The former had the modesty to lay his damages for a libel in the Public
Advertiser
at £5000 ; the jury gave £100.
Hunt - Fourth Estate - History of Newspapers and Liberty of Press - v1
The clerk, having attended with the minute- book of recognizances belonging to the Lord Mayor's Court, was ordered up to the table ; and, a motion having been made and carried for the purpose, he was obliged, being in the cus
tody of the House, to erase the recognizance of Whittam, the messenger, out of the book ; after which a resolution was passed, that there should be no further proceedings at law in that case.
Most of the gentlemen in opposition had quitted the House
2-;s
THE FOURTH ESTATE.
during this transaction, declaring that they would not be wit nesses to such an unprecedented act of violence ; that it was assuming and exercising a power of the most dangerous nature, with which the constitution had not entrusted any part of the Legislature; and that the effacing of a record, stopping the course of justice, and suspending the law of the land, were among the heaviest charges that could be brought against the most arbitrary despot. The Lord Mayor, whose illness had for some days retarded this affair, having at length attended in his place, produced the charter and copies of the oaths administered to the city magistrates ; afterwhich he said, that itwas evident that
he could not have acted otherwise than he did, without having violated his oath and his duty ; that he had acted in defence of the laws of his country, which were manifestly invaded ; and that he should always glory in having done so, let the conse quences be as they would. It was then said that the privileges and practice of Parliament had at all times been invariably the same; and that the only question now was, an exception claimed by the city of London, through a charter derived from the Crown ; that the Crown could convey no powers through that charter, which were not inherent in itself ; and that it had no power over the privileges of that House. That their privi
leges were a check upon the other branches of the Legislature ; that consequently, their cause was the cause of liberty, and of the people at large ; and if the powers of the Commons were weakened, the security to liberty would be equally so. It was therefore moved, that the discharging J. Miller from the custody of the messenger was a breach of privilege. To this the minority objected, lamenting the condition into which the House was brought, by their listening to every insidious motion, or every trifling cause, purposely designed to make them instruments of the passions of the Court, and to render them odious, by continual contests with the people. That many of the majority seemed sensible of the imprudence of the first complaint ; yet when it was in their power to retract decently, they chose to renew the attack, and to bring six printers before the House, when one had proved too many for them.
All arguments were unavailing. The first resolution, to-
ALD. OLIVER COMMITTED TO THE TOWER. 239
gether with the two following, were then passed —that it was a breach of privilege to apprehend the messenger of the House executing his warrant under pretence of an assault ; and that it was a breach of privilege to hold the messenger to bail for such pretended assault.
The temper of the House is well shown by their after proceedings. It was proposed to proceed against Mr. Oliver, who was also a member, and had been refused counsel, as well as the Lord Mayor ; to this it was objected that it was then near one o'clock in the morning, and that no court ofjudicature in the world would proceed on a new trial at that hour; a motion was therefore made to adjourn : this was rejected by a
great majority ; and Mr. Oliver, being asked what he had to say in his defence, answered, that he owned and gloried in the fact laid to his charge ; that he knew no justification could avert the punishment that was intended for him ; he was conscious of having done his duty, and was indifferent as to the conse quences ; and as he thought it in vain to appeal to justice, so he defied the threats of power. It was then moved, that he should be sent to the Tower : great heat arose upon this question ; the severest censures, not without threats, were thrown out ; above thirty gentlemen quitted the House in a body, with declarations
of the utmost asperity. Some of those who cultivated an inte rest in the city, declared, that without regard to the present resolutions, they would now, in the same situation, act the part that Mr. Oliver did, and therefore, they should all be sent to the Tower together. Several attempts were made from the other side to bring Mr. Oliver to a submission, or at least, an acknowledgment of error, thereby, to give an opportunity of mitigating the punishment ; but he continued inflexible, declar ing that he had acted from law and principle, and therefore, would never submit to an imputation of guilt. The question for his being sent to the Tower was at length put, and carried
by 170 to 38, most of the minority having before quitted the House.
The city of London, (continues the Annual Register,) had taken a most active and sanguine part in favour of its magistrates during these transactions. A Court of Common-Council had
240 THE FOURTH ESTATE.
been held by a Locum-tenens at Guildhall, by which public thanks in writing were presented to the Lord Mayor and the
two Aldermen, for having supported the privileges and fran chises of the city, and defended our excellent constitution. A committee of four Aldermen and eight Commoners was also appointed, to assist them in making their defence, with instruc tions to employ such counsel as they should think proper upon this important occasion, and powers to draw upon the Chamber of London for money. The crowds which attended the magis trates, upon the different occasions of their going and returning from the House of Commons, were amazingly great ; the streets from the Mansion-house to Westminster re-echoed with shouts ; nothing could be more nattering to minds eager for popularity, than the acclamations of applause and gratitude which they received upon these occasions ; they were considered as sacrifices to public liberty, and the Lord Mayor was called the people's friend, the guardian of the city's right, and of the liberties of the nation. March 27th. — Two days after the commitment of Mr. Oliver to the Tower, the Lord Mayor with his committee attended at the House of Commons to receive his sentence; the crowd was prodigious, and great irregularities were com mitted; several gentlemen were insulted in the grossest manner, and some in very high office very narrowly escaped with their lives: the Sheriffs, though attended by the Westminster Justices, and an army of constables, were insufficient to preserve
order ; and a knowledge that the guards, both horse and foot, had been previously prepared, and were ready to act, if called upon, had but little effect. It is said, that some violent spirits proposed that desperate and fatal recourse of calling in the military ; but a happier temper prevailed in general. At length a number of the most popular gentlemen came out, and inter fered personally in the crowd, and, having taken great pains to remonstrate with the people upon the impropriety and danger of their conduct, and adjured them, by everything that was dear and sacred to them, to disperse and retire to their respective homes ; they succeeded so far, as to persuade them to retire to a greater distance from the avenues of the House, and to make no further disturbance.
THE LORD MAYOR COMMITTED TO THE TOWER.
The confusion and disorder, however, was so great, that it was evening before the House could proceed to business. The order of the day, with respect to the Lord Mayor, being then called for, most of the principal gentlemen in the opposition declared, that as he was not permitted to be heard by counsel, they considered it a prohibition of justice ; and for the same reason they could not be sufficiently informed of the strength of the plea, and therefore they would not stay to give judgment on it; and they accordingly quitted the House. The chief magistrate said, that he looked upon his case as already pre judged, and would therefore add nothing to what he had before urged in his defence. It was then said, that, though his crimes were of a higher nature than those of Mr. Oliver, yet in con sideration of his ill state of health, it should only be moved to take him into the custody of the Serjeant-at-Arms. This intended favour was utterly disclaimed by the Lord Mayor, who said, he wished for none ; and that whatever state his health might be in, he gloried in undergoing the same fate with his friend. The motion was accordingly amended, and the question for his commitment to the Tower carried by 202 against 39. The populace took his horses from the coach, and drew it to Temple-bar, though it was then midnight ; and, having con
ceived some suspicion of the deputy Serjeant-at-Arms, who attended him, when they got there they shut the gates and informed his Lordship that his company had been drawn to the utmost extent of their boundaries, and that they must now immediately get out. The chief magistrate comprehended the full extent of the danger they were in, and pledged his honour that the gentlemen with him were his particular friends, who were to accompany him home ; upon which they proceeded to the Mansion-house with loud huzzas.
The ministry had been frequently attacked for directing the whole weight of this prosecution against two only of the ma gistrates, while Mr. Wilkes, who was equally concerned with them, and had led the way in opposing the effects of the pro clamation, was allowed to triumph in his contumacy. They were repeatedly asked, Whether they considered him as above or below the law ? Whether it was fear or contempt that pro-
VOL. I. Q
241
242 THE FOURTH ESTATE.
cured an impunity to him, in a cause for which others were persecuted with such unremitted violence ? It seemed, indeed, that they were very cautious of involving themselves with that
He had been ordered to attend ; upon which he wrote a letter directed to the Speaker, that as no notice had been taken in the order of his being a member, and that his attend ance had not been desired in his place, both of which were indispensably necessary; that he now, in the name of his constituents, demanded his seat in Parliament, when he would give a full detail of his conduct in this transaction, which would consequently amount to a complete justification of it. This letter was offered to the Speaker in the House by a member, but, upon an idea of informality, after occasioning a long debate, it was neither received nor admitted to be read. Other orders were issued for his attendance, of which he took no notice ; and, at length, a few days before the recess at Easter, he was ordered to attend on the 8th of April. At the same time, knowing that he would not attend, and not knowing how to punish his contumacy, they had got into a great difficulty ; and no expedient occurred for freeing themselves from it, except one, that was more necessary than honourable. The House
itself to the 9th, and thus passed over the day appointed for Wilkes to attend. These proceedings in the House gave nearly as little satisfaction to those who took a lead in them, as to those by whom they were opposed. It was said, that the House had been drawn to show a disposition to the use of the strongest measures in support of their privileges ; but that all their exertion had tended only to lower the opinion of their power in the estimation of the world. Their commands were not followed by obedience ; their menaces were not accom panied by terror ; their punishments, by being marks of honour with the people, were converted into rewards. They had indeed committed their members to the Tower ; but this extending no further, seemed to confine their power to their own walls, some had been bold enough to assert that, legally, it ought to go no further ; that they themselves had seemed to admit the same thing in practice, since they suffered themselves to be insulted by every one abroad with perfect impunity. This state was
gentleman.
adjourned
PARLIAMENT DEFEATED BY THE PRESS.
243
admitted upon both sides. The opposition argued from thence that they ought to desist as soon as possible from the course of measures which had brought them into this disgraceful situation. The ministry, from the same facts, drew a different conclusion. They insisted, that they ought to pursue the same course they had begun, until they had obtained a complete obedience to their orders, and a submissive acknowledgment of their un doubted privileges. This latter opinion prevailed. A special commission was appointed by ballot (a measure which had not been taken for a long time on any occasion) in order to the assertion and support of their dignity. Great expectations were formed of a committee thus solemnly chosen, for the decision of such important points so very strongly controverted. The committee sat regularly for a long time. At length, when they came to make that report on which the public attention was so earnestly fixed, it amounted (after an historical deduc
tion, from their journals, of the instances in which the House had exerted the privilege of apprehension and imprisonment,) to no more than a recommendation to the House, that J. Miller should be taken into custody. Nothing was done in conse quence of this advice of the committee. The opposition threw out several bitter sarcasms on this miserable result of all the pretended vigour of the ministry ; and thus ended this long- agitated and vexatious business.
The Parliament virtually admitted themselves defeated. On the prorogation, which took place July the 23rd, the imprisoned magistrates left the Tower, as a matter of course, the Parliament who held them in prison being dissolved. It was a triumph for the popular party at the time, but the rejoicings which
the released Mayor on his return to the Mansion-house, were but slight evidences of the achievement for liberty compared with the enduring testimonies that have subsisted to this day. The
debates have been printed ever since. The Parliament Q2
greeted
214 THE FOURTH ESTATE.
made no formal concession of leave ; but they have
never since dared to deny the right of the people to a
knowledge of the proceedings of their representatives. We have seen that the Gazetteer and The Middlesex Journal were the two Papers first attacked ; the other publications that afterwards bore part in the memorable
fray were the Morning Chronicle, St. James's Chro nicle, London, Whitehall, and General Evening Posts, and the London Packet. The printers of the first two Papers were proceeded against on the 8th of February
1771 ; and steps were taken against the others on the 13th of the following March. The excitement caused by this battle between the Parliament and the press raised the sale of all, and gave the people an impressive
idea of the power of this rising Fourth Estate, and of its value as a bulwark of popular liberty.
