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* We must allow a latitude to the free discussion of the merits and demerits of authors and their works ; * otherwise we may task, indes i, of the liberty of the picss, but beie will be in reality an end of it.”—Re
CHIEF JUSTICE OF THE COURT OF KING'S BENCH. '
| My Loop ; - Either that liberty, of Eich we have boasted, and do boist, so och, is a mere sound, invented by poliloans for purposes resembling those for loch priests invented relicks and penances, and for which methodist preachers pretend to inspiration ; either the whole thing is, in short, a specious and delusive fraud, or the result of the Action, recently tried before ur lordship, in the case of Carr against ood and Sharpe, is not only of greater sportance to the nation than the recent ctories over the French, in Portugal, but greater importance that would be a series f victories, by which Buonaparte should *e overthrown. For, what do we promise onelves, as the fruit of such victorics : Why, the secure enjoyment of our lives and property; security from that oppresion, which we should, in all probability, *xperience at his hands. This, after ail, # the sole end of all our sacrifices and of the dangers and sufferings of our countrymen who are in arms. There is no other otional purpose that we can have in view. This being the case, I am pretty confident, that the public, when they duly reflect upon the matter, will be convinced, that, on the oth of July last, a greater victory was gain.
to for England under your lordship, than
has been gained, by land or sea, for many years past. The doctrines, laid down by your lord*p, upon this memorable occasion, seem, *leed, to have beet; restricted as to their ap"Pication. They seem to have been, rather - orially, confined to “ authors and their "works; ” but, in pursuance of the purPose for which alone I now address you, I shall, I think, succeed in convincing your *hip, that this restriction cannot subsist, *istently with reason and justice. I have, ow, given an abridgment of the Report " the Trial, in which I have retained all to was said by your lordship; but, that
we may have the matter fairly before us, I will here shortly state the substance of your doctrines, supposing what you said to have been correctly reported; for, as to myself, I, of course, who was not, present at the trial, can state nothing from my own knowledge. I take this report as I find it; I lay it before my readers as being a report, given; in print, by another person ; I take it up, I treat it as a book; and, if it be what it professes to be, it contains the words uttered by you upon the occasion referred to. The first of these words I have taken for my motto. The next time you speak, you say, that we must really not cramp observations upon authors and their works; that they should be liable to exposure, to criticism, and even to ridicule, if their works be ridiculous; that, otherwise, the first who writes a took upon any subject, will maintain a monopoly of sentiment upon it; that thus vice and error will be perpetuated, and so we should go on to the end of time ; and that you cannot conceive that an action is maintainable on such ground. Upon Mr. Garrow's observing, that, though an author's book might be ridiculed, the critics had no right to endeavour to destroy him altogether as an author, your lordship said, that you did not know that ; that, (speaking in the interrogative form) suppose a man publihsed a book injurious to public morals, of infinite mischief to the public taste, containing bad maximo of government, or any thing else that ought to be decried, are we not at liberty to expose that work Aye, and expose the author of it too, as far as he is connected with the work, and that in the most pointed language of wit, humour, or ridicule; that, a critic, in such case conferred a benefit on the public; that the destruction of the author's reputation was irothing; that it was a reputation which ought to be destroyed; that it was idle to talk of the liberty of the press, if one man might not write freely upon the work of another; that, if there had been an attack upon the moral character of the author, or any attack on
his character unconnected with his work,
the law would have afforded him protec.
tion. Upon Mr. Garrow's saying, that the
defendairs had not destroyed Cart's reputo o
...tion fairly, your lordship snid that he must show that it was not fairly done; and, upon his replying, that the caricature was a proof of unfairness, your lordship bade him go on with his case.—in your charge, after having repeated your sentiment respecting the public utility of writing down bad books, you said, that this, however, was applicable to fair and candid criticisin; that, as to the loss sustained by an author from such a cause, it was what you, in the law, called damnum absole injurià, a loss which the law does not consider as an injury, because it is a loss which he ought to sustain, a loss of fame and profits to which he was never entitled; that, if it were otherwise, you did not know where we were to stop ; that you knew of nothing that more threatened the liberty of the press, in the days in which we live, than to give encouragement to this species of action ; that, however, you wished not to be misunderstood, for that, if there had been any thing in the criticism, of a libellous tendency, wholly foreign to the work, or unconnected with the author of it, as embodied in it, the action was maintainable ; that neither yourself nor the jury had ever appeared before the - world in the character of an author, or at least you never had j that, if you had, you should not think yourself entitled to maintain an action against any body else, who
thought the action was maintainable.— After the verdict was given, your iordship (a thing not very common, I believe) thought
necessary 3 caution the audience gainst mis,uderstanding of what had passed. I hone nobody will understand, fom the re , of this trial, that there is the least contenance given to slander, or to ridicule any author, any more than any other lord; it wał, unless such ridicule be connected with his wor's, and the author is coodied with his work; for courts of justice are as tender of the moral characters of all men, whether they be authors or not, as they are firm in the mainte. nance of the right of every individual, to go a free opinion, on every polication of a literary work."
