The next point is to consider it as a question of constitutional policy, that is, whether the decision of the question of libel ought to be left to the judges as a presumption of law, rather than to the jury as matter of popular judgment, as the malice in the case of murder, the felony in the case of stealing. If the intent and tendency are not matters within the province of popular judgment, but legal and technical conclusions, formed upon general principles of law, let us see what they are. Certainly they are most unfavourable, indeed, totally adverse, to the Constitution of this country.
Here we must have recourse to analogies, for we cannot argue on ruled cases one way or the other. See the history. The old books, deficient in general in Crown cases furnish us with little on this head. As to the crime, in the very early Saxon Law, I see an offence of this species, called Folk-leasing, made a capital offence, but no very precise definition of the crime, and no trial at all: see the statute of 3rd Edward I. cap. 34. The law of libels could not have arrived at a very early period in this country. It is no wonder that we find no vestige of any constitution from authority, or of any deductions from legal science in our old books and records upon that subject. The statute of scandalum magnatum is the oldest that I know, and this goes but a little way in this sort of learning. Libelling is not the crime of an illiterate people. When they were thought no mean clerks who could read and write, when he who could read and write was presumptively a person in holy orders, libels could not be general or dangerous; and scandals merely oral could spread little, and must perish soon. It is writing, it is printing more emphatically, that imps calumny with those eagle wings, on which, as the poet says, "immortal slanders fly." By the press they spread, they last, they leave the sting in the wound. Printing was not known in England much earlier than the reign of Henry VII., and in the third year of that reign the Court of Star Chamber was established. The press and its enemy are nearly coeval. As no positive law against libels existed, they fell under the indefinite class of misdemeanours. For the trial of misdemeanours that court was instituted, their tendency to produce riots and disorders was a main part of the charge, and was laid, in order to give the court jurisdiction chiefly against libels. The offence was new. Learning of their own upon the subject they had none, and they were obliged to resort to the only emporium where it was to be had, the Roman Law. After the Star Chamber was abolished in the 10th of Charles I. its authority indeed ceased, but its maxims subsisted and survived it. The spirit of the Star Chamber has transmigrated and lived again, and Westminster Hall was obliged to borrow from the Star Chamber, for the same reasons as the Star Chamber had borrowed from the Roman Forum, because they had no law, statute, or tradition of their own. Thus the Roman Law took possession of our courts, I mean its doctrine, not its sanctions; the severity of capital punishment was omitted, all the rest remained. The grounds of these laws are just and equitable.
Undoubtedly the good fame of every man ought to be under the protection of the laws as well as his life, and liberty, and property. Good fame is an outwork, that defends them all, and renders them all valuable. The law forbids you to revenge; when it ties up the hands of some, it ought to restrain the tongues of others. The good fame of government is the same, it ought not to be traduced. This is necessary in all government, and if opinion be support, what takes away this destroys that support; but the liberty of the press is necessary to this government.
The wisdom, however, of government is of more importance than the laws. I should study the temper of the people before I ventured on actions of this kind. I would consider the whole of the prosecution of a libel of such importance as Junius, as one piece, as one consistent plan of operations; and I would contrive it so that, if I were defeated, I should not be disgraced; that even my victory should not be more ignominious than my defeat; I would so manage, that the lowest in the predicament of guilt should not be the only one in punishment. I would not inform against the mere vender of a collection of pamphlets. I would not put him to trial first, if I could possibly avoid it. I would rather stand the consequences of my first error, than carry it to a judgment that must disgrace my prosecution, or the court. We ought to examine these things in a manner which becomes ourselves, and becomes the object of the inquiry; not to examine into the most important consideration which can come before us, with minds heated with prejudice and filled with passions, with vain popular opinions and humours, and when we propose to examine into the justice of others, to be unjust ourselves.
An inquiry is wished, as the most effectual way of putting an end to the clamours and libels, which are the disorder and disgrace of the times. For people remain quiet, they sleep secure, when they imagine that the vigilant eye of a censorial magistrate watches over all the proceedings of judicature, and that the sacred fire of an eternal constitutional jealousy, which is the guardian of liberty, law, and justice, is alive night and day, and burning in this house.
But when the magistrate gives up his office and his duty, the people assume it, and they inquire too much, and too irreverently, because they think their representatives do not inquire at all.
