Benjamin Franklin, On the Freedom of the Press, 1737 1

Those abuses of the freedom of speech are the excesses 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 Cæsar, 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 preëminence 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 befell 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, certissimum 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 the Seventh, 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 the Eighth, 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 queen, by denunciation, the judges shall lay no greater fine on him than one hundred pounds, with two months' imprisonment, and no corporal punishment. Neither was this sentence to be passed on him, except the accusation was fully proved by two witnesses, who were to produce a certificate of their good demeanor for the credit of their report.”

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 falsehood. She was often heard to applaud that rescript of Theodosius;* “If any person “Si quis Imperatori malediceret, non statim injuria censetur et eo nomine punitur ; sed distinguitur, an ex levitate processerit, et sic contem speak 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 the First, 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 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 the First 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 Starnitur, an ex insanià, et iniseratione digna censetur, an ex injurià, 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.

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 attorneygeneral 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 Eliott, 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 information, for several libels, to be exhibited in the Star-chamber against Messrs. Prynne, Burton, and Bastwick. They were each of them fined five thousand pounds, and adjudged to lose their ears on the pillory, to be branded on the cheeks with hot irons, and to suffer perpetual imprisonment! Thus these three gentlemen, each of worth and quality in their several professions, viz. divinity, law, and physic, were, for no other offence, than writing on controverted points of church-government, exposed on public scaffolds, and stigmatized and mutilated as common signal rogues, or the most ordinary malefactors.

Such corporal punishments, inflicted with all the circumstances of cruelty and infamy, bound down all other gentlemen, under a servile fear of the like treatment; so that for several years no one durst publicly speak or write in defence of the liberties of the people, which the king's ministers, his privy council, and his judges had trampled under their feet. The spirit of the administration looked hideous and dreadful; the hate and resentment, which the people conceived against it, for a long time lay smothered in their breasts, where those passions festered and grew venomous, and at last discharged themselves by an armed and vindictive hand.

King Charles the Second aimed at the subversion of the government, but concealed his designs under a deep hypocrisy ; a method which his predecessor, in the beginning of his reign, scorned to make use of. The father, who affected a high and rigid gravity, discountenanced all barefaced immorality. The son, of a gay, luxurious disposition, openly encouraged it. Thus, their inclinations being different, the restraint laid on some authors, and the encouragement given to others, were managed after a different manner.

In this reign a licenser was appointed for the stage and the press; no plays were encouraged but what had a tendency to debase the minds of the people. The original design of comedy was perverted; it appeared in all the shocking circumstances of immodest double entendre, obscene description, and lewd representation. Religion was sneered out of countenance, and public spirit ridiculed as an awkward, old-fashioned virtue; the fine gentleman of the comedy, though embroidered all over with wit, was a consummate debauchee; and a fine lady, though set off with a brilliant imagination, was an impudent coquette. Satire, which in the hands of Horace, Juvenal, and Boileau, was pointed with a generous resentment against vice, now became the declared foe of virtue and innocence. As the city of London, in all ages, as well as the time we are speaking of, was remarkable for its opposition to arbitrary power, the poets levelled all their artillery against the metropolis, in order to bring the citizens into contempt. An alderman was never introduced on the theatre, but under the complicated character of a sneaking, canting hypocrite, a miser and a cuckold; while the court wits, with impunity, libelled the most valuable part of the nation. Other writers, of a different stamp, with great learning and gravity, endeavoured to prove to the English people, that slavery was jure dirino. Thus the stage and the press, under the direction of a licenser, became battering engines against religion, virtue, and liberty. Those who had courage enough to write in their defence were stigmatized as schismatics, and punished as disturbers of the government.

But when the embargo on wit was taken off, Sir Richard Steele and Mr. Addison soon rescued the stage from the load of impurity it labored under; with an inimitable address, they strongly recommended to our imitation the most amiable, rational, manly characters; and this with so much success, that I cannot suppose there is any reader to-day conversant in the writings of those gentlemen, that can taste with any tolerable relish the comedies of the once admired Shadwell. Vice was obliged to retire and give place to virtue. This will always be the consequence when truth has fair play. Falsehood only dreads the attack, and cries out for auxiliaries. Truth never fears the encounter; she scorns the aid of the secular arm, and triumphs by her natural strength.

But to resume the description of the reign of Charles the Second The doctrine of servitude was chiefly managed by Sir Roger L'Estrange. He had great advantages in the argument, being licenser for the press, and might have carried all before him, without contradiction, if writings on the other side of the question had not been printed by stealth. The authors, whenever found, were prosecuted as seditious libellers. On all these occasions, the king's counsel, particularly Sawyer and Finch, appeared most abjectly obsequious to accomplish the ends of the court.

During this blessed management, the King had entered into a secret league with France, to render himself absolute, and enslave his subjects. This fact was discovered to the world by Dr. Jonathan Swift, to whom Sir William Temple had entrusted the publication of his works.

Sidney, the sworn foe of tyranny, was a gentleman of noble family, of sublime understanding, and exalted courage. The ministry were resolved to remove so great an obstacle out of the way of their designs. He was prosecuted for high treason. The overt act charged in the indictment, was a libel found in his private study. Mr. Finch, the king's own solicitor-general, urged, with great vehemency, to this effect; “ That the imagining the death of the king is treason, even while that imagination remains concealed in the mind; though the law cannot punish such secret treasonable thoughts, till it arrives at the knowledge of them by some overt act. · That the matter of the libel composed by Sidney was an imagining how to compass the death of King Charles the Second; and the writing of it was an overt act of the treason; for, that to write was to act; scribere est agere.” It seems that the king's counsel in this reign had not received the same direction as Queen Elizabeth had given hers; she told them they were to look upon themselves as retained, not so much pro dominâ regina, as pro dominâ veritate, - for the power of the Queen, as for the power of truth.