lt is, my lord, into the reasonableness
and the justice of these reservations and restrictions that I now propose to inquire. FIRST, as to the qualification of the word “criticism.” Your lordship would have it to be flir, and, in one place, it would stem, that you insist upon its being candid as well as fair. I always thought, that the wor's were synonymous ; but, whatever be thor meaning, they express that quality which you hoid to be necessary, in order to justy the criticism, though the author be embodied in his work. But, my lord, be this quality what it may, who is to tell us who ther it exist or not Evidence can be giver as to truth or falsehood; as to the obedi ence or disobedience of any law; as to thi performance or breach of any well know mcral duty; as to any thing, in short, the is clearly defined and settled. About wh: is fair who can say that any thing has bet Where is the standard where! we are to judge of fairness 2 It is evide:
that there can be no such standard, and th:
the point must always turn upon mere op nion. What would this question of fairn: come under, then, the law or the fact the case ? Who would settle the point, judge or the jury “ One of the jn upon this trial, appeared to have a great sire to shew himself learned in the law but, it will hardly be contended, that juri or that courts of justice, can be, or out to be, made into supervisors of the taste the press. A tyrannical judge in Ame: added the quality “ decent,” as essentil publications to be tolerated. Who wis be the jodge of the decency There A maxim, which says, “ miserable are “ who are subjected to laws of uncro “ operation.” Indeed, where the opé tion is not uniform, and where the prio ple is not clearly laid down and well know it is an abuse of words to call the thing to which always implies something wherto man's doities or rights are defined. An this reservation, however, I think we no not be very uneasy, as the result of trial, together with the opinions of lordship, decidedly in favour of that rest enables us to proceed to the length of imp ting to a man (no, not a man, an anth’ all corts of felly; to exhibit him as a fo a lunatic and a vagabond in point of prop
seem from this report of your lordship's language, be not only an author of a written and published work, but, he must also embody himself in the work. What is meant by this embodying work I do not very clearly perceive. In other places it is said, that he is to be ridiculed no further than he appears in connection with his work ; and that, unconnected with his work, he is to be treated with all the tenderness which the law takes care to provide for the individual. But, my lord, who is to settle these nice points of connection and incorporation How am I to know what is meant by this connecting and embodying Suppose I were to take up a book written for the purpose of persuading me, that I am very wrong indeed in objecting to the ministry of the day ; suppose this work has for its author some man who lives upon the taxes and whose wife lives upon them too; suppose the whole family to be chim-deep in |sinecures and reversions; must I not speak of these ; must I not expose the author's motives for his work ; must I not, if my pen fail me, call in the aid of the pencil to exhibit this author in the act of picking John Ball's pocket with one hand, while he holds p, in the sinope of a pair of winkers, i.is jok in the other hand; must I not hang a bel, marked plunder, out of his pocket;
nd must I not put his wife and children in
character of sturdy paupers, jeering those from whom they receive their daily bread 2 Assuredly I ought to do all this; and yet this author might so write his book as not to embody himself with it, in any hape whatever; and I might be told, peraps, that his places and pensions had noing at all to do with the merits or demerits the ministry ; that I had gone into a subforeign to the book; and that, there, I ought to be punished as a libeller; hereas it would appear to me quite necesy to go into these matters in order to shew motive of the author, and that for the rpose of preventing his book from doing ic mischief. It is not at all necessary an author to connect himself with his k. He need not write in the form of h connection. He may, like the news!. people and the reviewers, write in the yie royal, and call himself we ; or, he
may unite in the impersonal altogether. There are very few instances, in which an author can be said to embody himself in his work. It can, indeed, only be when he relates his own adventures, or gives an account of transactions, in which he has personally borne a. part. And why, my lord; why, I beg leave to ask, should this
particular description of authors be exposed to ridicule inore than any other description ? shy is it so very necessary to expose their folly and destroy their reputation Of what particular harm is their success In what way is it entitled to any extraordinary quantity of legal reprobation ? Why should these fools be outlawed any more than the rest 2 Your lordship may see a very sufficient reason for the dis inction ; but, I confess that I can see no reason at all for it. Every man, who writes and publishes, challenges the criticisms of the world. The very act of writing the book embodies him with it. It is is his act. It belongs to him. It is the picture of his mind. It is a part of himself. The critic has a right to take the man and the book together, and to criticise them, and, if he pleases, ridicule, or endeavour to ridicule them both. If he has not this right, he has no right at all; he is never safe; and he had better lay aside his ped. If he hinself be foolish in his criticism; if he te unfair, or malignant, why, the world, who will soon perceive it, will not fail to punish him in the only suitable