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The vocation of the censor, after existing more or less since the introduction of printing and for more than two centuries, has thus been abolished for 188 years, for all writings; and the only vestige of anything akin to it which is left outstanding is found in the practice__of licensing plays, which is noticed in another place.1 The extraordinary powers vested in the Attorney-General of filing criminal informations have sometimes been represented as the nearest approach to a censorship, though this last remedy merely follows swiftly instead of preceding the development of the danger.2

Early doctrines as to publication of news.-While a censorship was more or less shadowed forth by the common law, or at least was early taken up by the statute law, as inevitable for all publications, and that office was legalised by means of the Licensing Act, yet when that Act expired the fetters fell off for ever, without the prospect of renewal. It was not to be wondered, that newspapers should have met with a like experience. Though at first unknown and long obscure, these have gradually developed into the most powerful of all the forms of publication, and the most transcendent of all the means of free thought, and so have attracted the vigilant care of the legislature and the law. The judges at first rigorously applied to them the maxim, either derived from common law or involved in statute law, that to publish news of any kind, especially such as related to Government and to the public generally, required a license of some kind from the Sovereign. Britton seems to treat it as in his time an indictable offence to invent and report rumours and falsehoods concerning the king.3 Coke thought that it was the common law, founded on the law of God, that the author of false news was punishable. The common law, indeed, according to the dicta of early judges seems to have treated circulation of news as the same as the circulation of lies, and which it could scarcely be an honest employment to collect and publish. But subsequent experience has reversed these crude notions, and shown, that much of the interest of mankind is attracted by the reading of narratives of contemporary circumstances and events which may or may not be true, and the truth 1 See post, chap. xi. 2 See post, chap. v. 3 Britt. b. i. c. 21.

4 2 Inst. 228.

of which is either taken for granted, or their verification willingly postponed till the accidents of the future confirm or falsify them. The business of collecting news, whether true, or merely probable and as near the truth as is attainable for the moment, is thus viewed as a creditable employwent, and is at least entitled to the equal protection of the law. And when the collection of news is accompanied with the comments of intelligent editors, this form of publication has assumed the most commanding influence over mankind, and is now almost part of daily life and education, and insensibly moulds the minds of all citizens.

Oldest statute law as to false news.-The old law on the subject of false news is founded on the statute of West. I. in 1275, which commanded, that "none be so hardy as to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people or the great men of the realm, and he that doth so shall be taken to prison till he has brought into court him who did speak the same." 1 And Coke gives as instances of the mischief caused by false bruits and rumours the battles of Lewes and Evesham; and says the statute reduced the punishment to the milder form of imprisonment, which formerly was cutting out the tongue, unless the whole head could be redeemed. The next statute, of 1378, as to Scandalum magnatum, narrating the horrible and false lies of great men (specifying most of the high functionaries and peers), again forbids "any one to be so hardy as to devise, speak, or tell any false news, lies, or other false things of such great men," and repeated the same punishment. The next statute, of 1388, went a little

1 Stat. West. I., 3 Ed. I. c. 34; 2 Inst. 225; R. v Derby, Fortescue, 140.

22 Rich. II. st. 1, c. 5. The first statute was said to be suggested by the Duke of Lancaster, who was unpopular with the villeins of his time, and yet it was said no action had been brought on that statute for 100 years.-3 Reeves' Hist. 211; 1 Parl. Hist. 160; 1 Mod. 233; 2 Mod. 154-6. Wickham had slandered John of Gaunt with illegitimacy.-4 Inst. 51. A man was put in the pillory with a whetstone round his neck by the aldermen of London for circulating false reports about a murder having taken place in the city, and reflecting on the insufficiency of the watchmen.-Riley, Mem. Lond. 454 (A.D. 1381). And in 1382 another who went about in the city saying, "The Lord Mayor had been committed to the Tower of London, there to be imprisoned in the Blackhole," was treated in the

further, and enacted, that if the author of the lies and false news cannot be found, then he who repeats them shall be punished by the advice of the council, notwithstanding the statutes. Statutes of a like kind followed in the reign of Edward VI. and Elizabeth.2 There seemed to be soon after the Reformation an abuse of prophesying, for a statute of 1549 punished with imprisonment and fine whoever set forth in speaking, singing, writing, printing, or publishing any fantastical or false prophecy on the occasion of any arms, fields, letters, &c., with intent to raise insurrection or disturbance. And Coke says lamentable and fatal events had fallen out upon vain prophecies carried out of the inventions of wicked men; and that predictions either of the time or end of the world were not lawful, and are contrary to Scripture.