Mr. Sidney made a strong and legal defence. He insisted that all the words in the book contained no more than general speculations on the principles of government, free for any man to write down ; especially since the same are written in the Parliament rolls and the statute laws.

He argued on the injustice of applying by inuendoes, general assertions concerning principles of government, as overt acts, to prove the writer was compassing the death of the king; for then no man could write of things done even by our ancestors, in defence of the constitution and freedom of England, without exposing himself to capital danger.

He denied that scribere est agere, but allowed that writing and publishing is to act, scribere et publicare est agere ; and therefore he urged, that, as his book had never been published nor imparted to any person, it could not be an overt act, within the statutes of treasons, even admitting that it contained treasonable positions; that, on the contrary, it was a covert fact, locked up in his private study, as much concealed from the knowledge of any man, as if it were locked up in the author's mind. This was the substance of Mr. Sidney's defence. But neither law, nor reason, nor eloquence, nor innocence, ever availed where Jeffreys sat as judge. Without troubling himself with any part of the defence, he declared in a rage, that Sidney's known principles were a sufficient proof of his intention to compass the death of the king.

A packed jury, therefore, found him guilty of high treason. Great applications were made for his pardon. He was executed as a traitor.

This case is a pregnant instance of the danger that attends a law for punishing words, and of the little security the most valuable men have for their lives, in that society where a judge, by remote inferences and distant inuendoes, may construe the most innocent expressions into capital crimes. Sidney, the British Brutus, the warm, the steady friend of liberty, who, from a diffusive love to mankind, left them that invaluable legacy, his immortal “ Discourses on Government,” was for these very Discourses murdered by the hands of lawless power.

After the revolution of 1688, when law and justice were again restored, the attainder of this great man was reversed by Parliament.

Being in Holland,” says bishop Burnet, “the Princess of Orange, afterwards Queen Mary, asked me what had sharpened the king her father so much against Mr. Jurieu? I told her he had writ with great indecency of Mary, Queen of Scots, which cast reflections on them that were descended from her. The Princess said, Jurieu was to support the cause he defended, and to expose those that persecuted it, in the best way he could ; and if what he said of Mary, Queen of Scots, was true, he was not to be blamed who made that use of it; and she added, that, if princes would do ill things, they must expect that the world will take revenge on their memories, since they cannot reach their persons. That was but a small suffering, far short of what others suffered at their hands.”

In the former part of this paper it was endeavoured to prove by historical facts, the fatal dangers that necessarily attend a restraint of freedom of speech and the liberty of the press; upon which the following reflection naturally occurs, viz. that whoever attempts to suppress either of these our natural rights, ought to be regarded as an enemy to liberty and the constitution, An inconveniency is always to be suffered, when it cannot be removed without introducing a worse.

I proceed, in the next place, to inquire into the nature of the English laws in relation to libelling. To acquire a just idea of them, the knowledge of history is necessary, and the genius and disposition of the prince is to be considered, in whose time they are introduced and put in practice.

To infuse into the minds of the people an ill opinion of a just administration is a crime, that deserves no indulgence; but to expose the evil designs or weak management of a magistrate is the duty of every member of society. Yet King James the First thought it an unpardonable presumption in the subject to pry into the arcana imperii, the secrets of kings. He imagined, that the people ought to believe the authority of the government infallible, and that their submission should be implicit. It may therefore be reasonably presumed, that the judgment of the Star-chamber concerning libels was influenced by this monarch’s notions of government. No law could be better framed to prevent people from publishing their thoughts on the administration, than that which makes no distinction, whether a libel be true or false. It is not pretended that any such decision is to be found in our books, before this reign. That is not at all to be wondered at; King James was the first of the British monarchs, that laid claim to a divine right.

It was a refined piece of policy in Augustus Cæsar, when he proposed a law to the senate, whereby invectives against private men were to be punished as treason. The pill was finely gilded and easily swallowed; but the Romans soon found that the preservation of their characters was only a pretext; to preserve inviolable the sacred name of Cæsar was the real design of the law. They quickly discovered the intended consequence; if it be treason to libel a private person, it cannot be less than blasphemy to speak ill of the emperor.

Perhaps it may not appear a too refined conjecture, that the Star-chamber acted on the same views with Augustus, when they gave that decision which made it criminal to publish truth of a private person as well as a magistrate. I am the more inclined to this conjecture from a passage in Lord Chief Justice Richardson's speech, which I find in the trial in the Star-chamber against Mr. Prynne, who was prosecuted there for a libel. If subjects have an ill prince,” says the judge, “ marry, what is the remedy? They must pray to God to forgive him. Mr. Prynne saith there were three worthy Romans, that conspired to murder Nero. This is most horrible.