manner, without any of the aid of judges and juries. There was a still further qualification, too : not only must the man have published his acts, or his work; but, he must have embodied himself with the work, and the work must 'e , idiculous. All this must be seen to exist before the ridicule could be justified. But, here again we have our old difficulty; who is to determine, whether the work be ridiculous or not The jury are to judge of the alledged offence under the direction of the judge ; but, it will not be pretended that this is a tribunal, wherein to try the merits or denierits of a literary work. What, then, becomes of this qualification ? The critic will say, that the work is ridiculous; the author will say that it is not ; even the public may be divided upon the point ; and who in all the world is to settle it Your lordship says, and very truly, that it is of great public utility to expose ridicolous works, and to destroy the reputation of their authors; but, if I should be crg, ed in an act of great public utility of thos it, how should I fare if your lordship aid the jury should happen to think that not rigoulous, which I took for ridiculous Iow on I to know that you will be of my onion 2 And must 1 not, then, be continuatiy in a state of uncertainty ; and must to a poss, thus shackled, be infinitely worse than no press at all 2 The fool or rogue runs to risk, either in his writings or publishings; while his critic is never safe for a monient. Sir John Carr saw this, and, therefore, ho
thought to terrify his critic into silence. Your lordship has now set your face against this species of action; and, it was high time; for if it had succeeded, even the most stupid part of the people would have laughed at the talk of “ the liberty of the press.” That talk would not have deceived any creature capable of counting its fingers. The most important restriction, however, relates to the quality, or, rather, the pro fession, of the person censured, or ridiculed. Sir John Carr had evidently conceived, that the feelings of an author were no more to be hurt with impunity than the feelings of any other sort of man ; and, as he had heard, that it was a libel to hurt the feelings of any person, by the means of the press, he expected, of course, to hear your lordship reprobate the conduct of his critics. He could not have anticipated what took place. It was quite just and reasonable, to be sure, that he should be told, that his work was liable to ridicule; that the ridicule naturally grew out of the demonstrations of his own want of talent ; that if it were forbidden to ridicule such a work and such an author, great public mischief would therefrom arise, and that the liberty of the press would be a farce too contemptible to be borne. All this was very right ; but, l:e had heard it laid down, that the line of interdiction began when the feelings of any person were hurt. No matter who or what he was. No matter what his actions or his character. He had heard of no restrictions, reservations, or qualifications ; he had been told; he had heard it laid down as a maxim of law; he had heard it so laid down in a charge to a jury; he had seen a verdict of guilty given upon the principle ; and that principle, without any qualification, was, that no person had a right to use the press for the purpose of turning into ridicule either the talents or the person of any one ; and that, where ever a publication wounded the feelings of any person, there the line of interdiction began. He had heard of no exception with respect to authors and their works. He had proof that both his talents and his person had been turned into ridicule. He had proof, that, in a picture as well as in words, he had been exhibited to the public as a man of most despicable talents, as a frothy fool, as a lunatic at large, as a sort of literary vagabond. He had clear proof of all this ; he had proof besides, that he had, from this attack, sustained a special damage to a considerable amount ; and it was quite impossible for any one not to be contaggio gs had, by the alled
terms, indeed, but by
then, as he had heard it laid down as a maxim of law and justice, that it was a
| crime to ridicule the talents or wound the
feelings of any person, why should not he bring his action as well as another ? Why, for the reasons stated by your lordship. Most excellent reasons you have given us, why his action should not be maintainable ; but none at all, that I can discover, why the plaints of persons, not authors, should be any more attended to than his. None, that I can discover, why the act of bock-writing should be more exposed to criticism than any other of the acts of men; none; no, none at all, why authors should not have feelings as well as other people ; nor any reason whatever why the talents of others should not be exposed to ridicule as well as the talents of authoris It is necessary, as your lordship well observed-, to expose and destroy a silly or wicked bo and the reputation of its author along with it, because such books do great pub mischief, and because, if not put down exposure,they would continue to do misco to the end of time. But, my lord, the are good books as well as bad ones; are authors whose works do good inste mischief; and, therefore, I can see reason whatever why the act of book-witti,
should be more exposed to public cens