Thischapterisheaded with the titles of a Newspaper of 1688 and one of 1788. The Orange Intelligencer started in the year of the Revolution. The first number of The Times appeared exactly a hundred years after wards, and they may therefore well stand as two boundary marks, indicating the extremes of a century of News paper history. Let us see what that century had done for such publications. The Intelligencer, though set up at a time of political importance, and of increased liberty, was small in size and meagre in contents. It appeared only twice a-week, and consisted of two pages, that is to say, one leaf of paper about the size of Charles Knight's Penny Magazine, but containing a smaller quantity of matter than two pages of that publication. As a specimen of the contents of these
Newspapers, let us examine the Universal Intelligencer
THE FIRST DAILY PAPER.
245
of December 11, 1688. Itboasts two advertisements; a small paragraph amongst its News describes the seizing of Jefferies, in his attempt to escape from the anger of his enemies ; besides this interesting morsel of intelligence, the Paper has sixteen lines of News from Ireland, and eight lines from Scotland; whilst under its News of England, we have not very much more. One of the items tells us, that " on the 7th inst. the Prince of Orange supt at the Bear Inn, Hungerford. " There are other headings, such as "Forrain News" and "Domestick News," but the whole affair is meagre. In the hundred years between this Paper and number one of The Times, the Journalists had had much schooling. We have seen what men
of talent had contributed to the political disscussions of the period, and have noted, moreover, some of the persecutions to which Journalists had been subjected. * When the public required a daily Paper, a daily Paper was produced, and, appearing more frequently, it gave of course a more complete account of the world's
but how far did that account extend? The first number of The Daily Courant consists of
one page of paper, something taller than the Penny Magazine ; one side of which only is printed upon, the other being blank. The whole matter it contains
* Another instance may be mentioned here. In 1711, Mr. Secretary St. John committed to Newgate fourteen editors, printers, and pub lishers ; and, amongst them, the conductors of The Protestant Postboy, The Flying Post, and The Medley. One of the victims was Ridpath, who, in addition to his sufferings from the power of Bolingbroke, and the virulence of Swift, came" in for the ridicule of Pope, who gives him a line in the Dunciad. — To dullness Ridpath is as dear as Mist. " This Mist was the printer of another Newspaper which bore his name.
proceedings;
246 THE FOURTH ESTATE.
would scarcely fill a column of one of our present
morning Journals. The imprint is, " London :
let, next door to the King's Arms Tavern, at Fleet Bridge. " The News of the first number is all from abroad ; and the editor takes credit for unusual impar tiality, when he states that he intends always to quote the title of the foreign Papers from which he may extract News. Subsequent sheets contain home facts. By 1724, many other Papers had taken the field ; and in that year we find, by a list laid before Viscount Townsend, in which the politics of the Papers were indicated, the following entered as " well-affected to King George :—Buckley, Amen Corner, the worthy printer of the Gazette; Matthew Jenour, Giltspur Street, printer of The Flying Post ; Leach, Old Bailey, of the Postman ; Parker, Salisbury Street, Halfpenny Post ; Read, Whitefriars, Halfpenny Post and Weekly Journal ; Wilkins, Little Britain, Whitehall Evening Post, and Whitehall and London Journal. "
As time progressed, the Papers increased in size as well as number. Four pages of type began to be given ; and, in the files at the British Museum, we find, amongst a crowd of by-gone names, many familar titles. There are Posts, and Heralds, and Chronicles, and Advertisers. Post and Advertiser seem to have long beenfavourite headings for Papers—the first doubtless, from the custom of preparing News for the post-bags ; the other when advertisements required circulation, and became a source of income to Newspapers. There
were Daily Posts and Evening Posts, * St. James's
* Holcroft found an editor of a Newspaper —The Whitehall Even ing Post—who so far approved of his essays as to pay five shillings a
E. Mal
FIRST NUMBER OF " THE TIMES. "
247
Posts, Whitehall Posts, Daily Advertisers, General Advertisers, Public Advertisers,* Universal Adver tisers, and Morning Advertisers. One facetious jour nalist headed his Paper, " All Alive and Merry, or The London Daily Post; "—probably his enemies had raised the false rumour that he was defunct, and he took this mode of displaying their mistake. Some what later, Journals, Ledgers, Gazetteers, Mercury's, Heralds, and Registers appear in the list, and when the hundred years from number one of the Orange Intel ligencer is complete comes number one of The Times.
The first number of The Times is dated January, 1788; the heading being, "The Times, or " Daily Universal Register, printed logographically. Its price is marked threepence, and its imprint runs, "Printed for J. Walter at the Logographic Press,
House Square, near Apothecaries' Hall, Blackfriars, where Advertisements, Essays, Letters, and Articles of Intelligence will be taken in. Also at Mr. Metteneus's, confectioner, Charing Cross; Mr. White- eavese's, watchmaker, No. 30, opposite St. Dunstan's Church, Fleet Street; Mr. Axtell's No. 1, Finch Lane, Cornhill; at Mr. Bushby's, No. 1, Catherine Street, Strand; Mr. Rose's, silk-dyer, Spring Gardens; and Mr. Grives's, stationer, No. 103, corner of Fountain Court, Strand. " In appearance, size, and contents, the first number of The Times shows the great advance which a century had enabled the Newspapers to make.
column for them. One of these productions was copied into The Annual Register. —Hazlitt's Life of Holcroft.
* Some further reference to the Paper of "Junius" Woodfall will be found in the chapter on London Morning Papers.
Printing
248 THE FOURTH ESTATE.
Compared with the first number of The Intelligencer of 1 688, the number one of the new journal, The Times of 1 788, is a giant. It con tains certainly ten times as much
matter; it has four pages, each of four columns some what smaller than The Globe or Standard now present; it has sixty- three advertisements, amongstwhich are an nouncements of a play, with Kemble and Mrs. Siddons, at Drury Lane; of a concert, by his Majesty's command, " at the concert room in Tottenham Court Road;" and of lottery tickets to be had at offices open for the sale of those then attractive documents. Mr. Walter also had many naval and other Government advertisements. In the columns of this infant number of a Journal now so famous in the world, there is foreign as well as home intelligence; poetry ; shipping news ; and paragraphs of gossip, some of them rather doubtful in character. In the prospectus or address to the readers of the candidate for public support, is explained that The
Times was a title assumed as better adapted to the
Paper than the heading by which it had previously been known ; for The Times was a continuation of The London Daily Universal Register, started on the 13 th of January, 1785, of which more will be found in the chapter on the London Daily Papers. The Times came into a field already well occupied by the Morn ing Herald, Chronicle, Post, and Advertiser ; but enough has been said, in the present place, to in dicate the advances made during a century by the Newspaper press. During this period it had been courted by ministers, been employed by politicians, had come triumphantly out of a contest with Parliament,
whilst other victories had earned the praises of a poet ;
cowper's newspaper sketch.
249
for does not Cowper—who shrunk so sensitively from a world which he was nevertheless anxious to hear of and able to instruct —does not Cowper sing: —
This folio of four pages, happy work,
Which not e'en critics criticise. *#•*
What is it but a map of busy life,
Its fluctuations and its vast concerns ?
Here runs the mountainous and craggy ridge
That tempts ambition. On the summit see
The seals of office glitter in his eyes ;
He climbs, he pants, he grasps them. At his heels, Close at his heels a demagogue ascends,
And with a dexterous jerk soon twists him down, And wins them, but to lose them in his turn.
Here rills of oily eloquence in soft
Meanders lubricate the course they take ;
The modest speaker is ashamed and grieved,
To engross a moment's notice ; and yet begs,
Begs a propitious ear for his poor thoughts, However trivial all that he conceives.
Sweet bashfulness ! it claims at least this praise ;
The dearth of information and good sense, That it foretells us, always comes to pass. Cataracts of declamation thunder here ;
There forests of no meaning spread the page, In which all comprehension wanders lost ; While fields of pleasantry amuse us there With merry descants on a nation's woes.
The rest appears a wilderness of strange
But gay confusion ; roses for the cheeks,
And lilies for the brows of faded age ;
Teeth for the toothless, ringlets for the bald, Heaven, earth, and ocean plundered of their sweets, Nectareous essences, Olympian dews,
Sermons and city-feasts, and favourite airs, Ethereal journeys, submarine exploits,
THE FOURTH ESTATE.
And Katerfelto, with his hair on end,
At his own wonders, wondering for his bread.
'T is pleasant from the loopholes of retreat To peep at such a world; to see the stir
Of the great Babel, and not feel the crowd ;
To hear the roar she sends through all her gates At a safe distance, where the dying sound
Falls a soft murmur on the uninjured ear.
Thus sitting, and surveying thus at ease
The globe and its concerns, I seem advanced
To some secure and more than mortal height, That liberates and exempts me from them all. It turns submitted to my view, turns round
I behold
The tumult and am still. The sound of war
With all its generations ;
Has lost its terrors ere it reaches me ;
Grieves but alarms me not. I mourn the pride And avarice, that make man wolf to man ; Hear the faint echo of those brazen throats,
By which he speaks the language of the heart, And sigh, but never tremble at the sound,
He travels and expatiates, as the bee
From flower to flower, so he from land to land, The manners, customs, policy of all
Pay contribution to the store he gleans ;
He sucks intelligence in every clime,
And spreads the honey of his deep research
At his return— a rich repast for me.
He travels and I too. I tread his deck,
Ascend his topmast, through his peering eyes Discover countries, with a kindred heart Suffer his woes, and share in his escapes ; While fancy like the finger of a clock,
Runs the great circuit and is still at home.
CHAPTER VI.
NEWSPAPERS AND JOURNALISTS FROM 1788 TO 1800.
" The liberties of the press and the liberties of the people must stand or fall together. " —Hume.
The Press in the Reign of George the Third. —Numerous Laws and Prosecutions. — Statute on Libel. — Trial of Paine, and Speech of Erskine. — Sheridan. — Burke. — Crabbe. — Summary of Acts of Par liament. —Attempts to gag the Newspapers.
THE reign of George the Third was an eventful In the days of no previous monarch had so many laws been passed having refer
ence to the publication of News, nor had public writers ever before taken up so bold a position as the one they assumed during the life of the king who lost America and added several hundred millions to the national debt. When the revolutionary spirit roused America to a rebellion that eventuated in independence, the press was called upon to play an important part, and in spite of repressive enactments, public prosecutions, and heavy sentences when convictions were obtained, the doctrines of progressive reform and social ameli oration found expression in type, to the advancement of political knowledge amongst the people, and the improvement of our political institutions. The spread
THE FOURTH ESTATE.
of republican doctrines through the neighbouring country when its first revolutionary struggle began, gave a great impetus to political inquiry in England, nor was there any lack of pens ready to advocate doctrines very obnoxious to the existing authorities. A ready sale being found for such publications, their authors had a renewed stimulus for production, and when the law was called upon to punish the verbal rebellion, the honours of martyrdom were awarded to those who had already gained the profits of sedition. One hundred and fifty thousand copies of Paine's Rights of Man are said to have been sold in a mar vellously short time, whilst upwards of thirty thousand
impressions of Burke's reply found purchasers. This amount of attention given to two political combatants shows in itself the great interest taken by the public in the questions debated. Besides these two well-known partizans, a host of other writers came into the arena to claim the attention of the people, and to give discomfort to the government, —and amongst them were Mackintosh and Cobbett. Although each fresh law added to the bonds of the press, and crippled its operations by increasing the tax upon Newspapers, such publications continued to grow in numbers, size, and importance. A glance at the stated circulation
century will exhibit their rate of increase. The numbers in
of Papers during forty years of the eighteenth
1753 were 7,411,757; in 1760, 9,484,791; in 1790, 14,035,739 ; in 1791, 14,794,153; whilst in 1792 the number rose to 15,005,760.
Many prosecutions took place during the last quarter of the eighteenth century, and amongst those
ACTIONS FOR LIBEL. 253
who figured conspicuously as a defendant was Mr. Woodfall of the Public Advertiser. In 1776, that spirited journalist was sued for libel by Lord Chatham, but escaped conviction through a flaw in the proceed
In
ventured to print an expression of joy that Admiral Keppel, the companion of Anson, had triumphed over his enemies by securing an acquittal by court-martial, and for this Woodfall was tried, convicted, fined, and sentenced to twelve months imprisonment in Newgate. He also bore the brunt of actions byEdmundBurke and by Lord Loughborough.