Tremendous wickedness indeed, my Lord Chief Justice! Where slept the thunder, when these three detestable Romans, unawed by the sacred majesty of the diadem, with hands sacrilegious and accursed, took away the precious life of that imperial wolf, that true epitome of the Lord's anointed, who had murdered his own mother, who had put to death Seneca and Burrhus, his two best friends and benefactors; who was drenched in the blood of mankind, and wished and endeavoured to extirpate the human race? I think my Lord Chief Justice has clearly explained the true intent and meaning of the Star-chamber doctrine; it centres in the most abjectly passive obedience.

The punishment for writing truth, is pillory, loss of ears, branding the face with hot irons, fine, and imprisonment, at the discretion of the court. Nay, the punishment is to be heightened in proportion to the truth of the facts contained in the libel. But, if this monstrous doctrine could have been swallowed down by that worthy jury, who were on the trial of the seven bishops, prosecuted for a libel in the reign of James the Second, the liberties of Britain, in all human probability, had been lost, and slavery established in the three kingdoms.

This was a cause of the greatest expectation and importance that ever came before the judges in Westminster-hall.

The bishops had petitioned the king, that he would be graciously pleased not to insist upon their reading in the church his Majesty's declaration for liberty of conscience, because it was founded on a dispensing power, declared illegal in Parliament; and they said, that they could not, in prudence, honor, or conscience, so far make themselves parties to it. In the information exhibited by the attorney-general, the bishops were charged with writing and publishing a false, malicious and seditious libel (under pretence of a petition), in diminution of the king's prerogative, and contempt of his government.

Sawyer and Finch were among the bishops' counsel; the former had been attorney, the latter solicitor-general. In these stations they had served the court only too well. They were turned out because they refused to support the dispensing power. Powis and Williams, who stood in their places, had great advantages over them, by reflecting on the precedents and proceedings, while those were of the king's counsel. “ What was good law for Sidney and others, ought to be law for the bishops; God forbid, that in a court of justice any such distinction should be made.”

Williams took very indecent liberties with the prelates, who were obliged to appear in court; he reproached them with acting repugnant to their doctrine of passive obedience; he reminded them of their preaching against himself, and stirring up their clergy to libel him in their sermons. For Williams had been for many years a bold pleader in all causes against the court. He had been Speaker in two successive parliaments, and a zealous promoter of the bill of exclusion. Jeffreys had fined him ten thousand pounds for having licensed, in the preceding reign, by virtue of an order of the House of Commons, the printing of Dangerfield's Narrative, which charged the Duke of York with conspiracies of a black complexion. This gentleman had no principles, was guided by his own interests, and so wheeled about to the court. The king's counsel having produced their evidences as to the publication of the petition, the question then to be debated was, whether it contained libellous matter or not.

It was argued in substance for the bishops, that the matter could not be libellous, because it was true; Sir Robert Sawyer makes use of the words false and libellous, as synonymous terms, through the whole course of his argument; and so does Mr. Finch; accordingly they proceeded to show by the votes and journals of the Parliament, which were brought from the Tower to the court, that the kings of England, in no age, had any power to dispense with or set aside the laws of the land; and, consequently, the bishops' petition, which denied that his Majesty had any dispensing power, could not be false, nor libellous, nor in contempt or diminution of the king's prerogative, as no such power was ever annexed to it. This was the foundation laid down through the whole course of the debate, and which guided and governed the verdict.

It was strongly urged in behalf of the king, that the only point to be looked into was, whether the libel be reflecting or scandalous, and not whether it be true or false ; that the bishops had injured and affronted the king by presuming to prescribe to him their opinions in matters of government; that, under pretence of delivering a petition, they come and tell his Majesty he has commanded an illegal thing; that, by such a proceeding, they threw dirt in the king's face, and so were libellers with a witness.

Previous to the opinions of the judges, it will be necessary to give the reader a short sketch of their characters. Wright was before on the bench, and made chief justice, as a proper tool to support the dispensing power. Rapin, mentioning this trial, calls Holloway a creature of the court; but that excellent historian was mistaken in this particular. Powell was a judge of obstinate integrity; his obstinacy gained him immortal honor. Allibone was a professed Papist, and had not taken the tests; consequently he was no judge, and his opinion of no authority. Wright, in his charge, called the petition a libel, and declared that any thing which disturbs the government is within the case de libellis famosis, (the Star-chamber doctrine.) Holloway told the jury, that the end and intention of every action is to be considered ; and that, as the bishops had no ill intention in delivering their petition, it could not be deemed malicious or libellous. Powell declared, that falsehood and malice were two essential qualities of a libel, which the prosecutor is obliged to prove. Allibone replied upon Powell, that we are not to measure things from any truth they have in themselves, but from the aspect they have on the government; for that every tittle of a libel may be true, and yet be a libel still.

The compass of this paper would not admit me to quote the opinion of the judges at length; but I have endeavoured, with the strictest regard to truth, to give the substance and effect of them as I read them.

It has been generally said, that the judges on this trial were equally divided in their opinions; but we shall find a majority on the bench in favor of the bishops, when we consider, that the cause, as to Allibone, was beyond the jurisdiction of the court (coram non judice.) Here, then, is a late authority, which sets aside, destroys, and annuls the doctrine of the Star-chamber, reported by Sir Edward Coke, in his case de libellis famosis.

