and the Country, concur also towards filling the collection; and as the several public papers circulate, or are transcribed into others, in the different Country Towns, and even find their way into the villages, where every Man, down to the labourer, peruses them with a sort of eagerness, every individual thus becomes acquainted with the State of the Nation, from one end to the other; and by these means the general intercourse is such, that the three Kingdoms seem as if they were one single Town.
And it is this public notoriety of all things, that constitutes the supplemental power, or check, which, we have above said, is so useful to remedy the unavoidable insufficiency of the laws, and keep within their respective bounds all those persons who enjoy any share of public authority.
As they are thereby made sensible that all their actions are exposed to public view, they dare not venture upon those acts of partiality, those secret connivances at the iniquities of particular persons, or those vexatious practices, which the Man in office is but too apt to be guilty of, when, exercising his office at a distance from the public eye, and as it were in a corner, he is satisfied that provided he be cautious, he may dispense with being just. Whatever may be the kind of abuse in which persons in power may, in such a state of things, be tempted to indulge themselves, they are convinced that their irregularities will be immediately divulged. The Juryman, for example, knows that his verdict, the Judge, that his direction to the Jury, will presently be laid before the Public: and there is no Man in office, but who thus finds himself compelled, in almost every instance, to choose between his duty, and the surrender of all his former reputation.
It will, I am aware, be thought that I speak in too high terms, of the effects produced by the public news-papers. I indeed confess that all the pieces contained in them are not patterns of good reasoning, or of the truest Attic wit; but, on the other hand, it scarcely ever happens that a subject in which the laws, or in general the public welfare, are really concerned, fails to call forth some able writer, who, under some form or other, communicates to the public his observations and complaints. I shall add here, that, though an upright Man labouring for a while under a strong popular prejudice, may, supported by the consciousness of his innocence, endure with patience the severest imputations, the guilty Man, hearing nothing in the reproaches of the public but what he knows to be true, and already upbraids himself with, is very far from enjoying any such comfort; and that, when a man’s own conscience takes part against him, the most despicable weapon is sufficient to wound him to the quick (a) .
Even those persons whose greatness seems most to set them above the reach of public censure, are not those who least feel its effects. They have need of the suffrages of that vulgar whom they affect to despise, and who are, after all, the dispensers of that glory, which is the real object of their ambitious cares. Though all have not so much sincerity as Alexander, they have equal reason to exclaim, O People! what toils do we not undergo, in order to gain your applause!
I confess that in a State where the People dare not speak their sentiments, but with a view to please the ears of their rulers, it is possible that either the Prince, or those to whom he has trusted his authority, may sometimes mistake the nature of the public sentiments, or that, for want of that affection of which they are denied all public marks, they may rest contented with inspiring terror, and make themselves amends in beholding the over-awed multitude smother their complaints.
But when the laws give a full scope to the People for the expression of their sentiments, those who govern cannot conceal from themselves the disagreeable truths which resound from all sides. They are obliged to put up even with ridicule; and the coarsest jests are not always those which give them the least uneasiness. Like the lion in the fable, they must bear the blows of those enemies whom they despise the most; and they are, at length, stopped short in their career, and compelled to give up those unjust pursuits which they find to draw upon them, instead of that admiration which is the proposed end and reward of their labours, nothing but mortification and disgust.
In short, whoever considers what it is that constitutes the moving principle of what we call great affairs, and the invincible sensibility of Man to the opinion of his fellow-creatures, will not hesitate to affirm that, if it were possible for the liberty of the press to exist in a despotic government, and (what is not less difficult) for it to exist without changing the constitution, this liberty of the press would alone form a counterpoise to the power of the Prince. If, for example, in an empire of the East, a sanctuary could be found, which, ren-dered respectable by the ancient religion of the people, might ensure safety to those who should bring thither their observations of any kind, and that from thence printed papers should issue, which, under a certain seal, might be equally respected, and which in their daily appearance should examine and freely discuss the conduct of the Cadis, the Bashaws, the Vizir, the Divan, and the Sultan himself,—that would introduce immediately some degree of liberty.
