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BOOK XII. fulfilment of the eighth article of the constitutional charter. The press has rendered such great serCHAP. VIII. vices to society, it is become of such necessity among civilized nations, that it ought not to be subjected to rigorous restrictions. The king, gentlemen, is not less interested than his subjects in seeing the revival of these services; it is his interest to hear the truth, as it is yours to tell it to bim; but it is truth friendly to order, which wisdom always inspires, which calms instead of irritating the passions, and which teaches the people equally to dread oppression and licentiousness. "The question is simple in itself. The object is so to consecrate the liberty of the press, as to render it useful and durable. That liberty so often proclaimed in France during the first years of the revolution, became its own greatest enemy. The slave of popular opinion, which it had not time to form, it lent to licentiousness all its force, and could never supply reason with sufficient means of defence. The causes of this existed in the effervescence of the popular passions, in the nation being little accustomed to public affairs, in the facility with which a people were deceived and deluded, still incapable of judging of the writings addressed to them, and of foreseeing their consequences.

"Have these causes now disappeared? Can we flatter ourselves that they will not again come into action? We fear that we cannot: the mute servitude which succeeded the turbulence of the first years of the revolution has not better trained us for liberty: the passions which could not display themselves during that interval would now burst forth, fortified by new passions.What should we oppose to their explosion? Almost as much inexperience, and more of weakness. Reasonable men, disgusted with the long inutility of their efforts, would keep in the back ground, rather than expose themselves in a contest of which they had so often been the victims; interests the most opposite, and sentiments the most exaggerated, would again come into mutual combat, with all that additional violence which would be lent by the bitterness of recollections; the people still unenlightened as to their interests, still unconfirmed in their sentiments, would follow blindly the impulse which might be given them; and, whichever might be the victorious party, it would soon take exclusive possession of the press, to turn it against its adversaries.

"Such is the nature of that liberty, which must have been enjoyed in order to know how to use it: give it all the extent necessary to the nation's learning how to benefit by it; but oppose to it some bounds, that it may be saved from its own excesses."

With regard to the principal provision of the law M. de Montesquieu spoke thus:

"It has been long perceived and acknow

ledged, that writings of small bulk, which it is easy to circulate with profusion, and which are read with avidity, may immediately disturb the public tranquillity; repressive laws are insufficient against the effects for which the author, perhaps, can only be punished when the mischief has already become too great, not merely to be repaired, but even arrested in its ed, but even arrested in its progress. Writings of this sort are, therefore, the only ones against which the law takes precautions beforehand. Every work of ordinary size may be published freely; the king and the nation will have nothing to fear from them; and if the author commit any offence, the tribunals will be in readiness to punish him."

After explaining the other parts of the law, the abbé concluded thus:

"If we lived at a period when reason, long trained and tried, had a stronger sway than that of the passions; when national interest clearly understood and strongly felt, had attached to its cause the majority of private interest; when public order, strongly consolidated, no longer feared the attacks of imprudence or folly; then the unlimited liberty of the press would be unattended with danger, and would even present advantages: but our situation is not so happy: our character even, as well as our situation, forbids the establishment of an indefinite liberty. Nature has distributed her gifts among nations as among individuals; the diversity of the institutions has fortified these primitive differences: we have received for our share a vivacity, a mobility of imagination, which require restraint: let us not complain of this; let us not envy a neighbouring nation the enjoyment of advantages of another kind. Ours have procured us enough of happiness and glory wherewithal to be content: to them we owe that elegance of taste, that delicacy of manners, which is shocked by the least neglect of decorum, and which does not permit us to violate it, without falling at once into the most unbridled licentiousness.

"The king proposes to you nothing that does not appear to him absolutely necessary to the safety of the national institutions, and to the march of government: assist him with your information and your influence; unite with bim for the interests of liberty as for those of peace; and you will soon see that liberty unfold itself without storms, amidst the order which you shall have concurred in maintaining."