Agreeable to this late impartial decision is the civil law concerning libels. It is there said, that the calumny is criminal only when it is false, Calumniari est falsa crimina dicere ; and not criminal when it is true, (vera crimina dicere ;) and therefore a writing, that insinuates a falsehood, and does not directly assert it, cannot come under the denomination of a libel, (Non libellus famosus quoad accusationem, quia non constat directis assertionibus, in quibus venit verum aut falsum, quod omnino requirit libellus famosus.) In those cases where the design to injure does not evidently appear from the nature of the words, the intention is not to be presumed; it is incumbent on the plaintiff to prove the malice; (Animus injuriandi non præsumitur, et incumbit injuriato eum probare.) These resolutions of the Roman lawyers bear so great a conformity with the sentiments of Powell and Hollo way, that it seems they had them in view, when they gave their opinions. Sir Robert Sawyer makes several glances at them in his argument; but, throwing that supposition out of the question, natural equity, on which the civil law is founded, (the principle of passive obedience always excepted,) would have directed any impartial man of common understanding to the same decision.

In civil actions, an advocate should never appear but when he is persuaded the merits of the cause lie on the side of his client. In criminal actions, it often happens that the defendant in strict justice deserves punishment; yet a counsel may oppose it when a magistrate cannot come at the offender, without making a breach in the barriers of liberty, and opening a flood-gate to arbitrary power. But, when the defendant is innocent, and unjustly prosecuted, his counsel may, nay ought to take all advantages, and use every stratagem, that skill, art, and learning can furnish him with. This last was the case of Zenger, at New York, as appears by the printed trial and the verdict of the jury. It was a popular cause. The liberty of the press in that province depended on it. On such occasions the dry rules of strict pleading are never observed. The counsel for the defendant sometimes argues from the known principles of law; then raises doubts and difficulties, to confound his antagonist ; now applies himself to the affections; and chiefly endeavours to raise the passions. Zenger's defence is not to be considered in all those different lights; yet a gentleman of Barbadoes assures us, that it was published as a solemn argument in the Laws, and therefore writes a very elaborate confutation of it.

I propose to consider some of his objections, as far as they interfere with the freedom of speech and the liberty of the press, contended for in this paper.

This author begun his remarks by giving us a specimen of Mr. Hamilton's method of reasoning. It seems the attorney-general on the first objected, that a negative could not be proved; to which the counsel for Zenger replied, that there are many exceptions to that general rule; and instanced when a man is charged with killing another; if he be innocent, he may prove the man, said to be killed, to be still alive. The remarker will not allow this to be a good proof of the negative, for, says he, “ This is no more than one instance of one affirmative being destroyed by another, that infers a negative of the first.” It cost me some time to find out the meaning of this superlative nonsense; and I think I have at last discovered it. What he understands by the first affirmative, is the instance of the man's being charged with killing another; the second affirmative is the man's being alive; which certainly infers, that the man was not killed; which is undoubtedly a negative of the first. But the remarker of Barbadoes blunders strangely. Mr. Hamilton's words are clear. He says, the party accused is on the negative, viz. that he did not kill ; which he may prove by an affirmative, viz. that the man said to be killed is still alive.

Again. “At which rate,” continues our Barbadoes author, “most negatives may be proved.” There indeed the gentleman happened to stumble right; for every negative capable of proof can only be proved after the same manner, namely, by an affirmative. “But then,” he adds, “a man will be put upon proving he did not kill, because such proof may be had sometimes, and so the old rule will be discarded.” This is clearly a non sequitur (not an argument); for, though a man may prove a negative, if he finds it for his advantage, it does by no means follow that he shall be obliged to do it, and so that old rule will be preserved.

After such notable instances of a blundering, unlogical head, we are not to be surprised at the many absurdities and contradictions of this author, which occur in the sequel of his no-argument.

But I shall only cite those passages where there is a probability of guessing at his meaning; for he has so preposterously jumbled together his little stock of ideas, that, even after the greatest efforts, I could find but very little sense or coherence in them. I should not, however, have discontinued my labor, had I not been apprehensive of the fate of poor Don Quixote, who ran distracted by endeavouring to unbowel the sense of the following passage; “The reason of your unreasonableness, which against my reason is wrought, doth so weaken my reason, as with all reason I do justly com- . plain.” There are several profound passages in the remarks, not a whit inferior to this. This dissertation on the negative and affirmative, I once thought to be an exact counterpart of it.

Our author labors to prove that a libel, whether true or false, is punishable. The first authority for this purpose is the case of John de Northampton, adjudged in the reign of Edward the Third. Northampton had wrote a libellous letter to one of the king's council, purporting that the judges would do no great things at the commandment of the king, &c.; the said John was called, and the court pronounced judgment against him on these grounds, that the letter contained no truth in it, and might incense the king against his judges. Mr. Hamilton says, that by this judgment it appears the libellous words were utterly false, and that the falsehood was the crime, and is the ground of the judgment. The remarker rejects this explanation, and gives us an ingenious comment of his own. First, he says, there is neither truth nor falsehood in the words, at the time they were wrote. Secondly, that they were the same as if John had said the roof of Westminster-hall would fall on the judges. Thirdly, that the words taken by themselves have no ill meaning. Fourthly, that the judges ought to do their duty, without any respect to the king's commandment (they are sworn so to do). Fifthly, he asks, Where then was the offence? He an swers, sixthly, The record shows it. Seventhly, he says that the author of the letter was an attorney of the court, and, by the contents thereof, (meaning the contents of the letter, not the contents of the court,) he presumes to undertake for the behaviour of the judges. Eighthly, that the letter was addressed to a person of the king's council. Ninthly, that he might possibly communicate it to the king. Tenthly, that it might naturally incense the king against the court. Eleventhly, that great things were done in those days by the king's commandment, for the judges held their post at will and pleasure. Twelfthly, that it was therefore proper for the judges to assert, that the letter contained no truth, in order to acquit themselves to the king. Thirteenthly, that the judges asserted a falsehood, only to acquit themselves to his Majesty, because what they asserted was no ground of their judgment. Fourteenthly, and lastly, the commentator avers (with much modesty) that all this senseless stuff is a plain and natural construction of the case; but he would not have us take it wholly on his own word, and undertakes to show that the case was so understood by Noy, in whose mouth our author puts just such becoming nonsense as he entertained us with from himself.

