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378.: THE FRENCH LAW AGAINST THE PRESS SPECTATOR, 19 AUG., 1848, P. 800 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXV - Newspaper Writings December 1847 - July 1873 Part IV [1847]

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The Collected Works of John Stuart Mill, XXV - Newspaper Writings December 1847 - July 1873 Part IV, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).

Part of: Collected Works of John Stuart Mill, in 33 vols.

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378.

THE FRENCH LAW AGAINST THE PRESS

SPECTATOR, 19 AUG., 1848, P. 800

On 11 Aug., 1848, the National Assembly in France promulgated a law severely restricting the freedom of the press (Bull. 60, No. 621), which Mill here quotes in translation. The article, headed “[From a Correspondent.],” is described in Mill’s bibliography as “An article headed ‘from a Correspondent’ on the French law against the press, in the Spectator of 19th August 1848”

(MacMinn, p. 70).

the decree against the press, just passed almost with unanimity by the National Assembly of France, is one of the most monstrous outrages on the idea of freedom of discussion ever committed by the legislature of a country pretending to be free. It is the very law of Louis Philippe—the September law, once so indignantly denounced—with scarcely any alteration but the substitution of the word “Republic” for “Monarchy.”1

This precious specimen of Liberal legislation declares punishable by fine and imprisonment all attacks on “the rights and authority of the National Assembly—on the rights and authority which the members of the Executive derive from the decrees of the Assembly—on the Republican institutions and the Constitution—on the principle of the sovereignty of the people and of universal suffrage—on the liberty of worship, the principle of property, and the rights of family”; [Art. 1] besides which, it ordains similar punishments for “exciting hatred and contempt towards the Government of the Republic,” [Art. 4] and for “public outrage committed (in their public character) against one or more members of the National Assembly, or against a Minister of any religion paid by the State.” [Art. 5.]

This list of subjects on which discussion is prohibited, or permitted only on one side, includes all the great political and social questions of the age. If only one set of opinions is to be permitted on any matter which involves the right of property, the rights or obligations of family, the question of Republicanism, of universal suffrage, even the particular constitution which the Assembly may hereafter adopt, or the rightfulness of abolishing that constitution—what are the subjects, worth discussing, on which freedom of political discussion is to exist? “The acts of the Executive,” says the decree. “The present provision is not to affect the right of discussion and censure on the acts of the Executive and of the Ministers.” [Art. 4.] A most liberal concession, truly! The law is worse, with only this reservation in favour of freedom, than if there were no reservation at all; for the most tyrannical court of justice which could now exist in civilized Europe would reserve more than this. It is not declared that even the actions of the Legislature may be censured, but only those of the Executive; and with regard to laws or institutions, no liberty of censure is reserved at all. There was a wretched pretence by one or two of the speakers, that no restraint was intended on the “freedom of philosophical discussion”—that nothing was to be forbidden but incitements to hatred and contempt.2 But the decree says nothing of the kind. The decree prohibits “any attack.” [Art. 1.] The distinction is good for nothing, even if it were made. To say that attacks are permitted, but not incitements to hatred and contempt, would be to say that discussion shall be lawful on condition that it be cold, dry, and unimpressive; that the dull and the indifferent shall be allowed to express opinions, but that persons of genius and feeling must hold their peace. Under such laws, it has been truly said in one of the French journals, Rousseau’s discourse on Inequality never could have been published.3 Nor could any great writings of great reformers, religious or political, have seen the light if such laws had existed and had been obeyed.

How long shall we continue to see the regard for freedom of opinion, which all parties profess while they are on the oppressed side, thrown off by them all as soon as they are in the majority? How much longer must we wait for an example, anywhere in Europe, of a ruler or a ruling party who really desire fair play for any opinions contrary to their own? Is it not shameful that no sooner has a reforming party accomplished as much change in the institutions of the country as itself deems desirable, than it proceeds to decree that every person shall be fined or imprisoned, who proposes either to go a single step further or a step back? We are aware of the allowances to be made for men lately engaged in a desperate and at one time a doubtful contest against a determined attempt at insurrection;4 and we know too that this decree is avowedly a temporary measure, to be hereafter superseded by more deliberate legislation.5 But we lament to say, that in the tone assumed, and the doctrines professed by the speakers, we see no ground of assurance that the permanent measure will be at all different, in spirit and principle, from the transitional one.

It is not, however, for English Conservatives, either Whig or Tory, to indulge any self-complacent triumph over French Republicans. The new act of the French Assembly does not make the laws of France on the freedom of the press worse than those of England have always been. The freedom of the press, in England, is entirely an affair of opinion and custom, not of law. It exists because the laws are not enforced. The law of political libel, as laid down in all the books,6 is as inconsistent with free discussion as the laws of Russia. There is no censure of any established institution or constituted authority which is not an offence by law. And within these few months it has been seen how eagerly the English Parliament, under the influence of a far less degree of panic, have rushed to make the laws against what was deemed seditous speaking or writing more stringent than before.7

A government cannot be blamed for defending itself against insurrection. But it deserves the severest blame if to prevent insurrection it prevents the promulgation of opinion. If it does so, it actually justifies insurrection in those to whom it denies the use of peaceful means to make their opinions prevail. Hitherto the French Government has been altogether in the right against all attempts to overthrow it. But by what right can the Assembly now reprobate any future attempt, either by Monarchists or Socialists, to rise in arms against the Government? It denies them free discussion. It says they shall not be suffered to bring their opinions to the touchstone of the public reason and conscience. It refuses them the chance which every sincere opinion can justly claim, of triumphing in a fair field. It fights them with weapons which can as easily be used to put down the most valuable truth as the most pernicious error. It tells them that they must prevail by violence before they shall be allowed to contend by argument. Who can blame persons who are deeply convinced of the truth and importance of their opinions, for asserting them by force, when that is the only means left them of obtaining even a hearing? When their mouths are gagged, can they be reproached for using their arms?

[1 ]For the substituted terms, compare Arts. 1, 2, and 4 of this decree with Arts. 2-5 of Bull. 155, No. 356 (9 Sept., 1835).

[2 ]E.g., in the speeches on 10 Aug. by Jules Favre (1809-80), Secretary-General of the Ministry of the Interior in the Provisional Government, and by Albin de Berville (1788-1868), avocat général under the Provisional Government (Moniteur, 1848, both on p. 1968).

[3 ]Rousseau, Discours sur l’origine et les fondements de l’inégalité parmi les hommes (Amsterdam: Rey, 1755). The comment is in Réforme, 12 Aug., 1848, p. 1.

[4 ]For details, see No. 376.

[5 ]In reporting the bill on 1 Aug. to the National Assembly, Berville said that it, like its companion, the Décret relatif aux cautionnements des journaux et écrits périodiques (Bull. 60, No. 616 [9 Aug., 1848]), was “transitoire” (Moniteur, 1848, p. 1847).

[6 ]For earlier discussion, see No. 29; the law had not changed in the intervening quarter-century.

[7 ]Through much of April, debates in the British parliament had centred on “A Bill for the Better Security of the Crown and Government of the United Kingdom,” 11 Victoria (7 Apr., 1848), PP, 1847-48, II, 229-32, enacted as 11 Victoria, c. 12 (22 Apr., 1848). For the prolonged and anxious debate, see PD, 3rd ser., Vol. 98, cols. 20-58, 73-135, 152-75, 223-59, 340-87, 417-31, 453-80, 485-507, and 534-6.