The projet of the law proposed by the king was divided into two parts: the first respected the publication of works; the second, the superintendance of the press: according to the first, every work of above thirty sheets might be published freely, without previous examination or revision. The same liberty was to be given to all writings in the dead languages, or in foreign

languages: prayer-books, catechisms, &c.; lawreports, if they were sanctioned by the names of professional persons; and works of literary and scientific societies established by the king, whatever was the number of the sheets which they contained. The liberty which was apparently given in this part of the projet, was, however, in a great measure withdrawn by the proposal that the director-general of the press might ordain, according to circumstances, that all writings of thirty sheets or under should be communicated to him before being printed. The appointment of censors was to be vested in the king; and the director-general was to cause every work to be examined by one or more censors; and if two at least of these conceived the writing to be defamatory or dangerous, or immoral, the director-general might forbid the printing: he was, however, to be obliged to communicate all the works, or parts of works, suppressed by him, to a committee of both houses, consisting of three peers and three deputies, with three commissioners appointed by the king; and if the motives of the censors should appear insufficient, the committee might order the printing. No journals or periodical writings were to appear without the king's authority. In a country such as Britain, where the inhabitants derive all their knowledge of passing events from the journals, this part of the projet will appear as putting a most effectual barrier to the most essential and valuable part of the liberty of the press. The journals in this country are undoubtedly often mere party publications: they often mislead the public both with regard to the facts which they ought to believe, and the opinions of public men and measures which they ought to entertain; but there can be not the smallest doubt, that if it were not for our jouruals being entirely independent of the acknowledged and direct controul of government, our rulers would be much less cautious than they are in their conduct, and public opinion would have much less weight than it actually has. But there is no country in the world besides our own (with the exception of America) in which government does not interfere too much; to such a degree, indeed, as if they thought t he people were incapable of thinking or acting for themselves, or as if they were conscious that their own actions would not bear to be fairly represented and canvassed. In the last clause of that part of the projet which relates to the publication of works, it was proposed that the author and printer may, if they think poper, require the examination of the work previously to sending it to press; and if it should be approved, they are discharged from all further responsibility, excepting as to the claims of injured individuals.

If this part of the projet appears inimical to the liberty of the press, the other part is still more

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decidedly so: by the first regulation in it, no per- BOOK XII. son can be a printer or bookseller without the king's license, nor without taking the proper CHAP.VIII oaths; and the license might be withdrawn on violation of the laws or regulations. All the printing establishments not properly notified and permitted by the director-general of the press, were to be deemed clandestine, and as such were to be destroyed, and the proprietors subject to a fine of 10,000 franes and six months imprisonment. If notice was not given, and a deposit made of the copy of any work, the impression might be seized; and in such case a fine of 1,000 francs for the first offence and 2,000 for the second to be levied: if the printer's name and residence were omitted in the title-page of any copy of a work, there was to be a fine of 3,000 francs; and in the case of the substitution of a false name or address, a fine of double that sum, besides imprisonment. Every bookseller exposing to sale a work without a printer's name, to pay a fine of 2,000 francs, which was to be reduced to 1,000 upon disclosure of the name. The projet concluded with the proposal, that the law should be revised in three years, for the purpose of making the improvements which experience might show to be necessary.

It is scarcely necessary to point out the essential difference between the liberty of the press which this law proposed to establish in France, and that which we enjoy in Britain. It has been often complained, that the nature of the libel and law respecting it is very obscure and uncertain; and that the consequences are, that a person does not know whether what he publishes will expose him to the law or not. This certainly is the case; and the theory as well as the practice of our constitution would be much improved if libel were distinctly defined, so as that it could be known beforehand whether a publication was libellous or not. But even with this imperfection our law respecting the liberty of the press is infinitely preferable to that proposed and adopted in France this year; since in every respect the cause of truth, and the independence of character and mind of the people are much better secured, where every thing may be published, though the publication leads to danger, than where nothing can be published but what has met the approbation of censors of the press. In the first place, it must be better, as well as safer, to trust to the opinion of a jury of our countrymen (obscure as the law of libel is) than to the opinion of censors: secondly, the most despotic or timid government will be disposed to suffer many publications to go on, after they are once given to the world, which they would have suppressed had they possessed the means before they were printed. But the chief consideration in estimating the advantages of the two modes is, that in a country where