It requires no great penetration to make this discussion in question appear reasonable and intelligible. But it ought first to be observed that Edward the Third was one of the best and wisest, as well as the bravest of our kings, and that the law had never a freer course than under his reign. Where the letter mentions, that the judges would do no great things (that is, illegal things) by the king's commandment, it was plainly insinuated, that the judges suspected that the king might command them to do illegal things. Now, by the means of that letter, the king being led to imagine that the judges harboured a suspicion so unworthy of him, might be justly incensed against them. Therefore the record truly says, that the letter was utterly false, and that there was couched under it, an insinuation (certainly malicious), that might raise an indignation in this king against the court, &c., since it evidently appears, that not only the falsehood, but also the malice, was the ground of the judgment.

I agree with the remarker that Noy, citing this case, says, that the letter contained no ill, yet the writer was punished; but these words are absolutely as they stand in the remarks, detached from the context. Noy adduces Northampton's case, to prove that a man is punishable for contemplating without a cause, though the words of the complaint (simply considered) should contain no ill in them; it is not natural to inquire whether the application be just; it is only an expression of a counsel at the bar. The case was adjourned, and we hear no more of it. Yet these words of Noy, the remarker would pass on the reader as a good authority. “This book, therefore,” quoth he, referring to Godbolt's Reports, “follows the record of Northampton's case, and says, that because it might incense the king against the judges he was punished; which is almost a translation of Prætextu cujus,” &c. I could readily pardon our author's gibberish, and want of apprehension, but cannot so easily digest his insincerity.

The remarker in the next place proceeds to the trial of the seven bishops; I shall quote his own words, though I know they are so senseless and insipid, that I run the risk of trespassing on the reader's patience; however, here they be; “Mr. Justice Powell also does say, that, to make it a libel, it must be false, it must be malicious, and it must tend to sedition. Upon which words of this learned and worthy judge, I would not presume to offer any comment, except that which other words of his own afford, that plainly show in what sense he then spoke. His subsequent words are these, • The bishops tell his Majesty, it is not out of averseness,' &c. So that the judge put the whole upon that single point, whether it be true that the king had a dispensing power or not; which is a question of law, and not of fact; and accordingly the judge appeals to his own reading in the law, not to witnesses or other testimonies, for a decision of it.”

Now, the bishops had asserted in the libel they were charged with, that the dispensing power, claimed by the king in his declaration, was illegal. The remarker, by granting that the prelates might prove part of their assertion, viz. that the dispensing power was illegal, which is a question of law, necessarily allows them to prove the other part of their assertion, viz. that his Majesty had claimed such a power, which is a question of fact; for the former could not be decided without proving or admitting the latter, and so in all other cases, where a man publishes of a magistrate, that he has acted or commanded an illegal thing, if the defendant shall be admitted to prove the mode or illegality of the thing, it is evidently implied that he may prove the thing itself; so that, on the gentleman's own premises, it is a clear consequence, that a man prosecuted for a libel, shall be admitted to give the truth in evidence. The remarker has a method of reasoning peculiar to himself; he frequently advances arguments, which directly prove the very point he is laboring to confute.

But, in truth, Judge Powell's words would not have given the least color to such a ridiculous distinction, if they had been fairly quoted. He affirms, with the strongest emphasis, that, to make it a libel, it must be false, it must be malicious, and it must tend to sedition. Let it be observed that these three qualities of a libel against the government are in the conjunctive. His subsequent words are these, “As to the falsehood, I see nothing that is offered by the king's counsel ; nor any thing as to the malice.” Here the judge puts the proof both of the falsehood and the malice on the prosecutor; and, though the falsehood in this case was a question of law, it will not be denied, but that the malice was a question of fact. Now shall we attribute this omission to the inadvertency of the remarker? No, that cannot be supposed; for the sentence immediately followed. But they were nailing, decisive words, which, if they were fairly quoted, had put an end to the dispute, and left the remarker without the least room for evasion; and therefore he very honestly dropped them.

Our author says it is necessary to consult Bracton, in order to fix our idea of a libel. Now Bracton, throughout his five books De Legibus et Consuetudinibus Anglia, only once happened to mention libels, very perfunctorily. He says no more than that a man may receive an injury by a lampoon and things of that nature. Fit injuria cum de eo factum carmen famosum et hujusmodi. Pray how is any person's idea of a libel the better fixed by this description of it? Our author very sagaciously observes, on these words of Bracton, that the falsity of a libel is neither expressed nor implied by them. That it is not expressed, is selfevident; but that it is not implied, we have only the remarker's ipse dixit for it.

