libels for sale, unless a search warrant could be issued to authorise them to be seized, this power was given in 1857 to justices of the peace, subject to certain conditions, namely the oath of the informant and the inspection or a satisfactory account of the libel, so as to show its true nature.1

1.20 & 21 Vic. c. 83, § 1; 2 Pat. Com. (Pers.) 366.

CHAPTER V.

ABUSE OF FREE SPEECH BY SEDITIOUS WORDS AND
WRITINGS.

Sedition generally.-While blasphemy and immorality indicate two of the extreme limits at which discussion, comment, and speculation must stop, and which surround with a barrier the thoughts and speeches exhibited in public meetings and in the public press, the third and most conspicuous limit of the same kind may be described under the general head of Sedition. The two former point to dangers and restrictions which are somewhat abstract, occasional and remote; they are seldom touched upon by the educated, the prudent, and the prosperous, and at best close in the horizon of free thought with shadowy outlines. The distance of the extreme boundary in these two cases prevents any prohibition to approach them from being felt as a serious loss. But it is otherwise with sedition, under which head are included all those libels which are aimed at our most conspicuous rulers, in which we exercise our powers of observation and give voice to our complaints, in which we discuss and animadvert upon the conduct of all those who play a part in the government of the country, and therefore in that which comes home most closely to our own business and bosoms.

The citizens of a free country differ from those of a country less free, most of all in this one characteristic, that the former are constantly animated with the consciousness that each and every part of the governmentboth what is imperial and what is local-exists for the good, not of the governors, but of the governed, and that the governed take an active and personal part in its whole machinery by virtue of their representatives in Parliament,

who preside over the springs of action and who both act and react on each other. The public business is the business of every intelligent citizen; in which he takes almost as close an interest as in his own personal affairs. The power, glory, and influence of his country are felt to be his own; he watches the movements of fleets and armies the feints and protests of ambassadors—the rise and fall of ministers, as if they all drew their inspiration from his own thoughts, and as if they were doing his own business and contributing only their fair share to the common fund, in the disposal of which he has an equal voice. There is no longer recognised any divine right of government confined to any one class. Hence all the great officers of state, who take their turn of care and of temporary authority, are viewed as within his call, and as deserving well or ill, according as they divine his own mind, or ought to have divined it. Comment, criticism, censure, and praise on all public men and public affairs are thus part of his every-day thoughts, which give variety and freshness to life, and lift him above the narrow round of his own immediate occupations. He thus becomes part of the management in the greatest enterprises, and takes much of his daily pleasure in dispensing praise to his faithful stewards, and blame to those who mistook his secret instructions.1

In a free country, or one aspiring to the highest freedom,

1 "I should be heartily glad if some able lawyers would prescribe the limits, how far a private man may venture in delivering his thoughts upon public matters, because a true lover of his country may think it hard to be a quiet stander-by and an indolent looker-on while a public error prevails by which a whole nation may be ruined. Every man who enjoys property has some share in the public; and therefore the care of the public is, in some degree, every such man's concern."-Swift's Drapier.

"All men may, nay, all men must, if they possess the faculty of thinking, reason upon everything which sufficiently interests them to become objects of their attention, and among the objects of the attention of free men the principles of government, the constitution of particular governments, and, above all, the constitution of the government under which they live, will naturally engage attention and provoke speculation. The power of communication of thoughts and opinions is the gift of God, and the freedom of it is the source of all science, the first fruits and the ultimate happiness of society; and therefore it seems to follow, that human laws ought not to

it is thus indispensable, that the general rule should be, that each citizen shall have all but the widest scope and encouragement to make his country's business his own, and to circulate his opinion on every detail of its multifarious affairs and on every several officer in charge of them. Yet in the exercise of this imperial faculty he must needs often touch on delicate ground. His free handling of reputations may often lead to excess of indignation, scorn, contempt, reckless personal abuse, and relentless malignant hatred. All this paper shot is but the homage paid by the ministers of a free country for the certainty of retaining in the citizens' own hands their controul over their own affairs. And as the vocation of ministers and patriots deserves the same protection, as free speech requires full play, collisions must occur and certain limits must often be touched upon and overpassed. Thus the fiercest light of freedom surrounds all that part of the liberty of speech, thought, and reputation, which is shut in by the fear of seditious libels. Voices from the crowd accompany every conspicuous step in the government. In the war of words few can hope to escape without committing some excess. It is thus of the highest importance to try and trace out the bounds where freedom ends and where the firm hand of irresistible authority commands absolute silence.1

Right of the subject to comment on public affairs.-This right of comment on public affairs will thus be seen to be, not as it is often loosely described, a privilege, but an absolute right, like the right of the public to go on the highway. And the sole question always comes to be, whether that right has been abused, it being a cardinal rule, that while a public man cannot in a free country choose but be liable to have his conduct discussed without stint, yet he, as well as his critics, is entitled to the preservation of

interpose, nay, cannot interpose, to prevent the communication of sentiments and opinions in voluntary assemblies of men."-L. Mansfield, C. J., quoted 32 Parl. Hist. 318.

"To inform the public on the conduct of those who administer public affairs requires courage and conscious security. It is always an invidious and obnoxious office, but it is often the most necessary of all public duties. If it is not done boldly, it cannot be done effectually, and it is not from writers trembling under the uplifted Scourge that we are to hope for it.”—Sir J. Mackintosh, R. v Peltier, 28 St. Tr. 529.

his good name and reputation from wrong. If the critic wantonly or even by mistake of his own judgment actually injures the reputation of any public man, then that critic is liable to an action and an indictment for defamation, if not to the more public remedy appropriate to seditious libels.1 A great master of the art of explaining and vindicating this right has well observed, that the questions as to the liberty of the press have always arisen on the application of the principle to particular cases. That principle is this, that every subject has a clear right freely to discuss the principles and forms of the government-to argue upon their imperfections and to propose remedies-to arraign with fair argument the responsible ministers and magistrates of the country, though not to hold them up to general indiscriminating execration and contempt. It is the office of the jury to say within which of the two descriptions any political writing is to be classed.1 It is thus almost self evident that it is not only the right, but the duty of every citizen to speak his mind freely on each and every department of the state, and above all on the mode in which the main functions of the government are discharged. Each of the great functionaries has at best only a limited portion of the management under his immediate controul, and his duty is mostly to watch and restrain other functionaries, so as to prevent encroachment on each other's domain. But the combined result of all this watching, this zeal and patriotism, is not for the benefit of any one person or class, but for each and every individual of every class. No single individual has a greater interest than any other in maintaining in the highest efficiency the whole of the functions of government, and if it is not everybody's business, then it is nobody's business to watch with jealous care the common inheritance-to dispense praise here or blame there--to encourage, to warn, to detect, to disparage, and even to get rid of any public servant, who falls short in his public duties.

Views of the Ancients about public opinion.-Though this absolute right of free comment on public affairs may now seem an elementary principle, it was long far from being deemed so. We are told that in Solon's time the Athenians had made a decree, that it was a capital 1 Ersk. arg. R. v Cuthell, 27 St. Tr. 665.