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BOOK XII. every work is permitted to be published, the public at large can judge whether, if punishment CHAP. VIII. be inflicted, that punishment is deserved; whereas, where publications are suppressed, the public cannot know whether the suppression takes place because they are beneficial to society and hurtful only to the ruling powers, or because they are really injurious to the community. In short, where free discussion is not permitted, there cannot be that controul of public opinion over governments which there ought to be, both for the real interests of the governors and the governed; nor can there exist in the public mind that calmness and comprehension with respect to their duties as well as their rights, which will always constitute the most effectual guard against sudden and violent revolutions.

By those who could see nothing wrong in the measures of Louis, it was contended that France was not fit for a greater share of the liberty of the press than what it was proposed to give her in this projet.

It was not to be expected, that a plan so restrictive of the effectual liberty of the press should be received with general concurrence. The projet of the law having been referred to a committee, they debated upon it; and when the report of the committee was brought up, (as we should term it in England,) the reporter, M. Raynouard, in the chamber of deputies, on the 1st of August, made a most eloquent speech in favor of the free and unrestrained right of publication. As this speech entered at considerable length into the arguments in support of the opinions of the speaker, we shall present our readers with an abstract of it.

After some general remarks, he observed, that in the year 1788 the parliament of Paris solicited the liberty of the press, "saving the right of repressing reprehensible works according to the exigency of the case." After the storms of many political revolutions, which have at least left the French the counsels of experience, and the lessons of calamity, Louis the Desired, recalled to the throne of his ancestors, has recognised the wish of the nation which demanded the liberty of the press, as one of the bases on which the social edifice was henceforward to rest. The king, on considering the plan which was proposed to him, pronounced, that one of the guarantees of the liberal constitution which he was resolved to adopt, shall be" The liberty of the press respected, saving the necessary precautions for the public tranquillity." The 8th article of the constitution in consequence declares, "The French have the right of publishing and printing their opinions, while conforming to the laws which must repress the abuses of that liberty." His majesty's minister for the interior had since presented the plan of a law on the subject, which he called

"The necessary complement of the article of our constitutional charter:" and it was in the careful examination of this plan that their committee had been long employed. He had now to deliver the report of that committee.

"The faculty of thought was the most noble which man had received from his creator: but it must remain imperfect, had he not also the power and the right of expressing his thoughts, either by fugitive sounds, or by permanent signs. To speak and to write, therefore, were only the exercise and developement of the same faculty, the use of a gift of nature. A charter may recognise and respect that right, but does not confer it. It comes from a loftier source.

"Before the invention of the art of printing, no law appears to have forbidden or embarrassed the multiplication and circulation of writings: the profession of copyist was, however, so common, it became easy to re-produce, in very great number, copies of a diatribe, or a satire. Since the invention of printing, that fortunate means of multiplying writings, requiring considerable mechanic apparatus, and the employment of workmen, the operations of the art remain under the eye and hand of the police; and because thus it became easy to stop the communication of thought, governments have thought that they could arrogate the right to do so. Booksellers also fearing competition, often obtained from popes, emperors, and different kings, exclusive privileges for the sale of works in their dominions.

"For a considerable period of time, books of all kinds circulated in France without the government thinking to subject them to any previous examination. Our ancestors certainly enjoyed the liberty of the press.

"Under the reign of Francis I. religious controversies beginning to disturb France, the parliament of Paris declared, that the faculty of theology of the university had the right of judging new books in regard to orthodoxy; but most commonly this examination did not take place till after publication. In 1554 this faculty published a list of the books which it had prohibited, and of which it was the duty of government to prevent the circulation, these books being printed.