But it was really idle and impertinent to draw this ancient lawyer into the dispute, as nothing could be learned from him, only that a libel is an injury, which every body will readily grant. I have good ground to suspect, that our author did not consult Bracton on this occasion; the passage, cited in the remarks, is literally transcribed from Coke's ninth report, folio sixty ; by which an unlearned reader might be easily led to believe, that our author was well skilled in ancient learning; ridiculous affectation and pedantry this.

To follow the remarker, through all his incoherencies and absurdities, would be irksome; and indeed nothing is more vexatious than to be obliged to refute lies and nonsense. Besides, a writer, who is convicted of imposing wilful falsehoods on the reader, ought to be regarded with abhorrence and contempt. It is for this reason I have treated him with an acrimony of style, which nothing but his malice and want of sincerity, and not his ignorance, his dulness, or vanity, could have justified; however, as to the precedents and proceedings against libelling, before the case of the seven bishops, he ought to be left undisturbed in the full enjoyment of the honor he has justly acquired by transcribing them from commonplace books and publishing them in gazettes. Pretty speculations these to be inserted in newspapers, especially when they come clothed and loaded under the jargon and tackle of the law.

I am sure, that by this time the reader must be heartily tired with the little I have offered on the subject, though I have endeavoured to speak so as to be understood; yet it in some measure appeared necessary to expose the folly and ignorance of this author, inasmuch as he seemed to be cherished by some pernicious insects of the profession, who, neglecting the noblest parts, feed on the rotten branches of the law.

Besides, the liberty of the press would be wholly abolished, if the remarker could have propagated the doctrine of punishing truth. Yet he declares he would not be thought to derogate from that noble privilege of a free people. How does he reconcile these contradictions? why truly thus; he says, that the liberty of the press is a bulwark and two-edged weapon, capable of cutting two ways, and is only to be trusted in the hands of men of wit and address, and not with such fools as rail without art. I pass over the blunder of his calling a bulwark a two-edged weapon, for a lawyer is not supposed to be acquainted with military terms; but is it not highly ridiculous, that the gentleman will not allow a squib to be fired from the bulwark of liberty, yet freely gives permission to erect on it a battery of cannon ?

Upon the whole, to suppress inquiries into the administration is good policy in an arbitrary government; but a free constitution and freedom of speech have such a reciprocal dependence on each other, that they cannot subsist without consisting together.

* The evils of one extreme in the political condition of society in regard to libels and treasons, as in other things, renders men blind to those of the opposite. The history of the period anterior to this essay abounds in examples of the evils and abuses incident to the laws on these subjects, and gave rise to the doctrine maintained in the text, that nothing short of an absolute, unbridled licentiousness of the press was consistent with political liberty. Subsequent experience has shown, that the tyranny of a licentious press and of public opinion is to be dreaded, on the one hand, as well as that of monarchs and privileged classes on the other. The modern legislation on the subject of libel stops far short of the doctrine here inculcated. According to that legislation, the truth, when published wantonly and from malicious motives, for bad purposes, may be a libel; and, in order to render the truth of a publication a sufficient justification, it must appear to have been published from justifiable motives and for justifiable purposes. - W. Phillips.

OBSERVATIONS CONCERNING THE INCREASE OF MANKIND AND THE PEOPLING OF COUNTRIES.

WRITTEN IN PENNSYLVANIA, 1751.

1. Tables of the proportion of marriages to births, of deaths to births, of marriages to the number of inhabitants, &c., formed on observations made upon the bills of mortality, christenings, &c., of populous cities, will not suit countries; nor will tables formed on observations, made on full-settled old countries, as Europe, suit new countries, as America.* 2. For people increase in proportion to the number of marriages, and that is greater in proportion to the ease and convenience of supporting a family. When families can be easily supported, more persons marry, and earlier in life.

3. In cities, where all trades, occupations, and offices are full, many delay marrying till they can see how to bear the charges of a family; which charges are greater in cities, as luxury is more common ; many live single during life, and continue servants to families, journeymen to trades, &c.; hence cities do not, by natural generation, supply themselves with inhabitants; the deaths are more than the births.

4. In countries full settled, the case must be nearly the same; all lands being occupied and improved to the height, those who cannot get land must labor for others that have it; when laborers are plenty their wages will be low; by low wages a family is supported with difficulty; this difficulty deters many from marriage, who therefore long continue servants and single. Only as the cities take supplies of people from the country, and thereby make a little more room in the country, marriage is a little more encouraged there, and the births exceed the deaths.

5. Europe is generally full settled with husbandmen, manufacturers, &c., and therefore cannot now much increase in people. America is chiefly occupied by Indians, who subsist mostly by hunting. But as the hunter, of all men, requires the greatest quantity of land from whence to draw his subsistence, (the husbandman subsisting on much less, the gardener on still less, and the manufacturer requiring least of all,) the Europeans found America as fully settled as it well could be by hunters ; yet these, having large tracts, were easily prevailed on to part with portions of territory to the new comers, who did not much interfere with the natives in hunting, and furnished them with many things they wanted.

* Nor will tables, which are accurately calculated at one period, necessarily continue to be correct in the same country at another period. The chances of life have been ascertained to be greater in Europe during the last half century, than they were formerly. - W. Phillips.

6. Land being thus plenty in America, and so cheap as that a laboring man, that understands husbandry, can in a short time save money enough to purchase a piece of new land sufficient for a plantation, whereon he may subsist a family, such are not afraid to marry; for, if they even look far enough forward to consider how their children, when grown up, are to be provided for, they see that more land is to be had at rates equally easy, all circumstances considered.

