in the case of Carr, between the time of his pleading to the information against him, and that of his trial, as follows: "Dies Mercurii proximè post tres septimanas sanctæ Trinitatis. Anno 32 Car. 2 Regis-Ordinatum est quod liber intitulat. The Weekly Packet of Advice from Rome' non ulterius imprimatur vel publicetur per aliquam personam quamcunque; Per Cur." Scroggs was in the habit of issuing General Warrants for the search of libels, and for the arrest of their authors, printers and publishers, of which the following is a specimen : 66 Angl. ss. Whereas there are divers ill-disposed persons, who do daily print and publish many seditious and treasonable books and pamphlets, endeavouring thereby to dispose the minds of his Majesty's subjects to sedition and rebellion: and also infamous libels, reflecting upon particular persons, to the great scandal of his Majesty's Government. For suppressing whereof, his Majesty hath lately issued out his royal proclamation; and for the more speedy suppressing the said seditious books, libels and pamphlets, and to the end that the authors and publishers thereof may be brought to their punishment:-These are to will and require you, and, in his Majesty's name, to charge and command you, and every of you, upon sight hereof, to be aiding and assisting to Robert Stephens, Messenger of the Press, in the seizing on all such books and pamphlets as aforesaid, as he shall be informed of, in any booksellers' or printers' shops or warehouses, or elsewhere, to the end they may be disposed of as to law shall appertain. Also if you shall be informed of the authors, printers, or publishers of such books or pamphlets, as are above mentioned, you are to apprehend them, and have them before one of his Majesty's Justices of the Peace, to be proceeded against according to law. Dated Nov. 29th, 1679. W. SCROGGS. "To R. Stephens, messenger of the press, and to all mayors, sheriffs, bailiffs, constables, and all other officers, whom these may concern." In one of the trials in the course of the famous discussions in the reign of George III. concerning General Warrants, and the Seizure of Papers in cases of alleged seditious libel, Lord Camden, as Chief Justice of the Common Pleas, thus expresses himself, in reference to that Resolution of the Judges concerning the Press which was related by Scroggs: "These are the opinions of all the twelve Judges of England; a great and reverend authority. Can the twelve Judges extrajudicially make a thing law to bind the kingdom by a declaration that such is their opinion?—I say, No-It is matter of impeachment for any Judge to affirm it. There must be an antecedent principle or authority, from whence this opinion may be fairly collected; otherwise the opinion is null, and nothing but ignorance can excuse the Judge that subscribed it. Out of this doctrine sprang the famous General Warrant, and it is not unreasonable to suppose that the form of it was settled by the twelve Judges that subscribed the opinion." It may be observed that, as the Constitution recognises an unwritten as much as a written law, and does not furnish any severer test of what is unwritten law than the opinions of those Leges loquentes, the Judges, the unanimous decision of the Bench on the subject of unlicensed publications must have been regarded, in the reign of Charles II., as much a rule binding on Courts and a subject of terror to Authors, as any Statute enacted by King, Lords and Commons. It may be added, that the Common Law has been modified or changed in every reign from Cœur de Lion to Victoria, and that usually upon the plausible ground that past decisions were unsupported by "antecedent principle or authority." The Common Law by its transformations in different reigns, especially on political matters, is apt to elude the grasp of the Student, like the sea-monster Proteus: Verum ubi correptum manibus vinclisque tenebis, Aut acrem flammæ sonitum dabit, atque ita vinclis Notwithstanding the expiration of the Licensing Act, and the supposed Saturnalia of Authors, the reader may observe that between 1679 and 1785, State Trials at least continued to be licensed, as now appears by the leaves opposite their title-pages. Several of these licenses by Scroggs, Pemberton and Jeffreys, are set forth in Howell's Collection, and bear dates during that interval. In a printed Report of Sydney's trial in the Author's possession, there is the following imprimatur of Jeffreys: "I do appoint Benjamin Tooke to print the tryal of Algernon Sidney Esquire, and that no other person presume to print the same. GEO. JEFFREYS1." Chief Justice Scroggs admitted, in answer to a complaint preferred against him before the Privy Council by Oates and Bedloe, the contrivers of the Popish Plot, that he had sold by bargain the exclusive right of publishing certain specified trials: he was charged with having sold the trials of some priests, and having taken twenty guineas in earnest, and then sold his