The former had the modesty to lay his damages for a libel in the Public Advertiser at £5000 ; the jury gave £100. A similar case of difference of opinion arose in 1786, when Almon was proceeded against by Pitt for a libel in the General Advertiser. The minister estimated the damage done to his character at £10,000, a sum which was reduced in the verdict to £150. In the same year that Lord Chatham proceeded against Woodfall, the Newspapers in which notices of the Constitutional Society appeared felt the displeasure of the Government. On the 17th of December, 1776, J. Baldwin, J. Miller, J. Wilkie, and H. Randall, four Newspaper printers, were found guilty of publishing a letter from the Constitutional Society respecting the payment of £100 to Franklin — three of them were fined £100 each. All the printers who inserted an advertisement from the Constitutional Society, signed by Home (Tooke), were served with writs ; but Home being convicted and fined, the affair dropped as regards the Newspapers.
Whilst the case of Warren Hastings was before
ings.
1 779, Woodfall was less fortunate. He
254 THE FOURTH ESTATE.
Parliament, the Newspapers came in for a share of the attention and the anger of the House of Commons. Mr. Markham, a member of that body, called attention to a paragraph in a public journal, in which it was said, " that the trial of Mr. Hastings was to be put off for another sessions unless the House of Lords had spirit
to put an end to so shameful a business. " " After some remarks," says the Annual Register,* "upon the scandalous licentiousness of the press, a motion was made and carried unanimously, for pro secuting the printer of the Paper. In the course of the conversation which this motion gave rise to, Mr. Burke read from one of the public Prints a curious paper, purporting to be a bill of charges made by the editor upon Major Scott, for sundry articles inserted in the Paper on his account. They chiefly consisted of speeches, letters, paragraphs composed by him, and amongst the rest was this item, ' For attacking the veracity of Mr. Burke, 3s. 6d. ' "
When the Chancellor of the Exchequer, brought forward his financial statement in June, 1789, Mr. Pitt proposed to raise an additional hundred thousand a year by new taxes. He fixed on the stamp duties as most convenient for his purpose, and proposed to augment certain of them to secure the sum he wanted. First on his list came Newspapers, which he suggested should pay an additional halfpenny each, and from this source he anticipated an annual return of £28,000. His second tax was an additional six pence upon each advertisement, and the gain from this he estimated at . £9,000. Probates,
* Annual Register, Vol. XXXI. , p. 164.
enough
legacies,
THE ARGDS. 25r,
and horses, also came in for a share of the
carriages,
money-wanting minister's regard, and much opposition was expressed to the demand. Sheridan was amongst those who demanded inquiry into the real state of the national finances. After six years of peace, it was declared to be unreasonable and impolitic to ask for additional taxes. The wit, dramatist, and politician launched one of his brilliant speeches against the Government, and exhibited in very startling light the mismanagement and unsound state of the national
of finance. Grenville followed Sheridan, to repair, by his advocacy of the Government scheme, the injury which the opposition speech had done but the upshot of the debate was the old story of strong majority, and the new taxes on Newspapers were voted by the House.
Sampson Perry, printer of The Argus, was found guilty, December 10, 1792, in the Court of Queen's Bench, of publishing libel on the House of Commons, in stating, " the House of Commons were not the real representatives of the people. " A reward of £100 was offered for Perry's apprehension. The title of Argus had more than once borne ill-repute. Shortly before this period, one Lewis Goldsmith, an English Jew and notary, had attracted persecution by publication called Crimes of Cabinets. To escape the consequences of sentence for libel and sedition, he fled to France, and there edited Paper called The Argus, with funds supplied by the French Minister of Foreign Affairs. In this he fiercely attacked everything English.
Getting information of police plot for delivering him up to the British authorities, he contrived,
system
it is
a
it,
a a
a
a
a
2. 30 THE FOURTH ESTATE.
said, to make terms for himself, and returned to this country, where he underwent the form of a trial for
treason, and was discharged ; whereupon he began a weekly Paper called the Anti-Gallican Monitor, in which he assailed Bonaparte most virulently, and continued to do so till Louis XVIII. was restored, when that monarch, it is stated, rewarded this venal writer with a large gratuity and a pension.
A most important change in the law was effected in 1792. In that year* an act was passed to remove doubts respecting the functions of juries in cases of libel, by which the law was declared to be, that on the trial of an indictment for a libel, the jury may give a general verdict upon the whole matter put in issue, and shall not be required by the court to find the
defendant guilty merely on proof of the publication, and of the sense ascribed to it in the information — the judges giving their opinion and directions on the matter at issue as in other criminal cases. This enactment, so influential in most trials where the liberty of the press is concerned, draws from Mr. Hallam the following remarks :—" The liberty of the press," says the writer of the Constitutional History, " consists, in a strict sense, merely in an exemption
from the superintendence of a licenser. But it cannot be said to exist in any security, or sufficiently for its principal ends, where discussions of a political or religious nature, whether general or particular, are restrained by too narrow and severe limitations. The law of libel has always been indefinite; an evil pro bably beyond any complete remedy, but which evidently
* 32 Geo. III. , c. 60.
THE LAW OF LIBEL. 257
renders the liberty of free discussion rather more precarious in its exercise than might be wished. It appears to have been the received doctrine in West minster Hall before the Revolution, that no man might publish a writing reflecting on the Government, nor upon the character, or even capacity and fitness, of any one employed in it. Nothing having passed to change the law, the law remained as before. Hence, in the case of Tutchin, it is laid down by Holt, that to possess the people with an ill opinion of the Go vernment, that is, of the Ministry, is a libel. And the Attorney General, in his speech for the prosecution, urges, that there can be no reflection on those that are in office under Her Majesty, but it must cast some reflection on the Queen who employs them. Yet, in this case, the censure upon the Administration, in the passages selected for prosecution, was merely general, and without reference to any person, upon which the counsel for Tutchin vainly relied. *
" It is manifest that such a doctrine was irreconcil able with the interests of any party out of power, whose best hope to regain it is commonly by prepossessing the nation with a bad opinion of their adversaries. Nor would it have been possible for any Ministry to stop the torrent of a free press, under the secret guidance of a powerful faction, by a few indictments
* State Trials, XIV. 1103. — 1128. Mr. Justice Powell told the Rev. Mr. Stephens, in passing sentence on him for a libel on Harley and Marlborough, that to traduce the Queen's Ministers was a reflec tion on the Queen herself. It is said, however, that this and other prosecutions were generally blamed, for the public feeling was strong in favour of the liberty of the press. Beyer's Right of Queen Anne, p. 286, quoted by Hallam.
VOL. I. K
258 THE FOURTH ESTATE.
for libel. They found it generally more expedient and more agreeable to borrow weapons from the same armoury, and retaliate with unsparing invective and calumny. This was first practised (first, I mean, with the avowed countenance of Government) by Swift in the Examiner, and some of his other writings. And both parties soon went such lengths in this warfare, that it became tacitly understood that the public characters of statesmen, and the measures of admini strations, are the fair topics of pretty severe attack. Less than this, indeed, would not have contented the political temper of the nation, gradually and without intermission becoming more democratical, and more capable, as well as more accustomed, to judge of its general interests, and of those to whom they were intrusted. The just limit between political and private censure has been far better drawn in these later times, licentious as we still may justly deem the press, than in an age when courts of justice had not deigned to acknowledge, as they do at the present, its theoretical liberty. No writer, except of the most broken repu tation, would venture at this day on the malignant calumnies of Swift. - - "Meanwhile the judges naturally adhered to their established doctrine, and, in pro secutions for political libels, were very little inclined to favour what they deemed the presumption, if not the licentiousness, of the press. They advanced a little farther than their predecessors ; and, contrary to the
practice both before and after the Revolution, laid it down at length as an absolute principle, that falsehood, though always alleged in the indictment, was not essential to the guilt of the libel, refusing to admit its
THE LAW OF LIBEL. 259
truth to be pleaded, or even given in evidence, or even urged by way of mitigation of punishment. * But as the defendant could only be convicted by the verdict of a jury, and jurors both partook of thegeneral sentiment in favour of free discussion, and might in certain cases have acquired some prepossessions as to the real truth
of the supposed libel, which the court's refusal to enter upon it could not remove, they were often reluctant to find a verdict of guilty; and hence arose, by degrees, a sort of contention, which sometimes showed itself upon trials, and divided both the profession of the law and the general public. The judges and lawyers, for the most part, maintained that the province of the jury was only to determine the fact of publication, and
also whether what are called the innuendoes were properly filled up, that whether the libel meant that which was alleged in the indictment to mean, not whether such meaning were criminal or innocent,
question of law which the court were exclusively com petent to decide. That the jury might acquit at their
was undeniable; but was asserted that they would do so in violation of their oaths and duty,
they should reject the opinion of the judge by whom they were to be guided as to the general law. Others
Pemberton permitted evidence to be given as to the truth of an alleged libel, in protesting that Sir Edmondbury Godfrey had murdered himself. And what may be reckoned more important, in trial of the famous Fuller on similar charge, Holt repeatedly (not less than five times) offered to let him prove the truth he could. State Trials,
XTV. , 534. But on the trial of Franklin, in 1731, for publishing libel in The Craftsman, Lord Raymond positively refused to admit of any evidence to prove the matters to be true and said he was only abiding by what had been formerly done in other cases of the like nature. —Id. , XVII. , 659.
E
pleasure,
2
a
if ;
it
a
a
if *
a
it
is,
260 THE FOURTH ESTATE.
of great name in our jurisprudence, and the majority of the public at large, conceiving that this would throw the liberty of the press altogether into the hands of the judges, maintained that the jury had a strict right to take the whole matter into their consider ation, and determine the defendant's criminality or innocence according to the nature and circumstances of the publication. This controversy was settled by Fox's libel bill in 1792. It declares the right of the jury to find a general verdict upon the whole matter; and though, from causes easy to explain, it is not drawn in the most intelligible and consistent manner, was certainly designed to turn the defendant's inten tion, as it might be laudable or innocent, seditious or malignant, into a matter of fact for their inquiry and decision. "
On the 25th of May, 1792, a royal proclamation
seditious writings was brought before the notice of the House of Commons, when Mr. Grey, afterwards the hero of Parliamentary Reform, spoke warmly against the spirit of this attempt to check the free expression of thought. He said he scarcely knew how to express himself upon because he hardly could distinguish whether the sentiments which
birth to were more impotent or malicious. He declared that the efforts of the Association of the Friends of the People had alarmed the Ministers, who had concerted this measure for the purpose of insidi
against
those who had been united. He said the means to be adopted were disgraceful. The King's officers, his magistrates, "were to make diligent inquiry in order to discover the authors and publishers
ously separating
gave
it
it,
GEORGE III. 'S PROSECUTIONS. 261
of wicked and seditious writings ;" the real meaning of which was, that a system of espionage was to take place by order of the Crown. The very idea was surprising as well as odious, that a proclamation should issue from the Sovereign of a free people commanding such a system to be supported by spies and informers. But the arguments of the friends of liberty were ineffectual ; for never, in the whole course of English history, were so many prosecutions instituted against
writers, printers, and publishers, as during the reign of the King who issued this proclamation, that called forth the eloquent denunciation of Grey ; and never, perhaps, did any monarch find a more able and willing legal functionary, to promote a crusade
the press, than George III. found in Scott, afterwards Lord Eldon. During"a debate, in 1795, this indefatigable lawyer said, the House should remember, that there had been more prosecutions for libel within the last two years than there had been for twenty years before. " He evidently prided himself on the efforts taken to subdue the press, and from the day when he uttered the expression, till the end of the century, no relaxation of the powers of persecution were visible.