"Almost all the theological books printed since the middle of the sixteenth century, contains the imprimatur of two doctors. As to other works, they were at that period rarely subjected to previous examination. Louis XIII., it is true, directed that the chancellor should examine all new books; but he granted the express privilege of exemption from censure to certain authors, whom he judged worthy of confidence. In 1699, Telemaque, a work which was supposed to contain: so many attacks upon authority, was printed at, Paris with the king's privilege. Twenty-four years afterwards, (i. e. in 1723) another produc

"In every country, however, where civil and political liberty is established on fundamental laws, the citizens ought necessarily to enjoy the liberty of the press, which is its first and surest guardian. The agents of authority always made it a sort of duty to extend and aggrandise the power of their master; they hoped thus to strengthen their own authority. This excess of devotedness always threatened the liberties of a nation. What, then, were the means of confirming them within the limits which the laws had prescribed? There was only one: it was prompt and effectual; it was the liberty of the press, which at once, without shock or danger, instructed both the monarch and the nation; which summoned before the tribunal of public opinion the errors of a minister, and the crimes of his agents, thus checking the mischief in the bud, and preventing the greater mischief of its consequences.

"We may be told that the assiduous zeal of the great bodies of the state will prevent the violation of public rights; but these bodies are not always assembled to exercise that useful vigilance. What s to be done during the recess of their sittings? How was a great injustice to be arrested before its consummation; or a pernicious measure before its execution? Was it not only by giving to just and wise reclamations that rapid publicity which denounced the danger both to the prince and the people?

"And even when the great bodies of the legislature were assembled, was it not by exercising the liberty of the press, that useful truths could be submitted to them? And if they acted unjustly or erroneously, what other hope remained of bringing tham back to sound principles?

"The charter subjects the ministers to responsibility; but if they can only be tried for great offences; if they are not otherwise responsible for their errors or acts of injustice, does it not become a matter of rigorous necessity that those errors and acts of injustice should be pointed out to the wisdom of the monarch, the investigation of the great bodies of the state, and the judgment of public opinion?

"And how, otherwise, can the citizens successfully exercise the right of petitioning? Are not petitions, on most occasions, the cry of citizens who complain of some act of injustice or some

to them of making themselves heard, of interest- BOOK XII. ing public opinion in their favor, and of enlightening the members of the legislature, who CHAP. VIII. must pronounce on their reclamations, if they could not disseminate them by means of printing? The liberty of the press is necessary to the beneficial use of the right of petitioning."

Having made these preliminary observations, M. Raynouard next proceeded to the discussion of the plan of the law presented by the minister. He quoted that part of it which went to establish a previous censorship appointed by the king, and by which, if in the opinion of two censors, a work contained any thing libellous, contrary to good morals, or the public tranquillity, its printing should be stayed: giving, at the same time, an appeal from the author to a committee of the two legislative bodies, who might, if they saw cause, reverse the decision.

The establishment of this previous censure excited alarm, and appeared to him incompatible with the liberty of the press, that right which was secured by the charter. The means also of repairing the injustice or error of the censors were equal illusory. Sometimes the whole recess of a session must expire before an author could exercise his right of complaint; and the stoppage of a work. ordered during one of our sessions, could not be decided upon till the opening of the next. What reparation, in the mean time, was the author to receive, whose work was unjustly delayed? None whatever; and yet it was often of great importance to the honor or the fortune of a citizen. that his work should appear at a certain determinate period. What punishment also was to be inflicted on the injustice of the censors? There was none. What guarantee could be found in their fear of being reprobated; for even if their decisions were reversed, what security was there for the condemnation being public? But were their acts of injustice even proclaimed and posted. up, still the spirit of party would easily console them for the public disapprobation. Besides, would it be difficult to mention administrations, where excess of zeal, though publicly discouraged by the heads of government, might yet be excused, and even rewarded in secret? Thus every thing in the establishment of a previous censorship. appeared equally unjust both in subtance and form.

The plan of the law, however, proposed exceptions. The 1st article allows the free-publication, viz. without previous censorship, of every work of more than thirty sheets, which form 430 pages in 8vo. or 720 in 12mo. The 2d article grants equal liberty to writings in dead or foreign. languages, to episcopal charges (mandemens), to memorials in law-suits by advocates, and to the memoirs of learned societies.

