CHAPTER I.

INTRODUCTION TO THIS DIVISION OF THE LAW ENTITULED "THE SECURITY OF THOUGHT, SPEECH, AND CHARACTER."

Natural tendency to indulge in free speech. The faculty of rational speech, which distinguishes man from the lower animals, keeps society together, and enables the individual to work out the purposes of life through all its varied circumstances and occupations. While speech is the medium of the thoughts, the manner in which the mind works, and in which the various passions, affections, and desires are communicated from one to another, lies altogether beyond the domain of the law. Governments in all stages of barbarism have feared and prohibited speech, because it is the vehicle of combination and resistance; but while life endures, no physical contrivance short of continuous torture has been found able to suppress it. Thought is too subtle a power to be baffled or invaded. How language grows from the rude signs and noises of savage life into a complex and varied scheme of sounds, indicative of all the phases of refined sentiment and emotion, may be a proper inquiry for philosophers. But by the time society has advanced to the stage when human occupations have become sufficiently subdivided to require the protection of the law, language has been gradually formed into a settled system of expression. The law accordingly, when it confronts this irrepressible tendency of mankind to give expression to all their sentiments, desires, and passions, finds it inevitable to search out some first principle, and that principle is none other than this, that Thought must, or ought to be, free, and Speech, being only

the vehicle of thought, must equally be free. It is seen to require no restriction, except in so far as its use may in certain times and situations interfere with the equal freedom of others in pursuing their varied avocations.

And yet this simple proposition, that thought and speech are free has been arrived at only after the painful experience of ages. Emperors, kings, parliaments, popes, and synods all began with the barbarous notion, that somehow free speech was a gift of their own to their subjects, and so must be accepted on their own conditions. Their first assumption was, that nobody should take the liberty to have any thoughts or opinions of his own, but must wait till some wise men of the time, or of the old time before them, should dictate to him the right thing to say, and even to think. The stubbornness of mankind constantly surged and resurged against this treatment, and innumerable martyrs were obliged to have their hands or tongues cut off, their bodies mangled and sawn asunder, or burnt alive, before the experiment was worked out, as to which of these two opposing forces was the master. Whether this conflict is yet at an end everywhere, some governments at least have long ago surrendered, being satisfied. that they have met with a force which they can neither conquer nor annihilate; and that at most they can only regulate its exercise to a very small extent. They have learnt that it is idle, impotent, and vain to continue the conflict longer on the old basis; and therefore they admit that the primary right of all men is to think and say what they like both about themselves and everybody else, and for this simple and all-sufficient reason, that no power known to mankind has been discovered strong enough to compel them to abstain. All that remains is therefore to see, in what directions and on what conditions the feeble restraints left available can be brought to bear. And these will be found varied, circuitous, manifold and cumulative.1

1 PHILLIP II. of Spain said that a king was never more secure from the malice of his people than when their discontents were suffered to evaporate in complaint.-1 Wracall's Fr. 96. SOCRATES said the sun could as easily be spared from the universe as free speech from the liberal institutions of society.-Apud Stob. Eth. xiii. TIMOLEON said the end of all his achievements against tyrants was to secure free speech to the meanest citizen.-Corn. Nep. xx. 5, 23.

Essential restraints to free speech on public grounds. -The restraints which confine the natural liberty of speech will be found ranged under four great heads of blasphemy, immorality, sedition, and defamation. There are bounds to be set to the expression of thoughts and opinions, and these must rest on the fundamental principles on which all societies are founded. It is assumed that there is a God in whom all citizens in their gravest moods are so interested, that it becomes offensive to all the rest if any one speaks of Him publicly in a scurrilous and contemptuous tone, such as would in a subject provoke a breach of the peace. Hence the first limit to free speech is Blasphemy. There are also rules of morality which are so universal, and so underlie the conscience of every individual, that speeches and writings which treat these rules with public contempt, and sap and mine the simple faith in all that is good, noble, and worthy, are also deemed a species of constructive breach of the peace too irritating to be allowed. Hence another limit to free speech and writing is Immorality. Again, there are rules of good conduct founded on the general duty of all citizens to support the government under which they live, and if possible to insure due respect and fair treatment to its leading administrators. Hence gross contempt of all laws and violent menaces of revolt against such guardians must not be allowed, for these necessarily discompose every citizen, and perplex him with fear of change or fear of public disaster and anarchy. And when this last head is still further examined, it will appear that the great factors of Government, consisting of the Sovereign, the Parliament, the Ministers of state, the Courts of Justice, must all be recognised as holding functions founded on sound principles, and to be defended and treated with an established and well-nigh unalterable respect. Each of these great institutions has peculiar virtues and peculiar weaknesses; but whether at any one time the virtue or the weakness predominates, there must be a certain standard of decorum reserved for all. Each guarded remonstrance, each fiery invective, each burst of indignation must rest on some basis of respect and deference towards the depository for the time being of every great constitutional function. Hence another limit to free speech and writing is Sedition.

And yet within that limit there is ample room and verge enough for the freest use of the tongue and pen in passing strictures on the judgment and conduct of every constituted authority.

Restraints of free speech on ground of defamation. While the restrictions already mentioned, which are founded on blasphemy, immorality, and sedition, show the boundaries of free speech and thought as affecting the public generally, there is a fourth limit on the other side as affecting individuals, known under the head of Libel, or the invasion of the reputation of private persons. This last limit involves the necessity of at once tracing the origin of that tendency of the individual to acquire such reputation and the value it possesses in his eyes, for it is here that the exercise of one natural right clashes directly with the exercise of another, and both are equally natural and equally inevitable.

Natural tendency to acquire character and reputation. A survey of the worldly career of each individual from youth to age makes it fully apparent that all the keenest aspirations and desires of the individual are best attained in proportion to the greater influence he acquires over his fellow men. The mode in which this influence is acquired and its presence felt is by creating in others a belief that he is possessed of integrity, truthfulness, and other virtues of social life. These are usually denoted by one compendious word-the character or reputation of the individual-the possession of which character is a selfsatisfying and legitimate source of happiness in itself, an essential feature of existence in all phases of civilisation.1

1 "It never can or will be disputed that a man is entitled to that tranquillity, happiness, and peace of mind which is the result of an honourable reputation, provided his conduct in life entitles him to it. There is implanted in every man's bosom an invincible sensibility to the opinion of his fellow creatures, which nothing can destroy. It is the foundation of all patriotism, the sentiment which rears states from infancy to maturity-the principle that makes men struggle for distinction and keeps them in the straight paths of their duty when called to the high offices of magistracy. The laws of society therefore protect mankind in this dearest of all human blessings; and if any man writes of another that which is injurious to him in his trade, profession, or character, or which tends to expose him to penalties, or brings him into contempt, it is libellous,