In 1792, all the authorities and arguments for liberty of the press were placed in array before the public, at a time when great attention was drawn to the subject by the political circumstances of the time. The French Revolution was in full force ; and an
Englishman, Thomas Paine, had been elected to a
seat in the republican assembly then sitting in Paris. Before he left London, to assume his new dignity, he
against
2C2 THE FOURTH ESTATE.
had published his well-known attack on monarchical government, under the title of the " Rights of Man. " It sold in all directions, and the Government deemed it prudent to institute a prosecution against the author, though he was beyond their reach. They, accordingly, proceeded by information in the King's Bench, and the case came on for trial on the 18th of December, 1792. The lawyers engaged in this case were all notable men, and amongst those for the prosecution were the future Lord Chancellor Eldon, then Sir
James Scott, Macdonald, and Wood, both afterwards
and the Hon. Spencer Percival, who was junior on the occasion. Five counsel appeared for the defence, and amongst them stood Erskine, who, by his address to the jury in favour of freedom of the
press, added another to his many previous oratorical triumphs. The trial come on at Guildhall, before Lord Kenyon; and Attorney General Macdonald having opened his case, and put in evidence letters from Paine acknowledging the authorship of the book, Erskine addressed himself to the defence. After referring to some preliminary points, he declared that the cause resolved itself into a question of the deepest interest to all — the nature and extent of the liberty of the English press. That there might be no mis understanding, he began by declaring himself a friend to monarchy and the English constitution, but prepared to defend his client upon principles not only consistent with the permanence and security of that constitution, but without which it could never have had an existence. The proposition he declared himself prepared to maintain as the basis of the
judges,
THE TRIAL OF PAINE. 2G3
liberty of the press was, " That every man not intend ing to mislead, but seeking to enlighten others with what his own reason and conscience, however errone
ously, had dictated to him as truth, may address
himself to the universal reason of a whole nation,
either upon the subject of government in general, or upon that of our own particular country ; — that he may analyze the principles of its constitution,—point out its errors and defects, — examine and publish its corruptions, —warn his fellow-citizens against their ruinous consequences, —and exert his whole faculties in pointing out the most advantageous changes in establishments which he considers to be radically de fective or sliding from their object by abuse. All this every subject of this country has a right to do, if he contemplates only what he thinks would be for its advantage, and but seeks to change the public mind by the conviction which flows from reasonings dictated
by conscience.
" If, indeed, he writes what he does not think ;—
contemplating the misery of others, he wickedly con demns what his own understanding approves —or, even admitting his real disgust against the Government
or its corruptions, he calumniates living magistrates, —or holds out to individuals, that they have right to run before the public mind in their conduct, —that
the public will, because they honestly wish to change —he then criminal upon every principle of
rational policy, as well as upon the immemorial pre
they may oppose by contumacy
reason only disapproves, —that they may disobey the law. because their judgment condemns — or resist
or force what private
it is
a
if
it,
a
;
if,
201 THE FOURTH ESTATE.
cedents of English justice ; because such a person seeks to disunite individuals from their duty to the whole, and excites to overt acts of misconduct in a part of the community, instead of endeavouring to change, by the impulse of reason, that universal assent which, in this, and in every country, constitutes the law
for all.
" Let me not be suspected to be contending, that it
is lawful to write a book pointing out defects in the English Government, and exciting individuals to des troy its sanctions, and to refuse obedience. But, on the other hand, I do contend that it is lawful to address the English nation on these momentous sub
jects; for, had it not been for this unalienable right, thanks be to God and our fathers for establishing it ! how should we have had this constitution which we so loudly boast of? If, in the march of the human mind, no man could have gone before the establish ments of the time he lived in, how could our establish ment, by reiterated changes, have become what it is ?
—if no man could have awakened the public mind to errors and abuses in our Government, how could it have passed on from stage to stage, through reformation and revolution, so as to have arrived from barbarism to such a pitch of happiness and perfection, that the Attorney General considers it as profanation to touch it farther, or to look for any future amendment ?
" In this manner power has reasoned in every age : —Government, in its own estimation, has been at all times a system of perfection; but a free press has ex amined and detected its errors, and the people have from time to time reformed them. This freedom has
erskine's speech. 266
alone made our Government what it is ; this freedom alone can preserve it. "
After an able argument, to show that his client was justified in the line of reasoning adopted in the book
that was the subject of prosecution, Erskine reminded the jury of the then recent change in the law that gave them greater power in such cases. "Although" said he, "my arguments upon the liberty of the press may
not to-day be honoured with your or the court's ap probation, I shall retire not at all disheartened, con soling myself with the reflection that a season may arrive for their reception. The most essential liberties of mankind have been but slowly and gradually received ; and so very late, indeed, do some of them
come to maturity, that, notwithstanding the Attorney General tells you that the very question I am now agitating is most peculiarly for your consideration, as a jury, under our ancient constitution, yet I must remind both you and him that your jurisdiction to consider and deal with it at all in judgment is but a year old. Before that late period, I ventured to
maintain this very right of a jury over the ques tion of libel under the same ancient constitution (I do not mean before the noble judge now present, for the matter was gone to rest in the courts long before he came to sit where he does, but) before a noble and reverend magistrate of the most exalted understanding, and of the most uncorrupted integrity :* he treated me
not with contempt, indeed, for of that his nature was incapable ; but he put me aside with indulgence, as you do a child while it is lisping its prattle out of season ;
* Earl of Mansfield.
liGG THE FOURTH ESTATE.
and if this cause had been tried then, instead of now, the defendant must have been instantly convicted on the proof of the publication, Iwhatever you might have
have lived to see it re solved, by an almost unanimoIus vote of the whole
"Gentlemen, I have insisted, at great length, upon the origin of governments, and detailed the authori ties which you have heard upon the subject, because I consider it to be not only an essential support, but the very foundation of the liberty of the press. If Mr. Burke be right in his principles of government, I admit that the press, in my sense of its freedom, ought not to be free, nor free in any sense at all; and that all addresses to the people upon the subject of government, and all speculations of amendment, of what kind or nature soever, are illegal and criminal ; —since, if the people have, without possible recall, delegated all their authorities, they have no jurisdiction to act, and therefore none to think and write upon such subjects; and it would be a libel to arraign Government or any of its acts before those that have no jurisdiction to correct them. But, on the other hand, as it is a settled rule in the law of England that the subject may always address a competent
jurisdiction, no legal argument can shake the freedom of the press in my sense of am supported in my doctrines concerning the great unalienable right of the people to reform or to change their go vernments.
thought of his case. Yet
Parliament of England, that
the right. If this be not an awful lesson of caution concerning opinions, where are such lessons to be read?
had all been in along
it,
if I
erskine's speech. 207
"It is because the liberty of the press resolves itself into this great issue, that it has been, in every country, the last liberty which subjects have been able to wrest from power. Other liberties are held under governments, but the liberty of opinion keeps govern ments themselves in due subjection to their duties. This has produced the martyrdom of truth in every age, and the world has been only purged from ignorance with the innocent blood of those who have enlightened it.
"Gentlemen, my strength and time are wasted, and I can only make this melancholy history pass like a shadow before you.
" I shall begin with the grand type and example.
" The universal God of nature, —the Saviour of mankind,—the fountain of all light, who came to pluck the world from eternal darkness, expired upon a cross,—the scoff of infidel scorn ; and his blessed apostles followed him in the train of martyrs. When he came in the flesh, he might have come like the Mahometan Prophet, as a powerful sovereign, and propagated his religion with an unconquerable sword, which even now, after the lapse of ages, is but slowly advancing, under the influence of reason, over the face of the earth ; but such a process would have been inconsistent with his mission, which was to confound the pride, and to establish the universal rights of men ;—he came therefore in that lowly state which is represented in the Gospel, and preached his consola tions to the poor.
"When the foundation of this religion was dis covered to be invulnerable and immortal, we find
2GS THE FOURTH ESTATE.
political power taking the church into partnership ;— thus began the corruptions both of religion and civil power, and, hand-in-hand together, what havoc have they not made in the world ! —ruling by ignorance and the persecution of truth : but this very persecution only hastened the revival of letters and liberty. Nay, you will find, that in the exact proportion that know ledge and learning have been beat down and fettered,
they have destroyed the governments which bound them. The court of Star Chamber, the first restriction of the press of England, was erected previous to all the great changes in the constitution. From that moment no man could legally write without an impri matur from the state ;—but truth and freedom found their way with greater force through secret channels ; and the unhappy Charles, unwarned by a free press, was brought to an ignominious death. When men can freely communicate their thoughts and their sufferings, real or imaginary, their passions spend themselves in air, like gunpowder scattered upon the surface; but pent up by terrors, they work unseen, burst forth in a moment, and destroy every thing in their course. Let reason be opposed to reason, and argu ment to argument, and every good government will be safe.
" The usurper, Cromwell, pursued the same system of restraint in support of his government, and the end
of it speedily followed. II. , Star Cham "At the Restoration of Charles the
ber ordinance of 1637 was worked up into an act of Parliament, and was followed up during that reign, and the short one that followed the most sanguinary
it, by
ANECDOTE OF CROMWELL. 269
but what fact in history is more no torious, than that this blind and contemptible policy prepared and hastened the Revolution ? At that great
era these cobwebs were all brushed away :—the freedom of the press was regenerated, and the country, ruled by its affections, has since enjoyed a century of tranquillity and glory. Thus I have maintained, by English history, that, in proportion as the press has been free, English government has been secure. "
Erskine then went on to quote the authority of Milton, Hume, and others, who had argued for the liberty of the press, and in the course of his eloquent harangue, told the story of Harrington's Oceana and
Cromwell. " The Oceana was seized by the Usurper as a libel, and the way it was recovered is remarkable. I mention it to show that Cromwell was a wise man in himself, and knew on what governments must stand for their support. Harrington waited on the Protector's daughter to beg for his book, which her father had taken, and on entering her apartment, snatched up her child and ran away. On her following him with surprise and terror, he turned to her and said, ' I know what you feel as a mother, feel then for me ; your father has got my child :' meaning the Oceana. The Oceana was afterwards restored on her petition : Cromwell answering with the sagacity of a sound politician, ' Let him have his book ; if my go vernment is made to stand, it has nothing to fear from paper shot. ' "
Erskine thus wound up his address : — " Engage the people by their affections, —convince their reason, —and they will be loyal from the only principle that
persecutions;
270 THE FOL'RTH ESTATE.
can make loyalty sincere, vigorous, or rational,—a conviction that it is their truest interest, and that their government is for their good. Constraint is the natural parent of resistance, and a pregnant proof that reason is not on the side of those who use it. You must all remember Lucian's pleasant story : Jupiter and a countryman were walking together conversing with great freedom and familiarity upon the subject of heaven and earth. The countryman listened with attention and acquiescence, while Jupiter strove only to convince him ; but happening to hint a doubt, Jupiter turned hastily round, and threatened him with his thunder. ' Ah ! ah ! ' says the country man, ' now, Jupiter, I know that you are wrong ; you are always wrong when you appeal to your thunder. ' This is the case with me—I can reason with the people of England, but I cannot fight against the thunder of authority. Gentlemen, this is my defence for free opinions. "
But the eloquence of the advocate, the arguments of the scholar and the politician, availed nothing with the jury on whom they were employed. A verdict of guilty was returned the minute Erskine concluded his address ; but his speech, thanks to short-hand, remains to us, and has often since been quoted, when the liberty of the press he argued for, has been as sailed.
Several other trials took place about this time, at the instance of the Attorney General, but verdJicts were
not always obtained by the Government.
uries, at times, availed themselves of the power given by the new libel law, and the legal proceedings, taken with a
BURKE AND CRABBE.
