ON FREEDOM OF SPEECH AND THE PRESS.

Published in the Pennsylvania Gazette, of November, 1737. FREEDOM of speech is a principal pillar of a free government: when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the actions of the magistrates; this privilege in all ages has been, and always will be abused. The best of men could not escape the censure and envy of the times they lived in. Yet this evil is not so great as it may appear at first sight. A magistrate who sincerely aims at the good of society, will always have the inclinations of a great majority on his side, and an impartial posterity will not fail to render him justice.

Those abuses of the freedom of speech, are the exercises of liberty. They ought to be repressed; but to whom dare we commit the care of doing it. An evil magistrate intrusted with power to punish for words, would be armed with a weapon the most destructive and terrible. Under pretence of pruning off the exuberant branches he would be apt to destroy the tree.

It is certain, that he who robs another of his moral reputation, more richly merits a gibbet than if he had plundered him of his purse on the highway. Augustus Caesar, under the specious pretext of preserving the character of the Romans from defamation, introduced the law whereby libelling was involved in the penalties of treason against the state. This law established his tyranny, and for one mischief which it prevented, ten thousand evils, horrible and afflicting sprung up in its place. Thenceforward every person's life and fortune depended on the vile breath of informers. The construction of words being arbitrary and left to the decision of the judges, no man could write or open his mouth without being in danger of forfeiting his head.

One was put to death for inserting in his history, the praises of Brutus. Another for styling Cassius the last of the Romans. Caligula valued himself for being a notable dancer; and to deny, that he excelled in that manly accomplishment, was high treason. This emperor raised his horse, the name of which was Incitatus, to the dignity of consul; and though history is silent, I do not question but it was a capital crime, to show the least contempt for that high officer of state! Suppose then any one had called the prime minister a stupid animal, the emperor's council might argue, that the malice of the libel was the more aggravated by its being true; and consequently more likely to excite the family of this illustrious magistrate to a breach of the peace, or to acts of revenge. Such a prosecution would to us appear ridiculous; yet, if we may rely upon tradition, there have been formerly, proconsuls in America, though of more malicious dispositions, hardly superior in understanding to the consul Incitatus, and who would have thought themselves libelled to be called by their proper names.

Nero piqued himself on his fine voice and skill in music: no doubt a laudable ambition! He performed in public, and carried the prize of excellence: it was afterwards resolved by all the judges as good law, that whosoever would insinuate the least doubt of Nero's preeminence in the noble art of fiddling, ought to be deemed a traitor to the state.

By the help of inferences, and inuendoes, treasons multiplied in a prodigious manner. Grief was treason :—a lady of noble birth was put to death for bewailing the death of her murdered son:-silence was declared an overt act, to prove the treasonable purposes of the heart:-looks were construed into treason:- —a serene open aspect was an evidence, that the person was pleased with the calamities that befel the emperor: a severe thoughtful countenance was urged against the man that wore it, as a proof of his plotting against the state:-dreams were often made capital offences. A new species of informers went about Rome, insinuating themselves into all companies to fish out their dreams, which the holy

priests, (O nefarious wickedness!) interpreted into high treason. The Romans were so terrified by this strange method of juridical and penal process, that far from discovering their dreams, they durst not own that they slept. In this terrible situation, when every one had so much cause to fear, even fear itself was made a crime. Caligula, when he put his brother to death, gave it as a reason to the senate, that the youth was afraid of being murdered. To be eminent in any virtue, either civil or military, was the greatest crime a man could be guilty of.-O virtutes certissemum exitium.

These were some of the effects of the Roman law against libelling: those of the British kings that aimed at despotic power, or the oppression of the subject, continually encouraged prosecutions for words.

Henry VII, a prince mighty in politics, procured that act to be passed, whereby the jurisdiction of the star-chamber, was confirmed and extended. Afterwards Empson and Dudley, two voracious dogs of prey, under the protection of this high court, exercised the most merciless acts of oppression. The subjects were terrified from uttering their griefs, while they saw the thunder of the star-chamber pointed at their heads. This caution, however, could not prevent several dangerous tumults and insurrections: for when the tongues of the people are restrained they commonly discharge their resentments by a more dangerous organ, and break out into open acts of violence.

