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Cato's Letter No. 101

Second Discourse upon Libels.

John Trenchard (Saturday, November 3, 1722)

SIR, I have been told that in some former reigns, when the attorney-general took it in his head to make innocent or doubtful expressions criminal by the help of forced innuendos, the method of proceeding was as follows: If the counsel for the prisoner insisted, that the words carried no seditious meaning, but might and ought to be understood in a reasonable sense; he was answered, that his exception would be saved to him upon arrest of judgment; in the mean time the information was tried, and the malign intention of the words was aggravated and left to a willing jury; and then, upon a motion in behalf of the prisoner, to arrest judgment, because the words were not criminal in law, he was told, that the jury were judges of the intention; and having found it an ill one, it was too late to take the exception. Whether this was ever the truth, I have not lived long enough to affirm from my own knowledge; or, whether this method of proceeding be law now, I have not skill enough in that science to determine: But I think I may justly say, that if it be law, it is worth the consideration of our legislature whether it ought to continue so.

It is certain, that there is no middle in nature, between judging by fixed and steady rules, and judging according to discretion, which is another word for fancy, avarice, resentment, or ambition, when supported by power, or freed from fear. And I have said in my former letter, that as there can be no convenience but has an inconvenience attending it, so both these methods of judging are liable to objections. There is a constant war between the legislature and the pleader; and no law was ever enacted with so much circumspection, but flaws were found out afterwards in it, and it did not answer all the purposes intended by the law-makers; nor can any positive law be framed with so much contrivance, but artful men will slip out of it, and particularly in relation to libels. There are so many equivoques in language, so many sneers in expression, which naturally carry one meaning, and yet may intend another, that it is impossible by any fixed and stated rules to determine the intention, and punish all who deserve to be punished. But to get rid of this inconvenience at the expence of giving any man, or number of men, a discretionary power to judge anotherís intentions to be criminal, when his words do not plainly denote them to be so, is subverting all liberty, and subjecting all men to the caprices, to the arbitrary and wild will, of those in power. A text in scripture cannot be quoted, without being said to reflect on those who break it; nor the ten commandments read, without abusing all princes and great men, who often act against them all.

I must therefore beg leave to think, that it is a strange assertion, which, as I have heard, has been advanced by lawyers in Westminster-Hall; viz. That it is an absurdity to affirm, that a judge and jury are the only people in England who are not to understand an authorís meaning; which, I think, may be true in many instances, when they act judicially, and the words which he uses, candidly construed, do not import that meaning. Tiberius put many Senators to death, for looking melancholy or dissatisfied, or enviously at his power; and Nero many others, for not laughing at his play, or laughing in the wrong place, or sneering instead of laughing; and very probably both judged right in their intentions; but sure no body will think amongst us, that such examples ought to be copied. A man, by not pulling off his hat, or not low enough, by a turn upon his heel, by a frowning countenance, or an over-pleasant one, may induce his spectators to believe that he intends a disrespect to one to whom it is criminal to own it; yet it would be a strange act of power to punish him for this unobservance. So words may be certainly chosen with such art, or want of it, that they may naturally carry a compliment, and perhaps may mean it; and yet other people, by knowing that the person intended does not deserve one, may think him abused And if this way of judging may be indulged in Westminster-Hall, the Lord have mercy upon poets, and the writers of dedications, and of the epitaphs too upon great men. Surely it is of less consequence to mankind, that a witty author should now and then escape unpunished, than that all men should hold their tongues, or not learn to write, or cease writing.

I do agree, when the natural and genuine meaning and purport of words and expressions in libelous writings carry a criminal intention, that the writer ought not to escape punishment by subterfuge or evasion, or by a sly interpretation hid in a corner, and intended only for a court of justice, nor by annexing new names to known things, or by using circumlocutions instead of single sounds and expressions; for words are only arbitrary signs of ideas; and if any man will coin new words to old ideas, or annex new ideas to old words, and let this meaning be fully understood, without doubt he is answerable for it. But when words used in their true and proper sense, and understood in their literal and natural meaning, import nothing that is criminal; then to strain their genuine signification to make them intend sedition (which possibly the author might intend too) is such a stretch of discretionary power, as must subvert all the principles of free government, and overturn every species of liberty. I own, that with such a power, some men may escape censure who deserve censure, but with it no man can be safe; and it is certain, that few men or states will be aggrieved by this indulgence, but such as deserve much worse usage.