271
view to the suppression of the doctrines of the reform ers, had had the effect of increasing the popular appetite for political inquiry. Whilst Paine was regarded as a great authority on one side, Burke was
champion on the other. The great orator seems to have been assailed with much unfair abuse, and his friends did not fail to retort when opportunity offered. Burke's kindness to Crabbe apparently induced the latter to take up a pen against the Journals which
had attacked his patron.
tody of the House, to erase the recognizance of Whittam, the messenger, out of the book ; after which a resolution was passed, that there should be no further proceedings at law in that case.
Most of the gentlemen in opposition had quitted the House
2-;s
THE FOURTH ESTATE.
during this transaction, declaring that they would not be wit nesses to such an unprecedented act of violence ; that it was assuming and exercising a power of the most dangerous nature, with which the constitution had not entrusted any part of the Legislature; and that the effacing of a record, stopping the course of justice, and suspending the law of the land, were among the heaviest charges that could be brought against the most arbitrary despot. The Lord Mayor, whose illness had for some days retarded this affair, having at length attended in his place, produced the charter and copies of the oaths administered to the city magistrates ; afterwhich he said, that itwas evident that
he could not have acted otherwise than he did, without having violated his oath and his duty ; that he had acted in defence of the laws of his country, which were manifestly invaded ; and that he should always glory in having done so, let the conse quences be as they would. It was then said that the privileges and practice of Parliament had at all times been invariably the same; and that the only question now was, an exception claimed by the city of London, through a charter derived from the Crown ; that the Crown could convey no powers through that charter, which were not inherent in itself ; and that it had no power over the privileges of that House. That their privi
leges were a check upon the other branches of the Legislature ; that consequently, their cause was the cause of liberty, and of the people at large ; and if the powers of the Commons were weakened, the security to liberty would be equally so. It was therefore moved, that the discharging J. Miller from the custody of the messenger was a breach of privilege. To this the minority objected, lamenting the condition into which the House was brought, by their listening to every insidious motion, or every trifling cause, purposely designed to make them instruments of the passions of the Court, and to render them odious, by continual contests with the people. That many of the majority seemed sensible of the imprudence of the first complaint ; yet when it was in their power to retract decently, they chose to renew the attack, and to bring six printers before the House, when one had proved too many for them.
All arguments were unavailing. The first resolution, to-
ALD. OLIVER COMMITTED TO THE TOWER. 239
gether with the two following, were then passed —that it was a breach of privilege to apprehend the messenger of the House executing his warrant under pretence of an assault ; and that it was a breach of privilege to hold the messenger to bail for such pretended assault.
The temper of the House is well shown by their after proceedings. It was proposed to proceed against Mr. Oliver, who was also a member, and had been refused counsel, as well as the Lord Mayor ; to this it was objected that it was then near one o'clock in the morning, and that no court ofjudicature in the world would proceed on a new trial at that hour; a motion was therefore made to adjourn : this was rejected by a
great majority ; and Mr. Oliver, being asked what he had to say in his defence, answered, that he owned and gloried in the fact laid to his charge ; that he knew no justification could avert the punishment that was intended for him ; he was conscious of having done his duty, and was indifferent as to the conse quences ; and as he thought it in vain to appeal to justice, so he defied the threats of power. It was then moved, that he should be sent to the Tower : great heat arose upon this question ; the severest censures, not without threats, were thrown out ; above thirty gentlemen quitted the House in a body, with declarations
of the utmost asperity. Some of those who cultivated an inte rest in the city, declared, that without regard to the present resolutions, they would now, in the same situation, act the part that Mr. Oliver did, and therefore, they should all be sent to the Tower together. Several attempts were made from the other side to bring Mr. Oliver to a submission, or at least, an acknowledgment of error, thereby, to give an opportunity of mitigating the punishment ; but he continued inflexible, declar ing that he had acted from law and principle, and therefore, would never submit to an imputation of guilt. The question for his being sent to the Tower was at length put, and carried
by 170 to 38, most of the minority having before quitted the House.
The city of London, (continues the Annual Register,) had taken a most active and sanguine part in favour of its magistrates during these transactions. A Court of Common-Council had
240 THE FOURTH ESTATE.
been held by a Locum-tenens at Guildhall, by which public thanks in writing were presented to the Lord Mayor and the
two Aldermen, for having supported the privileges and fran chises of the city, and defended our excellent constitution. A committee of four Aldermen and eight Commoners was also appointed, to assist them in making their defence, with instruc tions to employ such counsel as they should think proper upon this important occasion, and powers to draw upon the Chamber of London for money. The crowds which attended the magis trates, upon the different occasions of their going and returning from the House of Commons, were amazingly great ; the streets from the Mansion-house to Westminster re-echoed with shouts ; nothing could be more nattering to minds eager for popularity, than the acclamations of applause and gratitude which they received upon these occasions ; they were considered as sacrifices to public liberty, and the Lord Mayor was called the people's friend, the guardian of the city's right, and of the liberties of the nation. March 27th. — Two days after the commitment of Mr. Oliver to the Tower, the Lord Mayor with his committee attended at the House of Commons to receive his sentence; the crowd was prodigious, and great irregularities were com mitted; several gentlemen were insulted in the grossest manner, and some in very high office very narrowly escaped with their lives: the Sheriffs, though attended by the Westminster Justices, and an army of constables, were insufficient to preserve
order ; and a knowledge that the guards, both horse and foot, had been previously prepared, and were ready to act, if called upon, had but little effect. It is said, that some violent spirits proposed that desperate and fatal recourse of calling in the military ; but a happier temper prevailed in general. At length a number of the most popular gentlemen came out, and inter fered personally in the crowd, and, having taken great pains to remonstrate with the people upon the impropriety and danger of their conduct, and adjured them, by everything that was dear and sacred to them, to disperse and retire to their respective homes ; they succeeded so far, as to persuade them to retire to a greater distance from the avenues of the House, and to make no further disturbance.
THE LORD MAYOR COMMITTED TO THE TOWER.
The confusion and disorder, however, was so great, that it was evening before the House could proceed to business. The order of the day, with respect to the Lord Mayor, being then called for, most of the principal gentlemen in the opposition declared, that as he was not permitted to be heard by counsel, they considered it a prohibition of justice ; and for the same reason they could not be sufficiently informed of the strength of the plea, and therefore they would not stay to give judgment on it; and they accordingly quitted the House. The chief magistrate said, that he looked upon his case as already pre judged, and would therefore add nothing to what he had before urged in his defence. It was then said, that, though his crimes were of a higher nature than those of Mr. Oliver, yet in con sideration of his ill state of health, it should only be moved to take him into the custody of the Serjeant-at-Arms. This intended favour was utterly disclaimed by the Lord Mayor, who said, he wished for none ; and that whatever state his health might be in, he gloried in undergoing the same fate with his friend. The motion was accordingly amended, and the question for his commitment to the Tower carried by 202 against 39. The populace took his horses from the coach, and drew it to Temple-bar, though it was then midnight ; and, having con
ceived some suspicion of the deputy Serjeant-at-Arms, who attended him, when they got there they shut the gates and informed his Lordship that his company had been drawn to the utmost extent of their boundaries, and that they must now immediately get out. The chief magistrate comprehended the full extent of the danger they were in, and pledged his honour that the gentlemen with him were his particular friends, who were to accompany him home ; upon which they proceeded to the Mansion-house with loud huzzas.
The ministry had been frequently attacked for directing the whole weight of this prosecution against two only of the ma gistrates, while Mr. Wilkes, who was equally concerned with them, and had led the way in opposing the effects of the pro clamation, was allowed to triumph in his contumacy. They were repeatedly asked, Whether they considered him as above or below the law ? Whether it was fear or contempt that pro-
VOL. I. Q
241
242 THE FOURTH ESTATE.
cured an impunity to him, in a cause for which others were persecuted with such unremitted violence ? It seemed, indeed, that they were very cautious of involving themselves with that
He had been ordered to attend ; upon which he wrote a letter directed to the Speaker, that as no notice had been taken in the order of his being a member, and that his attend ance had not been desired in his place, both of which were indispensably necessary; that he now, in the name of his constituents, demanded his seat in Parliament, when he would give a full detail of his conduct in this transaction, which would consequently amount to a complete justification of it. This letter was offered to the Speaker in the House by a member, but, upon an idea of informality, after occasioning a long debate, it was neither received nor admitted to be read. Other orders were issued for his attendance, of which he took no notice ; and, at length, a few days before the recess at Easter, he was ordered to attend on the 8th of April. At the same time, knowing that he would not attend, and not knowing how to punish his contumacy, they had got into a great difficulty ; and no expedient occurred for freeing themselves from it, except one, that was more necessary than honourable. The House
itself to the 9th, and thus passed over the day appointed for Wilkes to attend. These proceedings in the House gave nearly as little satisfaction to those who took a lead in them, as to those by whom they were opposed. It was said, that the House had been drawn to show a disposition to the use of the strongest measures in support of their privileges ; but that all their exertion had tended only to lower the opinion of their power in the estimation of the world. Their commands were not followed by obedience ; their menaces were not accom panied by terror ; their punishments, by being marks of honour with the people, were converted into rewards. They had indeed committed their members to the Tower ; but this extending no further, seemed to confine their power to their own walls, some had been bold enough to assert that, legally, it ought to go no further ; that they themselves had seemed to admit the same thing in practice, since they suffered themselves to be insulted by every one abroad with perfect impunity. This state was
gentleman.
adjourned
PARLIAMENT DEFEATED BY THE PRESS.
243
admitted upon both sides. The opposition argued from thence that they ought to desist as soon as possible from the course of measures which had brought them into this disgraceful situation. The ministry, from the same facts, drew a different conclusion. They insisted, that they ought to pursue the same course they had begun, until they had obtained a complete obedience to their orders, and a submissive acknowledgment of their un doubted privileges. This latter opinion prevailed. A special commission was appointed by ballot (a measure which had not been taken for a long time on any occasion) in order to the assertion and support of their dignity. Great expectations were formed of a committee thus solemnly chosen, for the decision of such important points so very strongly controverted. The committee sat regularly for a long time. At length, when they came to make that report on which the public attention was so earnestly fixed, it amounted (after an historical deduc
tion, from their journals, of the instances in which the House had exerted the privilege of apprehension and imprisonment,) to no more than a recommendation to the House, that J. Miller should be taken into custody. Nothing was done in conse quence of this advice of the committee. The opposition threw out several bitter sarcasms on this miserable result of all the pretended vigour of the ministry ; and thus ended this long- agitated and vexatious business.
The Parliament virtually admitted themselves defeated. On the prorogation, which took place July the 23rd, the imprisoned magistrates left the Tower, as a matter of course, the Parliament who held them in prison being dissolved. It was a triumph for the popular party at the time, but the rejoicings which
the released Mayor on his return to the Mansion-house, were but slight evidences of the achievement for liberty compared with the enduring testimonies that have subsisted to this day. The
debates have been printed ever since. The Parliament Q2
greeted
214 THE FOURTH ESTATE.
made no formal concession of leave ; but they have
never since dared to deny the right of the people to a
knowledge of the proceedings of their representatives. We have seen that the Gazetteer and The Middlesex Journal were the two Papers first attacked ; the other publications that afterwards bore part in the memorable
fray were the Morning Chronicle, St. James's Chro nicle, London, Whitehall, and General Evening Posts, and the London Packet. The printers of the first two Papers were proceeded against on the 8th of February
1771 ; and steps were taken against the others on the 13th of the following March. The excitement caused by this battle between the Parliament and the press raised the sale of all, and gave the people an impressive
idea of the power of this rising Fourth Estate, and of its value as a bulwark of popular liberty.
Thischapterisheaded with the titles of a Newspaper of 1688 and one of 1788. The Orange Intelligencer started in the year of the Revolution. The first number of The Times appeared exactly a hundred years after wards, and they may therefore well stand as two boundary marks, indicating the extremes of a century of News paper history. Let us see what that century had done for such publications. The Intelligencer, though set up at a time of political importance, and of increased liberty, was small in size and meagre in contents. It appeared only twice a-week, and consisted of two pages, that is to say, one leaf of paper about the size of Charles Knight's Penny Magazine, but containing a smaller quantity of matter than two pages of that publication. As a specimen of the contents of these
Newspapers, let us examine the Universal Intelligencer
THE FIRST DAILY PAPER.