7. Hence marriages in America are more general, and more generally early than in Europe. And if it is reckoned there, that there is but one marriage per annum among one hundred persons, perhaps we may here reckon two; and if in Europe they have but four births to a marriage (many of their marriages being late), we may here reckon eight, of which, if one half grow up, and our marriages are made, reckoning one with another, at twenty years of age, our people must at least be doubled every twenty years.

8. But notwithstanding this increase, so vast is the territory of North America, that it will require many ages to settle it fully; and, till it is fully settled, labor will never be cheap here, where no man continues long a laborer for others, but gets a plantation of his own, no man continues long a journeyman to a trade, but goes among those new settlers, and sets up for himself, &c.

Hence labor is no cheaper now in Pennsylvania, than it was thirty years ago, though so many thousand laboring people have been imported.

9. The danger therefore of these colonies interfering with their mother country in trades that depend on labor, manufactures, &c., is too remote to require the attention of Great Britain.

10. But in proportion to the increase of the colonies, a vast demand is growing for British manufactures, a glorious market wholly in the power of Britain, in which foreigners cannot interfere, which will increase in a short time even beyond her power of supplying, though her whole trade should be to her colonies; therefore Britain should not too much restrain manufactures in her colonies. A wise and good mother will not do it. To distress is to weaken, and weakening the children weakens the whole family.

11. Besides, if the manufactures of Britain (by reason of the American demands) should rise too high in price, foreigners who can sell cheaper will drive her merchants out of foreign markets; foreign manufactures will thereby be encouraged and increased, and consequently foreign nations, perhaps her rivals in power, grow more populous and more powerful ; while her own colonies, kept too low, are unable to assist her, or add to her strength.

12. It is an ill-grounded opinion that, by the labor of slaves, America may possibly vie in cheapness of manufactures with Britain. The labor of slaves can never be so cheap here as the labor of workingmen is in Britain. Any one may compute it. Interest of money is in the colonies from six to ten per cent. Slaves, one with another, cost thirty pounds sterling per head. Reckon then the interest of the first purchase of a slave, the insurance or risk on his life, his clothing and diet, expenses in his sickness and loss of time, loss by his neglect of business (neglect is natural to the man who is not to be benefited by his own care or diligence), expense of a driver to keep him at work, and his pilfering from time to time, almost every slave being by nature a thief, and compare the whole amount with the wages of a manufacturer of iron or wool in England, you will see that labor is much cheaper there than it ever can be by negroes here. Why then will Americans purchase slaves ? Because slaves may be kept as long as a man pleases, or has occasion for their labor; while hired men are continually leaving their masters (often in the midst of his business) and setting up for themselves. -Sec. 8.

13. As the increase of people depends on the encouragement of marriages, the following things must diminish a nation, viz. 1. The being conquered; for the conquerors will engross as many offices, and exact as much tribute or profit on the labor of the conquered, as will maintain them in their new establishment; and this, diminishing the subsistence of the natives, discourages their marriages, and so gradually diminishes them, while the foreigners increase. 2. Loss of territory. Thus, the Britons being driven into Wales, and crowded together in a barren country insufficient to support such great numbers, diminished till the people bore a proportion to the produce, while the Saxons increased on their abandoned lands, till the island became full of English. And, were the English now driven into Wales by some foreign nation, there would in a few years, be no more Englishmen in Britain, than there are now people in Wales. 3. Loss of trade. Manufactures exported draw subsistence from foreign countries for numbers; who are thereby enabled to marry and raise families. If the nation be deprived of any branch of trade, and no new employment is found for the people occupied in that branch, it will also be soon deprived of so many people. 4. Loss of food. Suppose a nation has a fishery, which not only employs great numbers, but makes the food and subsistence of the people cheaper. If another nation becomes master of the seas, and prevents the fishery, the people will diminish in proportion as the loss of employ and dearness of provision make it more difficult to subsist a family. 5. Bad government and insecure property. People not only leave such a country, and, settling abroad, incorporate with other nations, lose their native language, and become foreigners, but, the industry of those that remain being discouraged, the quantity of subsistence in the country is lessened, and the support of a family becomes more difficult. So heavy taxes tend to diminish a people. 6. The introduction of slaves. The negroes brought into the English sugar islands have greatly diminished the whites there; the poor are, by this means, deprived of employment, while a few families acquire vast estates, which they spend on foreign luxuries, and educating their children in the habit of those luxuries; the same income is needed for the support of one that might have maintained one hundred. The whites who have slaves, not laboring, are enfeebled, and therefore not so generally prolific; the slaves being worked too hard, and ill fed, their constitutions are broken, and the deaths among them are more than the births ; so that a continual supply is needed from Africa. The northern colonies, having few slaves, increase in whites. Slaves also pejorate the families that use them ; the white children become proud, disgusted with labor, and, being educated in idleness, are rendered unfit to get a living by industry.

14. Hence the prince that acquires new territory, if he finds it vacant, or removes the natives to give his own people room; the legislator that makes effectual laws for promoting of trade, increasing employment, improving of land by more or better tillage, providing more food by fisheries, securing property, &c.; and the man that invents new trades, arts, or manufactures, or new improvements in husbandry, may be properly called fathers of their nation, as they are the cause of the generation of multitudes, by the encouragement they afford to marriage.