It is a maxim of politicks in despotick governments, that twenty innocent persons ought to be punished, rather than one guilty man escape; but the reverse of this is true in free states, in the ordinary course of justice: For since no law can be invented which can give power enough to their magistrates to reach every criminal, without giving them, by the abuse of the same law, a power to punish innocence and virtue, the greater evil ought to be avoided: And therefore when an innocent or criminal sense can be put upon words or actions, the meaning of which is not fully determined by other words or actions, the most beneficent construction ought to be made in favour of the person accused. The cause of liberty, and the good of the whole, ought to prevail, and to get the better of the just resentment otherwise due to the impertinence of a factious scribbler, or the impotent malice of a turbulent babbler.

This truth every man acknowledges, when it becomes his own case, or the case of his friends or party; and almost every man complains of it when he suffers by it: So great is the difference of menís having power in their hands or upon their shoulders! But at present, I think that no party amongst us can find their account either in the suppression or in the restraint of the press, or in being very severe in their animadversion upon the liberties taken by it. The independent Whigs think all liberty to depend upon freedom of speech, and freedom of writing, within the bounds of manners and discretion, as conceiving that there is often no other way left to be heard by their superiors, nor to apprize their countrymen of designs and conspiracies against their safety; which they think ought to be done boldly, though in respect to authority, as modestly as can be consistent with the making themselves understood; and such among them as have lately quitted their independence, think themselves obliged to handle a subject tenderly, upon which they have exerted themselves very strenuously in another circumstance of fortune.

Very many of the Tories, who may be at present ranked amongst the former sort of men, and who every day see more and more the advantages of liberty, and forget their former prejudices, will not be contented hereafter to receive their religion and politicks from an ignorant licenser, under the direction of those who have often neither religion nor politicks. And even the Jacobites themselves are so charmed with their own doughty performances, that they would not lose the pleasure of scolding at or abusing those whom they cannot hurt. Many of our spiritual guides will not be deprived of doing honour to themselves, and advantage to their flocks, from informing the world what they ought to believe by their particular systems; and the dissenting preachers are willing to keep their own flocks, and would not have the reasonableness of their separation judged of alone by those who differ from them, and have an interest in suppressing them. And I believe that all our world would be willing to have some other news besides what they find in the Gazette; and I hope that I may venture to say, that there is no number of men amongst us so very popular, as by their single credit and authority to get the better of all these interests.

But, besides the reasons that I have already given, there is another left behind, which is worth them all; namely, that all the methods hitherto taken to prevent real libels have proved ineffectual; and probably any method which can be taken, will only prevent the world from being informed of what they ought to know, and will increase the others. The subjecting the press to the regulation and inspection of any man whatsoever, can only hinder the publication of such books, as authors are willing to own, and are ready to defend; but can never restrain such as they apprehend to be criminal, which always come out by stealth. There is no hindering printers from having presses, unless all printing be forbidden, and scarce then: And dangerous and forbidden libels are more effectually dispersed, enquired after, and do more mischief, than libels openly published; which generally raise indignation against the author and his party. It is certain, that there were more published in King Charles IIís and King Jamesís times, when they were severely punished, and the press was restrained, than have ever been since. The beginning of Augustusís reign swarmed with libels, and continued to do so, whilst informers were encouraged; but when that prince despised them, they lost their force, and soon after died. And, I dare say, when the governors of any country give no occasion to just reflexions upon their ill conduct, they have nothing to fear but calumny and falsehood.

Whilst Tiberius, in the beginning of his reign, would preserve the appearance of governing the Romans worthily, he answered a parasite, who informed him in the Senate, of libels published against his person and authority, in these words; Si quidem locutus aliter fuerit, dabo operam ut rationem factorum meorum dictorumque reddam; si perseveraverit, invicem eum odero: ďIf any man reflect upon my words or actions, I will let him know my motives and reasons for them; but if he still go on to asperse and hate me, I will hate him again.Ē But afterwards, when that emperor became a bloody tyrant, words, silence, and even looks, were capital.

T I am, &c.

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