245
of December 11, 1688. Itboasts two advertisements; a small paragraph amongst its News describes the seizing of Jefferies, in his attempt to escape from the anger of his enemies ; besides this interesting morsel of intelligence, the Paper has sixteen lines of News from Ireland, and eight lines from Scotland; whilst under its News of England, we have not very much more. One of the items tells us, that " on the 7th inst. the Prince of Orange supt at the Bear Inn, Hungerford. " There are other headings, such as "Forrain News" and "Domestick News," but the whole affair is meagre. In the hundred years between this Paper and number one of The Times, the Journalists had had much schooling. We have seen what men
of talent had contributed to the political disscussions of the period, and have noted, moreover, some of the persecutions to which Journalists had been subjected. * When the public required a daily Paper, a daily Paper was produced, and, appearing more frequently, it gave of course a more complete account of the world's
but how far did that account extend? The first number of The Daily Courant consists of
one page of paper, something taller than the Penny Magazine ; one side of which only is printed upon, the other being blank. The whole matter it contains
* Another instance may be mentioned here. In 1711, Mr. Secretary St. John committed to Newgate fourteen editors, printers, and pub lishers ; and, amongst them, the conductors of The Protestant Postboy, The Flying Post, and The Medley. One of the victims was Ridpath, who, in addition to his sufferings from the power of Bolingbroke, and the virulence of Swift, came" in for the ridicule of Pope, who gives him a line in the Dunciad. — To dullness Ridpath is as dear as Mist. " This Mist was the printer of another Newspaper which bore his name.
proceedings;
246 THE FOURTH ESTATE.
would scarcely fill a column of one of our present
morning Journals. The imprint is, " London :
let, next door to the King's Arms Tavern, at Fleet Bridge. " The News of the first number is all from abroad ; and the editor takes credit for unusual impar tiality, when he states that he intends always to quote the title of the foreign Papers from which he may extract News. Subsequent sheets contain home facts. By 1724, many other Papers had taken the field ; and in that year we find, by a list laid before Viscount Townsend, in which the politics of the Papers were indicated, the following entered as " well-affected to King George :—Buckley, Amen Corner, the worthy printer of the Gazette; Matthew Jenour, Giltspur Street, printer of The Flying Post ; Leach, Old Bailey, of the Postman ; Parker, Salisbury Street, Halfpenny Post ; Read, Whitefriars, Halfpenny Post and Weekly Journal ; Wilkins, Little Britain, Whitehall Evening Post, and Whitehall and London Journal. "
As time progressed, the Papers increased in size as well as number. Four pages of type began to be given ; and, in the files at the British Museum, we find, amongst a crowd of by-gone names, many familar titles. There are Posts, and Heralds, and Chronicles, and Advertisers. Post and Advertiser seem to have long beenfavourite headings for Papers—the first doubtless, from the custom of preparing News for the post-bags ; the other when advertisements required circulation, and became a source of income to Newspapers. There
were Daily Posts and Evening Posts, * St. James's
* Holcroft found an editor of a Newspaper —The Whitehall Even ing Post—who so far approved of his essays as to pay five shillings a
E. Mal
FIRST NUMBER OF " THE TIMES. "
247
Posts, Whitehall Posts, Daily Advertisers, General Advertisers, Public Advertisers,* Universal Adver tisers, and Morning Advertisers. One facetious jour nalist headed his Paper, " All Alive and Merry, or The London Daily Post; "—probably his enemies had raised the false rumour that he was defunct, and he took this mode of displaying their mistake. Some what later, Journals, Ledgers, Gazetteers, Mercury's, Heralds, and Registers appear in the list, and when the hundred years from number one of the Orange Intel ligencer is complete comes number one of The Times.
The first number of The Times is dated January, 1788; the heading being, "The Times, or " Daily Universal Register, printed logographically. Its price is marked threepence, and its imprint runs, "Printed for J. Walter at the Logographic Press,
House Square, near Apothecaries' Hall, Blackfriars, where Advertisements, Essays, Letters, and Articles of Intelligence will be taken in. Also at Mr. Metteneus's, confectioner, Charing Cross; Mr. White- eavese's, watchmaker, No. 30, opposite St. Dunstan's Church, Fleet Street; Mr. Axtell's No. 1, Finch Lane, Cornhill; at Mr. Bushby's, No. 1, Catherine Street, Strand; Mr. Rose's, silk-dyer, Spring Gardens; and Mr. Grives's, stationer, No. 103, corner of Fountain Court, Strand. " In appearance, size, and contents, the first number of The Times shows the great advance which a century had enabled the Newspapers to make.
column for them. One of these productions was copied into The Annual Register. —Hazlitt's Life of Holcroft.
* Some further reference to the Paper of "Junius" Woodfall will be found in the chapter on London Morning Papers.
Printing
248 THE FOURTH ESTATE.
Compared with the first number of The Intelligencer of 1 688, the number one of the new journal, The Times of 1 788, is a giant. It con tains certainly ten times as much
matter; it has four pages, each of four columns some what smaller than The Globe or Standard now present; it has sixty- three advertisements, amongstwhich are an nouncements of a play, with Kemble and Mrs. Siddons, at Drury Lane; of a concert, by his Majesty's command, " at the concert room in Tottenham Court Road;" and of lottery tickets to be had at offices open for the sale of those then attractive documents. Mr. Walter also had many naval and other Government advertisements. In the columns of this infant number of a Journal now so famous in the world, there is foreign as well as home intelligence; poetry ; shipping news ; and paragraphs of gossip, some of them rather doubtful in character. In the prospectus or address to the readers of the candidate for public support, is explained that The
Times was a title assumed as better adapted to the
Paper than the heading by which it had previously been known ; for The Times was a continuation of The London Daily Universal Register, started on the 13 th of January, 1785, of which more will be found in the chapter on the London Daily Papers. The Times came into a field already well occupied by the Morn ing Herald, Chronicle, Post, and Advertiser ; but enough has been said, in the present place, to in dicate the advances made during a century by the Newspaper press. During this period it had been courted by ministers, been employed by politicians, had come triumphantly out of a contest with Parliament,
whilst other victories had earned the praises of a poet ;
cowper's newspaper sketch.
249
for does not Cowper—who shrunk so sensitively from a world which he was nevertheless anxious to hear of and able to instruct —does not Cowper sing: —
This folio of four pages, happy work,
Which not e'en critics criticise. *#•*
What is it but a map of busy life,
Its fluctuations and its vast concerns ?
Here runs the mountainous and craggy ridge
That tempts ambition. On the summit see
The seals of office glitter in his eyes ;
He climbs, he pants, he grasps them. At his heels, Close at his heels a demagogue ascends,
And with a dexterous jerk soon twists him down, And wins them, but to lose them in his turn.
Here rills of oily eloquence in soft
Meanders lubricate the course they take ;
The modest speaker is ashamed and grieved,
To engross a moment's notice ; and yet begs,
Begs a propitious ear for his poor thoughts, However trivial all that he conceives.
Sweet bashfulness ! it claims at least this praise ;
The dearth of information and good sense, That it foretells us, always comes to pass. Cataracts of declamation thunder here ;
There forests of no meaning spread the page, In which all comprehension wanders lost ; While fields of pleasantry amuse us there With merry descants on a nation's woes.
The rest appears a wilderness of strange
But gay confusion ; roses for the cheeks,
And lilies for the brows of faded age ;
Teeth for the toothless, ringlets for the bald, Heaven, earth, and ocean plundered of their sweets, Nectareous essences, Olympian dews,
Sermons and city-feasts, and favourite airs, Ethereal journeys, submarine exploits,
THE FOURTH ESTATE.
And Katerfelto, with his hair on end,
At his own wonders, wondering for his bread.
'T is pleasant from the loopholes of retreat To peep at such a world; to see the stir
Of the great Babel, and not feel the crowd ;
To hear the roar she sends through all her gates At a safe distance, where the dying sound
Falls a soft murmur on the uninjured ear.
Thus sitting, and surveying thus at ease
The globe and its concerns, I seem advanced
To some secure and more than mortal height, That liberates and exempts me from them all. It turns submitted to my view, turns round
I behold
The tumult and am still. The sound of war
With all its generations ;
Has lost its terrors ere it reaches me ;
Grieves but alarms me not. I mourn the pride And avarice, that make man wolf to man ; Hear the faint echo of those brazen throats,
By which he speaks the language of the heart, And sigh, but never tremble at the sound,
He travels and expatiates, as the bee
From flower to flower, so he from land to land, The manners, customs, policy of all
Pay contribution to the store he gleans ;
He sucks intelligence in every clime,
And spreads the honey of his deep research
At his return— a rich repast for me.
He travels and I too. I tread his deck,
Ascend his topmast, through his peering eyes Discover countries, with a kindred heart Suffer his woes, and share in his escapes ; While fancy like the finger of a clock,
Runs the great circuit and is still at home.
CHAPTER VI.
NEWSPAPERS AND JOURNALISTS FROM 1788 TO 1800.
" The liberties of the press and the liberties of the people must stand or fall together. " —Hume.
The Press in the Reign of George the Third. —Numerous Laws and Prosecutions. — Statute on Libel. — Trial of Paine, and Speech of Erskine. — Sheridan. — Burke. — Crabbe. — Summary of Acts of Par liament. —Attempts to gag the Newspapers.
THE reign of George the Third was an eventful In the days of no previous monarch had so many laws been passed having refer
ence to the publication of News, nor had public writers ever before taken up so bold a position as the one they assumed during the life of the king who lost America and added several hundred millions to the national debt. When the revolutionary spirit roused America to a rebellion that eventuated in independence, the press was called upon to play an important part, and in spite of repressive enactments, public prosecutions, and heavy sentences when convictions were obtained, the doctrines of progressive reform and social ameli oration found expression in type, to the advancement of political knowledge amongst the people, and the improvement of our political institutions. The spread
THE FOURTH ESTATE.
of republican doctrines through the neighbouring country when its first revolutionary struggle began, gave a great impetus to political inquiry in England, nor was there any lack of pens ready to advocate doctrines very obnoxious to the existing authorities. A ready sale being found for such publications, their authors had a renewed stimulus for production, and when the law was called upon to punish the verbal rebellion, the honours of martyrdom were awarded to those who had already gained the profits of sedition. One hundred and fifty thousand copies of Paine's Rights of Man are said to have been sold in a mar vellously short time, whilst upwards of thirty thousand
impressions of Burke's reply found purchasers. This amount of attention given to two political combatants shows in itself the great interest taken by the public in the questions debated. Besides these two well-known partizans, a host of other writers came into the arena to claim the attention of the people, and to give discomfort to the government, —and amongst them were Mackintosh and Cobbett. Although each fresh law added to the bonds of the press, and crippled its operations by increasing the tax upon Newspapers, such publications continued to grow in numbers, size, and importance. A glance at the stated circulation
century will exhibit their rate of increase. The numbers in
of Papers during forty years of the eighteenth
1753 were 7,411,757; in 1760, 9,484,791; in 1790, 14,035,739 ; in 1791, 14,794,153; whilst in 1792 the number rose to 15,005,760.
Many prosecutions took place during the last quarter of the eighteenth century, and amongst those
ACTIONS FOR LIBEL. 253
who figured conspicuously as a defendant was Mr. Woodfall of the Public Advertiser. In 1776, that spirited journalist was sued for libel by Lord Chatham, but escaped conviction through a flaw in the proceed
In
ventured to print an expression of joy that Admiral Keppel, the companion of Anson, had triumphed over his enemies by securing an acquittal by court-martial, and for this Woodfall was tried, convicted, fined, and sentenced to twelve months imprisonment in Newgate. He also bore the brunt of actions byEdmundBurke and by Lord Loughborough.