imprimatur to another party, refusing to return the twenty guineas; and with having sold the exclusive right of publishing Sir G. Wakeman's trial (which occurred after the expiration of the Licensing Act), for one hundred and fifty guineas, but, in case that trial lasted more than one day, he was to receive an additional hundred guineas. Scroggs treated these charges as relating merely to matters of contract with other men, with which Oates and Bedloe the complainants had no concern; but he said that he would so far notice them as to state that in the keeping of 1 In the only report extant of Sydney's trial, that authorised by Jeffreys, there is no detail of Sydney's challenges. Burnet writes that Jeffreys struck them out. They are stated in the Act by which Sydney's attainder was reversed. In arrest of judgment it is mentioned that Sydney objected that his Jury had not been freeholders, and that Jeffreys answered, "You had the opinion of the Court in that matter before: by the statute of Queen Mary, the trial of treason was put as at Common Law, and there was no such challenge at Common Law." the twenty guineas earnest money, he, in fact, lost forty guineas, by breach of the bargain. After the dissolution of the last Parliament of Charles II., it would appear that no newspaper was suffered to be published without the King's allowance, and that his allowance was given exclusively to the London Gazette, with an occasional broadside affording somewhat fuller details of what facts the Government wished the People to know upon the faith of its own colouring. As to commentaries on news, Roger L'Estrange, in his Observator, was appointed to publish thoughts for the nation upon the communications which Government thought politic to impart. II. Penalties for Writings. The Press may be placed in a state of miserable subjugation by the dread of penalties, notwithstanding it be exempt from the sponge of a Censor. Who, at Rome, where there was no Licenser, would have laid bare the profligacy of Tigellinus the Emperor's favourite, at the hazard pointed out by Juvenal: Pone Tigellinum: tædâ lucebis in illâ Quâ stantes ardent, qui fixo gutture fumant. The punishment of Authors for their writings during the reign. of Charles II., has been adverted to, in treating concerning the offences of treason and sedition. Of alleged treasonable papers which were the subjects of prosecution in that reign, the most remarkable were the manifesto of the Association1, found in Shaftesbury's closet, Algernon Sydney's unpublished political disquisition, and Fitzharris's paper for which he was both impeached and indicted. The new treasons created by a Statute of Charles II., it has been seen, were construed to have particular 1 See a translation of Latin verses on a picture of Shaftesbury, with a notice of the Charta Associatorum diros testata furores, in the Author's Gems of Latin Poetry, Ch. VII. Gem VII. reference to writing and talking traitors. In the opinion of Lord Nottingham, Milton deserved to have been hanged. The laws of treason and sedition were visited with ruthless severity on printers and booksellers, even where their only motive appears to have been the earning of a pittance. In the case of Twyn (mentioned in a former chapter as reflecting discredit, in the opinion of Lord Campbell, upon Clarendon), he was a poor printer, who had printed a copy of a disquisition on abstract principles of government, that had been delivered to him by an unknown hand. On his imploring the Chief Justice who tried him to intercede on his behalf, the Chief Justice replied that, in such a case, "he would not intercede for his own father." Twyn was executed, and his head was affixed to the top of Ludgate. It may teach the caution with which the extant reports of everything relating to State Trials in ancient times are to be received, to mention that three printers who were tried about the same time as Twyn, for publishing the dying speeches and prayers of the Regicides, were told by Chief Justice Hyde, that the King had dealt very mercifully with them not to have had them indicted for High Treason. These prisoners were severely fined, and stood in the pillory at the Exchange and in Smithfield; they were further sentenced to remain in prison till the next gaol delivery, and then, in Court, to make such confession as should be dictated; after which they were to remain in prison during the king's pleasure, and when discharged were to enter into recognizances of £400 each, with two sureties each of £200, "not to print or publish any books but such as should be allowed of." For the offence of inquisitiveness concerning a fact of which the Government thought it politic to prescribe an infallible belief, one Thompson, a printer, was tried before Chief Justice Pemberton; he having printed a publication tending to shew that Sir Edmundbury Godfrey had committed suicide. His sentence was that he should pay a fine of £100, and should stand in the |