and ridicule than any other act of man Your lordship was so good as to signify the liberty of the press was somethingy. valuable to this nation. Not in dil implication # lordship certainly did say this. Now, I take the liberty of asking your lordsh what way you think it can operate to advantage of this nation ? In the praise ; in bedawbing all the rich r and fools of the time with praise as wé all the wise and virtuous men Hà this. In confining its praises to the wise the good 2 This would be very lau and might be of some littie use o: the word liberty would be without a m ing ; for the devil is in it if we need as leave to praise any one, particularly i be in a public capacity, or in any caps which must make him desirous of poo ing the good opinion of the world. If lordship means, as I think you must, the liberty of the press is valuable, as means of detecting and exposing vice folly; then, give me leave to say, d cannot, consistently, I will not says justice and reason...... but it cannot sistently with common sense, with baret mon sense, be restricted to authors their writings; for what would the
then amonut to but this : a liberty possessed by the press of combating its own vices and follies, and of doing, nothing more ? Such a press would be totally unworthy of praise, or of protection of any sort. To speak of such “ liberty" as a valuable thing; to make it a matter of boast; to hold it up as one of the means of preventing the people from being enslaved, would be an instance of absurdity surpassing any of those pointed at in the works of sir John Carr. Why, my lord, this is a sort of |lberty, that the Emperor Napoleon grants to his press; and, why should he not He would be a fool indeed if he cared what authors said of one another and of one anoother's books. It may be an amusement to him to witness their quarrels; and, in this lway, the press may be, with the public, as useful as a puppet-shew, or any thing else that serves to produce a momentary oblivion of their cares and their sufferings. All that Napoleon forbids his press to do, is to medodle with him, his government, his army, his navy, or any of his family. That is all. The press may praise all these indeed; it has full liberty to do that ; but, it must neiother censure nor ridicule any one of them ; it has no liberty to do that ; and it is honestly told so; there is no sham in the case; o delusion ; no talk about liberty of the ress; those who write and publish are plainly told, that if they meddle with these matters, they shall be punished; and, accordingly, they do not meddle with them, nor are they guilty of the base hypocricy to pretend that they have a free press. . It must, I think, my lord, be quite evident, that, if censure and ridicule, if exposure of vice and folly, if depreciating talents or character, were to be allowed only in cases where the party assailed was the author of a book, or a public writer of some de
scription, the liberty of the press could, at
the utmost, effect no other good object than that of counteracting the vices and follies of the press itself; it could not possibly produce any balance in favour of the press, which, in that case, could, as far as related to freedom, be of no possible use, Suppose, for instance, that I write a book, containing principles subversive of the constitution, and that some critic exposes both me and my book to such contempt, that the book is at Once destroyed and my reputation is ruined. I am rightly served, and the critic is, it now would appear, not exposed to the fangs of the law; but, it would be quite silly, upon an occasion like this, to boast of the liberty of the press as a public good; for, supposing the critic to have completely succeeded, ali
that he has done is to place matters where they were before, and where they would have remained if no press at all had exist, d. Your lordship very judiciously cited the instance of Mr. Locke and sir Robert Filmer, and observed that the former did great good in writing down the latter; though, between you and I, my lord, I much question, whether, if Mr. Lockc lived in the present day, he would be much of a favourise. But, what mighty thing did Mr. Locke do here He answered sir Robert Filmer; he put him down. I doubt the fact; for Filmer's principles are much more in vogue than those of Mir. Locke. But, admit the fact, all that Mr. Locke did, with the aid of the press, was to prevent sir Robert Filmer from doing harm with the press. Between them the press, at the very best, could do no good, and it might do some harm. Who would not think a man foolish, aye, “ the “ greatest fool that ever walked the earth without a leader,” who should keep a fox in his poultry-yard, and a dog to watch the fox ; and who should boast of the valuable services rendered him by the dog? “Why, “ you stupid ass,” his neighbour would say to him, “for what do you keep either dog “ or fox ; why not hang them both up at once ; and give to some really useful animal the food by which they are sustain“ ed; " I shall be told, perhaps, that the press is of great public utility independent of this sort of use of it. That it communicates a great deal of knowledge to the public at large, which would, were it not for the press, be confined to the possession of comparatively a very few persons. This may be true; but, this is not our subject, my
lord. We are talking about the liberty of .
the press. It is not the right to write and to print and to publish, upon which I am taking the liberty to address your lordship, but the right to censure and to ridicule, by the mighty means of writing and printing and publishing. There are a multitude of books, as connected with which the liberty of the press has no meaning. In lifting up my eyes, the first books 1 see before me, are Marshall's Gardening, Pontey's Pruner, Bonnycastle's Alegebra, Code Diplomati. que, Vauban's Fortification, and Daniel's Rural Sports. Why, my lord, the lil-r:y of the press has no more to do with books like these than it has to do with the making of shoes or the blacking of shoes; and, as I have, I think, pretty clearly shewn, that it is to prove oneself void of even common sense to set a value upon the liberty of the press, if that liberty is to extend no fu, uick