The former had the modesty to lay his damages for a libel in the Public Advertiser at £5000 ; the jury gave £100. A similar case of difference of opinion arose in 1786, when Almon was proceeded against by Pitt for a libel in the General Advertiser. The minister estimated the damage done to his character at £10,000, a sum which was reduced in the verdict to £150. In the same year that Lord Chatham proceeded against Woodfall, the Newspapers in which notices of the Constitutional Society appeared felt the displeasure of the Government. On the 17th of December, 1776, J. Baldwin, J. Miller, J. Wilkie, and H. Randall, four Newspaper printers, were found guilty of publishing a letter from the Constitutional Society respecting the payment of £100 to Franklin — three of them were fined £100 each. All the printers who inserted an advertisement from the Constitutional Society, signed by Home (Tooke), were served with writs ; but Home being convicted and fined, the affair dropped as regards the Newspapers.
Whilst the case of Warren Hastings was before
ings.
1 779, Woodfall was less fortunate. He
254 THE FOURTH ESTATE.
Parliament, the Newspapers came in for a share of the attention and the anger of the House of Commons. Mr. Markham, a member of that body, called attention to a paragraph in a public journal, in which it was said, " that the trial of Mr. Hastings was to be put off for another sessions unless the House of Lords had spirit
to put an end to so shameful a business. " " After some remarks," says the Annual Register,* "upon the scandalous licentiousness of the press, a motion was made and carried unanimously, for pro secuting the printer of the Paper. In the course of the conversation which this motion gave rise to, Mr. Burke read from one of the public Prints a curious paper, purporting to be a bill of charges made by the editor upon Major Scott, for sundry articles inserted in the Paper on his account. They chiefly consisted of speeches, letters, paragraphs composed by him, and amongst the rest was this item, ' For attacking the veracity of Mr. Burke, 3s. 6d. ' "
When the Chancellor of the Exchequer, brought forward his financial statement in June, 1789, Mr. Pitt proposed to raise an additional hundred thousand a year by new taxes. He fixed on the stamp duties as most convenient for his purpose, and proposed to augment certain of them to secure the sum he wanted. First on his list came Newspapers, which he suggested should pay an additional halfpenny each, and from this source he anticipated an annual return of £28,000. His second tax was an additional six pence upon each advertisement, and the gain from this he estimated at . £9,000. Probates,
* Annual Register, Vol. XXXI. , p. 164.
enough
legacies,
THE ARGDS. 25r,
and horses, also came in for a share of the
carriages,
money-wanting minister's regard, and much opposition was expressed to the demand. Sheridan was amongst those who demanded inquiry into the real state of the national finances. After six years of peace, it was declared to be unreasonable and impolitic to ask for additional taxes. The wit, dramatist, and politician launched one of his brilliant speeches against the Government, and exhibited in very startling light the mismanagement and unsound state of the national
of finance. Grenville followed Sheridan, to repair, by his advocacy of the Government scheme, the injury which the opposition speech had done but the upshot of the debate was the old story of strong majority, and the new taxes on Newspapers were voted by the House.
Sampson Perry, printer of The Argus, was found guilty, December 10, 1792, in the Court of Queen's Bench, of publishing libel on the House of Commons, in stating, " the House of Commons were not the real representatives of the people. " A reward of £100 was offered for Perry's apprehension. The title of Argus had more than once borne ill-repute. Shortly before this period, one Lewis Goldsmith, an English Jew and notary, had attracted persecution by publication called Crimes of Cabinets. To escape the consequences of sentence for libel and sedition, he fled to France, and there edited Paper called The Argus, with funds supplied by the French Minister of Foreign Affairs. In this he fiercely attacked everything English.
Getting information of police plot for delivering him up to the British authorities, he contrived,
system
it is
a
it,
a a
a
a
a
2. 30 THE FOURTH ESTATE.
said, to make terms for himself, and returned to this country, where he underwent the form of a trial for
treason, and was discharged ; whereupon he began a weekly Paper called the Anti-Gallican Monitor, in which he assailed Bonaparte most virulently, and continued to do so till Louis XVIII. was restored, when that monarch, it is stated, rewarded this venal writer with a large gratuity and a pension.
A most important change in the law was effected in 1792. In that year* an act was passed to remove doubts respecting the functions of juries in cases of libel, by which the law was declared to be, that on the trial of an indictment for a libel, the jury may give a general verdict upon the whole matter put in issue, and shall not be required by the court to find the
defendant guilty merely on proof of the publication, and of the sense ascribed to it in the information — the judges giving their opinion and directions on the matter at issue as in other criminal cases. This enactment, so influential in most trials where the liberty of the press is concerned, draws from Mr. Hallam the following remarks :—" The liberty of the press," says the writer of the Constitutional History, " consists, in a strict sense, merely in an exemption
from the superintendence of a licenser. But it cannot be said to exist in any security, or sufficiently for its principal ends, where discussions of a political or religious nature, whether general or particular, are restrained by too narrow and severe limitations. The law of libel has always been indefinite; an evil pro bably beyond any complete remedy, but which evidently
* 32 Geo. III. , c. 60.
THE LAW OF LIBEL. 257
renders the liberty of free discussion rather more precarious in its exercise than might be wished. It appears to have been the received doctrine in West minster Hall before the Revolution, that no man might publish a writing reflecting on the Government, nor upon the character, or even capacity and fitness, of any one employed in it. Nothing having passed to change the law, the law remained as before. Hence, in the case of Tutchin, it is laid down by Holt, that to possess the people with an ill opinion of the Go vernment, that is, of the Ministry, is a libel. And the Attorney General, in his speech for the prosecution, urges, that there can be no reflection on those that are in office under Her Majesty, but it must cast some reflection on the Queen who employs them. Yet, in this case, the censure upon the Administration, in the passages selected for prosecution, was merely general, and without reference to any person, upon which the counsel for Tutchin vainly relied. *
" It is manifest that such a doctrine was irreconcil able with the interests of any party out of power, whose best hope to regain it is commonly by prepossessing the nation with a bad opinion of their adversaries. Nor would it have been possible for any Ministry to stop the torrent of a free press, under the secret guidance of a powerful faction, by a few indictments
* State Trials, XIV. 1103. — 1128. Mr. Justice Powell told the Rev. Mr. Stephens, in passing sentence on him for a libel on Harley and Marlborough, that to traduce the Queen's Ministers was a reflec tion on the Queen herself. It is said, however, that this and other prosecutions were generally blamed, for the public feeling was strong in favour of the liberty of the press. Beyer's Right of Queen Anne, p. 286, quoted by Hallam.
VOL. I. K
258 THE FOURTH ESTATE.
for libel. They found it generally more expedient and more agreeable to borrow weapons from the same armoury, and retaliate with unsparing invective and calumny. This was first practised (first, I mean, with the avowed countenance of Government) by Swift in the Examiner, and some of his other writings. And both parties soon went such lengths in this warfare, that it became tacitly understood that the public characters of statesmen, and the measures of admini strations, are the fair topics of pretty severe attack. Less than this, indeed, would not have contented the political temper of the nation, gradually and without intermission becoming more democratical, and more capable, as well as more accustomed, to judge of its general interests, and of those to whom they were intrusted. The just limit between political and private censure has been far better drawn in these later times, licentious as we still may justly deem the press, than in an age when courts of justice had not deigned to acknowledge, as they do at the present, its theoretical liberty. No writer, except of the most broken repu tation, would venture at this day on the malignant calumnies of Swift. - - "Meanwhile the judges naturally adhered to their established doctrine, and, in pro secutions for political libels, were very little inclined to favour what they deemed the presumption, if not the licentiousness, of the press. They advanced a little farther than their predecessors ; and, contrary to the
practice both before and after the Revolution, laid it down at length as an absolute principle, that falsehood, though always alleged in the indictment, was not essential to the guilt of the libel, refusing to admit its
THE LAW OF LIBEL. 259
truth to be pleaded, or even given in evidence, or even urged by way of mitigation of punishment. * But as the defendant could only be convicted by the verdict of a jury, and jurors both partook of thegeneral sentiment in favour of free discussion, and might in certain cases have acquired some prepossessions as to the real truth
of the supposed libel, which the court's refusal to enter upon it could not remove, they were often reluctant to find a verdict of guilty; and hence arose, by degrees, a sort of contention, which sometimes showed itself upon trials, and divided both the profession of the law and the general public. The judges and lawyers, for the most part, maintained that the province of the jury was only to determine the fact of publication, and
also whether what are called the innuendoes were properly filled up, that whether the libel meant that which was alleged in the indictment to mean, not whether such meaning were criminal or innocent,
question of law which the court were exclusively com petent to decide. That the jury might acquit at their
was undeniable; but was asserted that they would do so in violation of their oaths and duty,
they should reject the opinion of the judge by whom they were to be guided as to the general law. Others
Pemberton permitted evidence to be given as to the truth of an alleged libel, in protesting that Sir Edmondbury Godfrey had murdered himself. And what may be reckoned more important, in trial of the famous Fuller on similar charge, Holt repeatedly (not less than five times) offered to let him prove the truth he could. State Trials,
XTV. , 534. But on the trial of Franklin, in 1731, for publishing libel in The Craftsman, Lord Raymond positively refused to admit of any evidence to prove the matters to be true and said he was only abiding by what had been formerly done in other cases of the like nature. —Id. , XVII. , 659.
E
pleasure,
2
a
if ;
it
a
a
if *
a
it
is,
260 THE FOURTH ESTATE.
of great name in our jurisprudence, and the majority of the public at large, conceiving that this would throw the liberty of the press altogether into the hands of the judges, maintained that the jury had a strict right to take the whole matter into their consider ation, and determine the defendant's criminality or innocence according to the nature and circumstances of the publication. This controversy was settled by Fox's libel bill in 1792. It declares the right of the jury to find a general verdict upon the whole matter; and though, from causes easy to explain, it is not drawn in the most intelligible and consistent manner, was certainly designed to turn the defendant's inten tion, as it might be laudable or innocent, seditious or malignant, into a matter of fact for their inquiry and decision. "
On the 25th of May, 1792, a royal proclamation
seditious writings was brought before the notice of the House of Commons, when Mr. Grey, afterwards the hero of Parliamentary Reform, spoke warmly against the spirit of this attempt to check the free expression of thought. He said he scarcely knew how to express himself upon because he hardly could distinguish whether the sentiments which
birth to were more impotent or malicious. He declared that the efforts of the Association of the Friends of the People had alarmed the Ministers, who had concerted this measure for the purpose of insidi
against
those who had been united. He said the means to be adopted were disgraceful. The King's officers, his magistrates, "were to make diligent inquiry in order to discover the authors and publishers
ously separating
gave
it
it,
GEORGE III. 'S PROSECUTIONS. 261
of wicked and seditious writings ;" the real meaning of which was, that a system of espionage was to take place by order of the Crown. The very idea was surprising as well as odious, that a proclamation should issue from the Sovereign of a free people commanding such a system to be supported by spies and informers. But the arguments of the friends of liberty were ineffectual ; for never, in the whole course of English history, were so many prosecutions instituted against
writers, printers, and publishers, as during the reign of the King who issued this proclamation, that called forth the eloquent denunciation of Grey ; and never, perhaps, did any monarch find a more able and willing legal functionary, to promote a crusade
the press, than George III. found in Scott, afterwards Lord Eldon. During"a debate, in 1795, this indefatigable lawyer said, the House should remember, that there had been more prosecutions for libel within the last two years than there had been for twenty years before. " He evidently prided himself on the efforts taken to subdue the press, and from the day when he uttered the expression, till the end of the century, no relaxation of the powers of persecution were visible.
