95

ESSAY XI.

Nemo vero fallatur, quasi minora sint animorum contagia quam corporum. Majora sunt; gravius lædunt; altius descendunt, serpuntque latentius.

PETRARCH. De Vit. Solit. L. 1. tract. 3. c. 4.

And let no man be deceived as if the contagions of the soul were less than those of the body. They are yet greater; they convey more direful diseases; they sink deeper, and creep on more unsuspectedly.

WE have abundant reason then to infer, that the law of England has done well and concluded wisely in proceeding on the principle so clearly worded by Milton that a book should be as freely admitted into the world as any other birth; and if it prove a monster, who denies but that it may justly be burnt or sunk into the sea?' We have reason then, I repeat, to rest satisfied with our laws, which no more prevent a book from coming into the world unlicensed, lest it should prove a libel, than a traveller from passing unquestioned through our turnpike-gates, because it is possible he may be a highwayman. Innocence is presumed in both cases. The publication is a part of the offence, and its ne

cessary condition. Words are moral acts and words deliberately made public the law considers in the same light as any other cognizable overt act.

Here however a difficulty presents itself. Theft, robbery, murder, and the like, are easily defined: the degrees and circumstances likewise of these and similar actions are definite, and constitute specific offences, described and punishable each under its own name. We have only to prove the fact and identify the offender. The intention too, in the great majority of cases, is so clearly implied in the action, that the law can safely adopt it as its universal maxim, that the proof of the malice is included in the proof of the fact; especially as the few occasional exceptions have their remedy provided in the prerogative of pardon entrusted to the supreme magistrate. But in the case of libel, the degree makes the kind, the circumstances constitute the criminality; and both degrees and circumstances, like the ascending shades of colour or the shooting hues of a dove's neck, die away into each other, incapable of definition or outline. The eye of the understanding, indeed, sees the determinate difference in each individual case, but language is most often inadequate to express what the eye perceives, much less can a general statute anticipate and pre-define it. Again: in other overt acts a charge disproved leaves the accused either guilty of a different fault, or at best simply blameless. A man having killed a fellow-citizen is acquitted of

murder; the act was manslaughter only, or it was justifiable homicide. But when we reverse the iniquitous sentence passed on Algernon Sidney, during our perusal of his work on government; at the moment we deny it to have been a traitorous libel, our beating hearts declare it to have been a benefaction to our country, and under the circumstances of those times the performance of an heroic duty. From this cause, therefore, as well as from a libel's being a thing made up of degrees and circumstances, and these too, discriminating offence from merit by such dim and ambulant boundaries,—the intention of the agent, wherever it can be independently or inclusively ascertained, must be allowed a great share in determining the character of the action, unless the law is not only to be divorced from moral justice, but to wage open hostility against it.*

Add too, that laws in doubtful points are to be interpreted according to the design of the legislator, where this can be certainly inferred. But the laws of England, which owe their own present supremacy and absoluteness to the good sense and generous dispositions diffused by the press more, far more, than to any other single cause, must needs be presumed favourable to its general influence.

According to the old adage: you are not hanged for stealing a horse, but that horses may not be stolen. To what extent this is true, I shall have occasion to examine hereafter.

Even in the penalties attached to its abuse, we must suppose the legislature to have been actuated by the desire of preserving its essential privileges. The press is indifferently the passive instrument of evil and of good: nay, there is some good even in its evil. "Good and evil we know," says Milton, in the Speech from which I have selected the motto of the preceding essay, "in the field of this world, grow up together almost inseparably and the knowledge of good is so involved and interwoven with the knowledge of evil, and in so many cunning resemblances hardly to be discerned, that those confused seeds which were imposed on Psyche as an incessant labour to cull out and sort asunder, were not more intermixed."—" As, therefore, the state of man now is, what wisdom can there be to choose, what continence to forbear, without the knowledge of evil? He that can apprehend and consider vice with all her baits and seeming pleasures, and yet abstain, and yet distinguish, and yet prefer that which is truly better, he is the true way-faring Christian. I cannot praise a fugitive and cloistered virtue, unexercised and unbreathed, that never sallies out and sees her adversary."

"That virtue, therefore, which is but a youngling in the contemplation of evil, and knows not the utmost that vice promises to her followers, and rejects it, is but a blank virtue, not a pure."—"Since, therefore, the knowledge and survey of vice is in this world so necessary to the constituting of hu

man virtue, and the scanning of error to the confirmation of truth, how can we more safely and with less danger scout into the regions of sin and falsity, than by reading all manner of tractates, and hearing all manner of reason?"-Again—but, inIdeed the whole treatise is one strain of moral wisdom and political prudence :-" Why should we then affect a rigor contrary to the manner of God and of nature, by abridging or scanting those means, which books, freely permitted, are both to the trial of virtue and the exercise of truth? It would be better done to learn, that the law must needs be frivolous, which goes to restrain things uncertainly, and yet equally, working to good and to evil. And were I the chooser, a dram of well-doing should be preferred before many times as much the forcible hindrance of evil-doing. For God, sure, esteems the growth and completion of one virtuous person, more than the restraint of ten vicious."

The evidence of history is strong in favour of the same principles, even in respect of their expediency. The average result of the press from Henry VIII. to Charles I. was such a diffusion of religious light as first redeemed and afterwards saved this nation from the spiritual and moral death of Popery; and in the following period it is to the press that we owe the gradual ascendancy of those wise political maxims, which casting philosophic truth in the moulds of national laws, customs, and existing orders of society, subverted the tyranny