15. As to privileges granted to the married, (such as the jus trium liberorum among the Romans,) they may hasten the filling of a country that has been thinned by war or pestilence, or that has otherwise vacant territory ; but cannot increase a people beyond the means provided for their subsistence.

16. Foreign luxuries and needless manufactures, imported and used in a nation, do, by the same reasoning, increase the people of the nation that furnishes them, and diminish the people of the nation that uses them. Laws, therefore, that prevent such importations, and on the contrary promote the exportation of manufactures to be consumed in foreign countries, may be called (with respect to the people that make them) generative laws, as, by increasing subsistence they encourage marriage. Such laws likewise strengthen a country doubly, by increasing its own people and diminishing its neighbours.

17. Some European nations prudently refuse to consume the manufactures of East India; they should likewise forbid them to their colonies; for the gain to the merchant is not to be compared with the loss, by this means, of people to the nation.

18. Home luxury in the great increases the nation's manufacturers employed by it, who are many, and only tends to diminish the families that indulge in it, who are few. The greater the common fashionable expense of any rank of people, the more cautious they are of marriage. Therefore luxury should never be suffered to become common.

19. The great increase of offspring in particular families is not always owing to greater fecundity of nature, but sometimes to examples of industry in the heads, and industrious education ; by which the children are enabled to provide better for themselves, and their marrying early is encouraged from the prospect of good subsistence.

20. If there be a sect, therefore, in our nation, that regard frugality and industry as religious duties, and educate their children therein, more than others commonly do; such sect must consequently increase more by natural generation, than any other sect in Britain.

21. The importation of foreigners into a country, that has as many inhabitants as the present employments and provisions for subsistence will bear, will be in the end no increase of people, unless the new comers have more industry and frugality than the natives, and then they will provide more subsistence, and increase in the country; but they will gradually eat the natives out. Nor is it necessary to bring in foreigners to fill up any occasional vacancy in a country; for such vacancy (if the laws are good, sec. 14, 16,) will soon be filled by natural generation. Who can now find the vacancy made in Sweden, France, or other warlike nations, by the plague of heroism, forty years ago; in France, by the expulsion of the Protestants; in England, by the settlement of her colonies; or in Guinea, by one hundred years' exportation of slaves, that has blackened half America ? The thinness of inhabitants in Spain is owing to national pride and idleness, and other causes, rather than to the expulsion of the Moors, or to the making of new settlements.

22. There is, in short, no bound to the prolific nature of plants or animals, but what is made by their crowding and interfering with each other's means of subsistence. Was the face of the earth vacant of other plants, it might be gradually sowed and overspread with one kind only, as, for instance, with fennel ; and, were it empty of other inhabitants, it might in a few ages be replenished from one nation only, as, for instance, with Englishmen. Thus, there are supposed to be now upwards of one million English souls in North America, (though it is thought scarce eighty thousand has been brought over sea,) and yet perhaps there is not one the fewer in Britain, but rather many more, on account of the employment the colonies afford to manufacturers at home. This million doubling, suppose but once in twenty-five years, * will, in another century, be more than the people of England, and the greatest number of Englishmen will be on this side the water.

What an accession of power to the British empire by sea as well as land! What increase of trade and navigation ! What numbers of ships and seamen! We have been here but little more than one hundred years, and yet the force of our privateers in the late war, united, was greater, both in men and guns, than that of the whole British navy in Queen Elizabeth's time. How important an affair then to Britain is the present treaty for settling the bounds between her colonies and the This was a singularly just estimate of the period for doubling the population, and has proved to be substantially correct, since periodical enumerations have been made, from 1790 down to the present time (1835); the rate of increase, shown by these censuses, being the same as it was estimated in 1751, that it would be. The prediction in the text, as to the probable number of inhabitants, is therefore likely to be fully verified. W. PHILLIPS.

French, and how careful should she be to secure room enough, since on the room depends so much the increase of her people.

23. In fine, a nation well regulated is like a polypus; take away a limb, its place is soon supplied ; cut it in two, and each deficient part shall speedily grow out of the part remaining. Thus, if you have room and subsistence enough, as you may, by dividing, make ten polypuses out of one, you may of one make ten nations, equally populous and powerful; or rather increase a nation ten fold in numbers and strength.

And since detachments of English from Britain, sent to America, will have their places at home so soon supplied and increase so largely here; why should the Palatine boors be suffered to swarm into our settlements, and, by herding together, establish their language and manners, to the exclusion of ours? Why should Pennsylvania, founded by the English, become a colony of aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them, and will never adopt our language or customs any more than they can acquire our complexion?

24. Which leads me to add one remark, that the number of purely white people in the world is proportionably very small. All Africa is black or tawny ; Asia chiefly tawny; America (exclusive of the new comers) wholly so. And in Europe, the Spaniards, Italians, French, Russians, and Swedes, are generally of what we call a swarthy complexion ; as are the Germans also, the Saxons only excepted, who, with the English, make the principal body of white people on the face of the earth. I could wish their numbers were increased. And while we are, as I may call it, scouring our planet, by clearing America of woods, and so making this side of our globe reflect a brighter light to the eyes of inhabitants in Mars or Venus, why should we, in the sight of superior beings, darken its people ? Why increase the sons of Africa, by planting them in America, where we have so fair an opportunity, by excluding all blacks and tawnys, of increasing the lovely white and red? But perhaps I am partial to the complexion of my country, for such kind of partiality is natural to mankind.