In 1792, all the authorities and arguments for liberty of the press were placed in array before the public, at a time when great attention was drawn to the subject by the political circumstances of the time. The French Revolution was in full force ; and an
Englishman, Thomas Paine, had been elected to a
seat in the republican assembly then sitting in Paris. Before he left London, to assume his new dignity, he
against
2C2 THE FOURTH ESTATE.
had published his well-known attack on monarchical government, under the title of the " Rights of Man. " It sold in all directions, and the Government deemed it prudent to institute a prosecution against the author, though he was beyond their reach. They, accordingly, proceeded by information in the King's Bench, and the case came on for trial on the 18th of December, 1792. The lawyers engaged in this case were all notable men, and amongst those for the prosecution were the future Lord Chancellor Eldon, then Sir
James Scott, Macdonald, and Wood, both afterwards
and the Hon. Spencer Percival, who was junior on the occasion. Five counsel appeared for the defence, and amongst them stood Erskine, who, by his address to the jury in favour of freedom of the
press, added another to his many previous oratorical triumphs. The trial come on at Guildhall, before Lord Kenyon; and Attorney General Macdonald having opened his case, and put in evidence letters from Paine acknowledging the authorship of the book, Erskine addressed himself to the defence. After referring to some preliminary points, he declared that the cause resolved itself into a question of the deepest interest to all — the nature and extent of the liberty of the English press. That there might be no mis understanding, he began by declaring himself a friend to monarchy and the English constitution, but prepared to defend his client upon principles not only consistent with the permanence and security of that constitution, but without which it could never have had an existence. The proposition he declared himself prepared to maintain as the basis of the
judges,
THE TRIAL OF PAINE. 2G3
liberty of the press was, " That every man not intend ing to mislead, but seeking to enlighten others with what his own reason and conscience, however errone
ously, had dictated to him as truth, may address
himself to the universal reason of a whole nation,
either upon the subject of government in general, or upon that of our own particular country ; — that he may analyze the principles of its constitution,—point out its errors and defects, — examine and publish its corruptions, —warn his fellow-citizens against their ruinous consequences, —and exert his whole faculties in pointing out the most advantageous changes in establishments which he considers to be radically de fective or sliding from their object by abuse. All this every subject of this country has a right to do, if he contemplates only what he thinks would be for its advantage, and but seeks to change the public mind by the conviction which flows from reasonings dictated
by conscience.
" If, indeed, he writes what he does not think ;—
contemplating the misery of others, he wickedly con demns what his own understanding approves —or, even admitting his real disgust against the Government
or its corruptions, he calumniates living magistrates, —or holds out to individuals, that they have right to run before the public mind in their conduct, —that
the public will, because they honestly wish to change —he then criminal upon every principle of
rational policy, as well as upon the immemorial pre
they may oppose by contumacy
reason only disapproves, —that they may disobey the law. because their judgment condemns — or resist
or force what private
it is
a
if
it,
a
;
if,
201 THE FOURTH ESTATE.
cedents of English justice ; because such a person seeks to disunite individuals from their duty to the whole, and excites to overt acts of misconduct in a part of the community, instead of endeavouring to change, by the impulse of reason, that universal assent which, in this, and in every country, constitutes the law
for all.
" Let me not be suspected to be contending, that it
is lawful to write a book pointing out defects in the English Government, and exciting individuals to des troy its sanctions, and to refuse obedience. But, on the other hand, I do contend that it is lawful to address the English nation on these momentous sub
jects; for, had it not been for this unalienable right, thanks be to God and our fathers for establishing it ! how should we have had this constitution which we so loudly boast of? If, in the march of the human mind, no man could have gone before the establish ments of the time he lived in, how could our establish ment, by reiterated changes, have become what it is ?
—if no man could have awakened the public mind to errors and abuses in our Government, how could it have passed on from stage to stage, through reformation and revolution, so as to have arrived from barbarism to such a pitch of happiness and perfection, that the Attorney General considers it as profanation to touch it farther, or to look for any future amendment ?
" In this manner power has reasoned in every age : —Government, in its own estimation, has been at all times a system of perfection; but a free press has ex amined and detected its errors, and the people have from time to time reformed them. This freedom has
erskine's speech. 266
alone made our Government what it is ; this freedom alone can preserve it. "
After an able argument, to show that his client was justified in the line of reasoning adopted in the book
that was the subject of prosecution, Erskine reminded the jury of the then recent change in the law that gave them greater power in such cases. "Although" said he, "my arguments upon the liberty of the press may
not to-day be honoured with your or the court's ap probation, I shall retire not at all disheartened, con soling myself with the reflection that a season may arrive for their reception. The most essential liberties of mankind have been but slowly and gradually received ; and so very late, indeed, do some of them
come to maturity, that, notwithstanding the Attorney General tells you that the very question I am now agitating is most peculiarly for your consideration, as a jury, under our ancient constitution, yet I must remind both you and him that your jurisdiction to consider and deal with it at all in judgment is but a year old. Before that late period, I ventured to
maintain this very right of a jury over the ques tion of libel under the same ancient constitution (I do not mean before the noble judge now present, for the matter was gone to rest in the courts long before he came to sit where he does, but) before a noble and reverend magistrate of the most exalted understanding, and of the most uncorrupted integrity :* he treated me
not with contempt, indeed, for of that his nature was incapable ; but he put me aside with indulgence, as you do a child while it is lisping its prattle out of season ;
* Earl of Mansfield.
liGG THE FOURTH ESTATE.
and if this cause had been tried then, instead of now, the defendant must have been instantly convicted on the proof of the publication, Iwhatever you might have
have lived to see it re solved, by an almost unanimoIus vote of the whole
"Gentlemen, I have insisted, at great length, upon the origin of governments, and detailed the authori ties which you have heard upon the subject, because I consider it to be not only an essential support, but the very foundation of the liberty of the press. If Mr. Burke be right in his principles of government, I admit that the press, in my sense of its freedom, ought not to be free, nor free in any sense at all; and that all addresses to the people upon the subject of government, and all speculations of amendment, of what kind or nature soever, are illegal and criminal ; —since, if the people have, without possible recall, delegated all their authorities, they have no jurisdiction to act, and therefore none to think and write upon such subjects; and it would be a libel to arraign Government or any of its acts before those that have no jurisdiction to correct them. But, on the other hand, as it is a settled rule in the law of England that the subject may always address a competent
jurisdiction, no legal argument can shake the freedom of the press in my sense of am supported in my doctrines concerning the great unalienable right of the people to reform or to change their go vernments.
thought of his case. Yet
Parliament of England, that
the right. If this be not an awful lesson of caution concerning opinions, where are such lessons to be read?
had all been in along
it,
if I
erskine's speech. 207
"It is because the liberty of the press resolves itself into this great issue, that it has been, in every country, the last liberty which subjects have been able to wrest from power. Other liberties are held under governments, but the liberty of opinion keeps govern ments themselves in due subjection to their duties. This has produced the martyrdom of truth in every age, and the world has been only purged from ignorance with the innocent blood of those who have enlightened it.
"Gentlemen, my strength and time are wasted, and I can only make this melancholy history pass like a shadow before you.
" I shall begin with the grand type and example.
" The universal God of nature, —the Saviour of mankind,—the fountain of all light, who came to pluck the world from eternal darkness, expired upon a cross,—the scoff of infidel scorn ; and his blessed apostles followed him in the train of martyrs. When he came in the flesh, he might have come like the Mahometan Prophet, as a powerful sovereign, and propagated his religion with an unconquerable sword, which even now, after the lapse of ages, is but slowly advancing, under the influence of reason, over the face of the earth ; but such a process would have been inconsistent with his mission, which was to confound the pride, and to establish the universal rights of men ;—he came therefore in that lowly state which is represented in the Gospel, and preached his consola tions to the poor.
"When the foundation of this religion was dis covered to be invulnerable and immortal, we find
2GS THE FOURTH ESTATE.
political power taking the church into partnership ;— thus began the corruptions both of religion and civil power, and, hand-in-hand together, what havoc have they not made in the world ! —ruling by ignorance and the persecution of truth : but this very persecution only hastened the revival of letters and liberty. Nay, you will find, that in the exact proportion that know ledge and learning have been beat down and fettered,
they have destroyed the governments which bound them. The court of Star Chamber, the first restriction of the press of England, was erected previous to all the great changes in the constitution. From that moment no man could legally write without an impri matur from the state ;—but truth and freedom found their way with greater force through secret channels ; and the unhappy Charles, unwarned by a free press, was brought to an ignominious death. When men can freely communicate their thoughts and their sufferings, real or imaginary, their passions spend themselves in air, like gunpowder scattered upon the surface; but pent up by terrors, they work unseen, burst forth in a moment, and destroy every thing in their course. Let reason be opposed to reason, and argu ment to argument, and every good government will be safe.
" The usurper, Cromwell, pursued the same system of restraint in support of his government, and the end
of it speedily followed. II. , Star Cham "At the Restoration of Charles the
ber ordinance of 1637 was worked up into an act of Parliament, and was followed up during that reign, and the short one that followed the most sanguinary
it, by
ANECDOTE OF CROMWELL. 269
but what fact in history is more no torious, than that this blind and contemptible policy prepared and hastened the Revolution ? At that great
era these cobwebs were all brushed away :—the freedom of the press was regenerated, and the country, ruled by its affections, has since enjoyed a century of tranquillity and glory. Thus I have maintained, by English history, that, in proportion as the press has been free, English government has been secure. "
Erskine then went on to quote the authority of Milton, Hume, and others, who had argued for the liberty of the press, and in the course of his eloquent harangue, told the story of Harrington's Oceana and
Cromwell. " The Oceana was seized by the Usurper as a libel, and the way it was recovered is remarkable. I mention it to show that Cromwell was a wise man in himself, and knew on what governments must stand for their support. Harrington waited on the Protector's daughter to beg for his book, which her father had taken, and on entering her apartment, snatched up her child and ran away. On her following him with surprise and terror, he turned to her and said, ' I know what you feel as a mother, feel then for me ; your father has got my child :' meaning the Oceana. The Oceana was afterwards restored on her petition : Cromwell answering with the sagacity of a sound politician, ' Let him have his book ; if my go vernment is made to stand, it has nothing to fear from paper shot. ' "
Erskine thus wound up his address : — " Engage the people by their affections, —convince their reason, —and they will be loyal from the only principle that
persecutions;
270 THE FOL'RTH ESTATE.
can make loyalty sincere, vigorous, or rational,—a conviction that it is their truest interest, and that their government is for their good. Constraint is the natural parent of resistance, and a pregnant proof that reason is not on the side of those who use it. You must all remember Lucian's pleasant story : Jupiter and a countryman were walking together conversing with great freedom and familiarity upon the subject of heaven and earth. The countryman listened with attention and acquiescence, while Jupiter strove only to convince him ; but happening to hint a doubt, Jupiter turned hastily round, and threatened him with his thunder. ' Ah ! ah ! ' says the country man, ' now, Jupiter, I know that you are wrong ; you are always wrong when you appeal to your thunder. ' This is the case with me—I can reason with the people of England, but I cannot fight against the thunder of authority. Gentlemen, this is my defence for free opinions. "
But the eloquence of the advocate, the arguments of the scholar and the politician, availed nothing with the jury on whom they were employed. A verdict of guilty was returned the minute Erskine concluded his address ; but his speech, thanks to short-hand, remains to us, and has often since been quoted, when the liberty of the press he argued for, has been as sailed.
Several other trials took place about this time, at the instance of the Attorney General, but verdJicts were
not always obtained by the Government.
uries, at times, availed themselves of the power given by the new libel law, and the legal proceedings, taken with a
BURKE AND CRABBE.
271
view to the suppression of the doctrines of the reform ers, had had the effect of increasing the popular appetite for political inquiry. Whilst Paine was regarded as a great authority on one side, Burke was
champion on the other. The great orator seems to have been assailed with much unfair abuse, and his friends did not fail to retort when opportunity offered. Burke's kindness to Crabbe apparently induced the latter to take up a pen against the Journals which
had attacked his patron.