Right to publish news generally.-These statutes show how feeble and imperfect was the wisdom of Parliament as regards what is now the leading work of free thought and speech. The only aspect of the business was at first, the effect of news on great men and the probability of their being libelled. The public rights were as yet undreamt of. The statutes however did not go the length of punishing or restraining the mere publication or circulation of news in the modern acceptation of the term, far less of treating it as a constructive breach of the peace. All that they did was to declare that if false news relating to great men were published, then some punishment of a vague kind would

same way.-Ibid. 460. A statute of Henry VIII. also made it felony to declare any false prophecy on the occasion of arms, fields, or letters.-33 Hen. VIII. c. 14. A Chancellor of Edward VI. issued a proclamation enjoining all justices to arrest all tellers of vain and forged lies, and commit them to the galleys to remain during pleasure.-2 Campb. Ch. 39. And a statute of 1554 gave justices of the peace power to inquire into this offence, and put those early statutes in force.-1 & 2 Ph. & M. c. 3. This statute of 1554 was the first to punish specially the devising or spreading of false news and tales against the king and queen. The first offence was punished with pillory and loss of one ear. And those who printed and set forth ballads or writings to stir up insurrection were punished with the loss of the right hand, and on subsequent offences with imprisonment for life and loss of goods.-1 & 2 Ph..& M. c. 3; 1 Eliz. c. 6.

1 12 Rich. II. c. 11. 33 Inst. 1.8.

* 3 & 4 Ed. VI. c. 15; 5 Eliz. c. 15.

result. But there was no enactment, express or implied, which subjected the mere publication of general news to any punishment or to the necessity of a preliminary licen e except so far as was common to all other publications. Yet the judges adopted decided views to the contrary, and these assumed the form of a first principle, namely, that newspapers were, per se, unlawful, and were constructive breaches of the peace, and savoured of sedition. When the Licensing Act was about to expire in the time of Charles II., the twelve judges were assembled to discover, whether the press might not be as effectually restrained by the common law; they no doubt thought all mischiefs had or ought to have a remedy, and they had a notion, that the publication of any news whatever without the king's authority was dangerous. They came to the resolution, that it was criminal not only to write seditious papers and false news, but likewise to publish any news without a license from the king, though such news were true and innocent.'

This doctrine, alleged to be laid down by the judges of

1 R. v Harris, 7 St. Tr. 929; Entinck & Carrington, 19 St. Tr. 1070. SCROGGS, C. J. laid down the law to this effect, that "all the judges met at the king's command, and held that all persons that do write, or print, or sell any pamphlet that is either scandalous to public or private persons, such books may be seized and the person punished by law. And all writers of news, though not scandalous, seditious, nor reflective upon the Government or the State, yet if they are writers (as there are few others) of false news, they are indictable and punishable upon that account." The jury found one Harris "guilty of selling a book," but SCROGGS, C. J., told them that was not their business; they were only to say guilty or not guilty. And Harris was fined 5007., put in the pillory an hour, and ordered to find sureties for good behaviour for three years.-R. v Harris, 7 St. Tr. 930. JEFFREYS, C. J., also told juries that "it was the opinion of all the judges of England that it is the law of the land that no person should offer or expose to public knowledge anything that concerns the Government without the king's immediate license."K. v Carr, 7 St. Tr. 1115.

SCROGGS, C. J., repeated his doctrine on another occasion, thus :"When by the king's command we were to give in our opinion, what was to be done in point of the regulation of the press, we did all subscribe, that to print or publish any newsbooks or pamphlets of news whatsoever is illegal; that it is a manifest intent to the breach of the peace, and that they may be proceeded against by law for an illegal thing. Though the thing is not scandalous, yet it is illicit and without authority, and the author ought to be corrected for it." -R. & Carr, 7 St. Tr. 1127.

Charles II., that the publication of news was per se illegal, unless licensed by the Crown, whencesoever derived, had some encouragement from the earlier statutes; nevertheless, there was nothing in the common law to warrant it, for at no epoch of history could it ever be reasonably assumed, that the business of collecting and dispersing news required the license of the Crown or of Parliament, or of any functionary, any more than the liberty to think and speak, or to use any of the faculties with which mankind are endowed. The doctrine, after haunting the courts, and even apparently lingering in the mind of Holt, vanished out of sight without the necessity of being either solemnly repealed or reversed or repudiated, unless we suppose that it died with the Licensing Act in 1692. This last collection of false views of all kinds relating to the freedom of thought happily was itself dispersed by the Revolution of 1688 and its immediate consequences.

Maliciously publishing what is known to be false.— But while no liability is now incurred by publishing news in the ordinary sense, except they are libellous, there is now a distinct offence declared in modern times as to some of these, namely, when they are known to be false. While malice is usually matter of inference from the conduct and subject matter, this criminal offence is expressly declared by statute, whenever one maliciously publishes a defamatory libel knowing it to be false.1

Special laws as to newspapers.-Though the doctrine as to a license of the Crown being necessary in order to publish a newspaper was never thoroughly settled, and soon was abandoned, there were other exceptional laws from time to time passed with respect to these periodicals. The whole doctrine of the common law must have originated in the sixteenth century, for previously even the mechanical means of circulating news had scarcely come into existence.2 One of the first definite restrictions put

1 6 & 7 Vic. c. 96, § 4. Imprisonment for two years and a fine at discretion. As to the usual defence, see post, chaps. ix. and x.

2 The first gazette is said to have been published at Venice in 1536, but it was not allowed to be printed, being only circulated in manuscript.-Chalmer's Ruddiman, 105; 2 Lodge, Ill. Brit. Hist.

414.

The first French newspaper was the French Mercury in 1611, founded by Jean Richer and Etienne.-Rapport, Lib. de la Presse,

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