During the reign of Henry VIII, a high-spirited monarch! every light expression, which happened to displease him, was construed by his supple judges, into a libel, and sometimes extended to high treason. When queen Mary of cruel memory ascended the throne, the parliament, in order to raise a fence against the violent prosecutions for words, which had rendered the lives, liberties, and properties of all men precarious, and, perhaps dreading the furious persecuting spirit of this princess, passed an act whereby it was declared, "That "if a libeller doth go so high, as to libel against king or

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queen, by denunciation, the judges shall lay no greater "fine on him than one hundred pounds, with two months "imprisonment, and no corporeal punishment: Neither was "this sentence to be passed on him, except the accusation was "fully proved by two witnesses, who were to produce a cer"tificate of their good demeanor for the credit of their re"port."

This act was confirmed by another, in the seventh year of the reign of queen Elizabeth; only the penalties were heightened to two hundred pounds and three months imprisonment. Notwithstanding she rarely punished invectives, though the malice of the papists was indefatigable in blackening the brightest characters, with the most impudent falsehoods, she was often heard to applaud that rescript of Theodosius. If any person spoke ill of the emperor, through a foolish rashness, and inadvertency, it is to be despised; if out of madness, it deserves pity; if from malice and aversion, it calls for mercy.

Her successor king James I. was a prince of a quite different genius, and disposition; he used to say, that while he had the power of making judges and bishops, he could have what law and gospel he pleased. Accordingly he filled those places with such as prostituted their professions to his notions of prerogative. Among this number, and I hope it is no discredit to the profession of the law, its great oracle, sir Edward Coke, appears. The star-chamber, which in the

Si quis imperatori malediceret non statim injuria censetur et eo nomine punitur; sed distinguitur, an ex levitate processerit, et sic contemnitur, an ex insania et miseratione digna censetur, an ex injuria et sic remittenda declaratur.

Note.-A Rescript was an answer delivered by the emperor, when consulted on some difficult question or point in law: The judges were wholly to be directed by it, whenever such a case came before them. For the voice of the king gives vigor to the law, (Voluntas regis habet vigorem legis) is a fundamental principle in the civil law. The rescript mentioned above, was not only delivered by Theodosius, but by two other emperors, Honorius and Arcadius.

time of Elizabeth, had gained a good repute, became an intolerable grievance, in the reign of this learned monarch.

But it did not arrive at its meridian altitude, till Charles I. began to wield the sceptre. As he had formed a design to lay aside parliaments, and subvert the popular part of the constitution, he very well knew, that the form of government could not be altered, without laying a restraint on freedom of speech, and the liberty of the press: therefore he issued his royal mandate, under the great seal of England, whereby he commanded his subjects, under pain of his displeasure, not to prescribe to him any time for parliaments. Lord Clarendon, upon this occasion, is pleased to write "that "all men took themselves to be prohibited under the penalty of "censure (the censure of the star-chamber, which few men "cared to incur) so much as to speak of parliaments; or so "much as to mention, that parliaments were again to be "called."

The king's ministers, to let the nation see they were absolutely determined to suppress all freedom of speech, caused a prosecution to be carried on by the attorney-general against three members of the house of commons, for words spoken in that house, Anno. 1628. The members pleaded to the information, that expressions in parliament ought only to be examined and punished there. This notwithstanding, they were all three condemned as disturbers of the state; one of these gentlemen, sir John Elliot, was fined two thousand pounds, and sentenced to lie in prison till it was paid. His lady was denied admittance to him, even during his sickness; consequently his punishment comprehended an additional sentence of divorce. This patriot having endured many years imprisonment, sunk under the oppression, and died in prison: This was such a wound to the authority and rights of parliament, that even after the restoration, the judgment was reversed by parliament.

That Englishmen of all ranks might be effectually intimidated from publishing their thoughts on any subject, except on the side of the court, his majesty's ministers caused an in