[(a) ]M. de Montesquieu, and M. Rousseau, and indeed all the Writers on this subject I have met with, bestow vast encomiums on the Censorial Tribunal that had been instituted at Rome [[Montesquieu discussed Rome’s constitution and tribunes at many points in his 1734 Considerations on the Causes of the Greatness and Decline of the Romans and The Spirit of the Laws. De Lolme here may recall the passage in Spirit of the Laws, book 4, chapter 11, where Montesquieu endorsed Cicero’s judgment that “the establishment of tribunes in Rome saved the republic.” Rousseau’s most sustained discussion of Rome’s tribunes—the substance of which was more qualified than De Lolme’s note suggests—appeared in The Social Contract, book 4, chapter 5, “Of the Tribunate.”;—they have not been aware that this power of Censure, lodged in the hands of peculiar Magistrates, with other discretionary powers annexed to it, was no other than a piece of State-craft, like those described in the preceding Chapters, and had been contrived by the Senate as an additional means of securing its authority.—Sir Thomas More has also adopted similar opinions on the subject; and he is so far from allowing the people to canvass the actions of their Rulers, that in his System of Polity, which he calls An Account of Utopia (the happy Region,—εὑ̑ and τόπος) he makes it death for individuals to talk about the conduct of Government. De Lolme likely refers to the rule in Utopia, which was governed by an elected prince and elected senate: “It is a capital offence to make plans about public business outside the senate or the popular assembly.” See Thomas More, Utopia, ed. George M. Logan, Robert M. Adams, and Clarence H. Miller (Cambridge: Cambridge University Press, 1995), 123.
[1. ]Edward Coke, Institutes of the Laws of England, part 4 (1644), p. 64.
[2. ]Although the Licensing Act regulating publication was not renewed after 1695, Parliament continued to consider proposed legislation to regulate the press over the next decade. As De Lolme goes on to explain, the failure to renew the Licensing Acts brought to an end the system of prepublication censorship of the press. Thereafter, the content of newspaper and other writing was generally regulated by the law of blasphemy and libel.
[3. ]As in his previous treatment of this point in book 1, chapter 13, p. 128, note a, De Lolme treats as legally settled the still strongly contested issue of the jury’s authority to determine the question in law of what constituted criminal libel.
[(a) ]In actions for damages between individuals, the case, if I mistake not, is different, and the defendant is allowed to produce evidence of the facts asserted by him. [[In the case of a civil suit between private parties, the defendant would enter a plea of justification and could defeat the accusation by establishing the truth of the statement alleged to be libelous.]]
[(a) ]See Serjeant Glynn’s Speech for Woodfall in the prosecution against the latter, by the Attorney-General, for publishing Junius’s letter to the King. [[De Lolme quotes the sense but not the exact words of Serjeant John Glynn’s arguments in defense of Henry Woodfall during his 1770 trial for seditious libel for the publication of Junius’s “Letter to the King,” which appeared in the Public Advertiser on December 19, 1769. De Lolme earlier discussed the episode in book 1, chapter 13, p. 128, note a.]]
[4. ]The votes and resolutions of the House of Commons were printed in the London Gazette, which was “published by authority” and carried government information and official notices. Newspaper reports of speeches and debates within the House of Commons, however, were traditionally prohibited as a matter of well-settled parliamentary privilege. After 1771, the Commons ceased to enforce this privilege, and detailed accounts of parliamentary deliberations became a staple of England’s periodical press.
[(a) ]I shall take this occasion to observe, that the liberty of the press is so far from being injurious to the reputation of individuals, (as some persons have complained) that it is, on the contrary, its surest guard. When there exists no means of communication with the Public, every one is exposed, without defence, to the secret shafts of malignity and envy. The Man in office loses his reputation, the Merchant his credit, the private individual his character, without so much as knowing, either who are his enemies, or which way they carry on their attacks. But when there exists a free press, an innocent Man immediately brings the matter into open day, and crushes his adversaries, at once, by a public challenge to lay before the public the grounds of their several imputations.