Here every one, doubtless, must remark the

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BOOK XII. their books and pamphlets in France, and find there that liberty of the press which was not proCHAP. VIII. mised to them; while the French, to whom the right has been secured by solemn charter, will 1814. nat enjoy the same favor! The work printed in German, without previous censure, whether at Strasburg, or in any of the departments where that language is vernacular, may circulate there, and yet cannot be translated into French without previous imprimatur! When some just and honorable exceptions were proposed, why not renew the ancient privilege which all academies had in France, not only of publishing their memoirs, but of authorising, by their approbation, the works of their own members, of the correspondents, and of the authors who were competitors for prizes!

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If, as the minister declared in his discourse, care was taken to exempt all writings whose authors afforded in their character and situation a sufficient guarantee," why was it not thought proper to extend to many others an exception made in favor of ecclesiastics and advocates? Would not members of the chamber of peers, or of deputies, counsellors of state, public functionaries, chief members of the university, of the chamber of commerce, and many others, be equally entitled to be included in the number of those who by their character or situation presented sufficient guarantee?

By article 9, journals and other periodical writings were not to appear without the sanction of the king. This article, so short and incomplete, was only the more alarming for the liberty of the press. It would have been proper to explain, whether it was only meant to apply to the establishment of future journals, or whether every morning the journalist would be obliged to deserve a sanction, "We should at least have learned how this sanction was to be obtained, or on what grounds it might be refused; whether censors or co-editors were to be appointed, and up to what point injurious both to public and private rights, those who shall have the direction of the journals may exclusively distribute praise and blame, or pass judgment on men and things, for the purpose of leading astray or putting down public opinion.

"By article 10," authors and printers may demand the previous examination of their works, and if approved, the author and printer are discharged from all responsibility, except towards private individuals who may be injured."

"What an alarming power does this confer on a couple of censors? In this way the most immoral book, works injurious to every public right or institution, outraging even the sacred person of the king himself, would be screened from all future enquiry? The author would be freed from all responsibility, because two censors may have

accorded their, perhaps, guilty approbation. But at what period, or in what country, have magistrates ever been prohibited to exercise the rights of public justice, notwithstanding the imprimatur of doctors or censors?

"The 22d article declaring, that the law shall be reviewed within three years, announces sufficiently that it is not meant to be a temporary but a definitive law; and, besides, it has appeared to many, that the period of revision was too distant. "These different motives, which have had more or less weight with the members of the committee, have determined them to declare unanimously, that the plan of the law, such as it has been proposed, cannot be adopted without some modifications. The question then arose, whether this plan was easily susceptible of amendments, by which it might be corrected, at the same time adopting its principal basis. That basis is previous censorship. On this question the committee decided by a mere majority of voices, that previous censorship ought not to serve as the basis of the law."

Here M. Raynouard recapitulated a variety of reasons that were urged by the partizans of previous censorship; such as, "that it was necessary to watch over and restrain agitators; that journals and pamphlets were the chief cause of our first calamities and civil troubles; that the same causes would produce similar effects; that the English, when circumstances required it, suspended even their habeas corpus act, and for a long time also the exercise of liberty of the press; that the law proposed was not meant to be perpetual," &c.

The

"It appeared, however," said M. Raynouard, "that these reasons were by no means sufficient to counterbalance those which demanded the rejection of the principle of previous censorship. Let the following observation," he said, " be present to you. The liberty of the press is necessary to the right of petition. The representative leaders assemble only at stated periods. liberty of the press can alone compensate the dangers of their absence. But a censorship, so far from ensuring this liberty, would menace its existence, and with it that of civil and political liberty. Should the censorship be given to the opponents of government? Would not this be prejudicial to the respect due to the monarch? Should it be given to the minister's discretion? Would not this be to abandon our free institutions, our check on the authorities, in short, to abandon all to his discretion?

"Nay, more, would not this be dangerous for ministers themselves? These principles are hard to be answered. But, then, we are brought to the peculiar circumstances of the time, and are told, that even if the censorship were contrary to the charter, it ought to exist for the objects of secure