Proclamations issued by Queen Elizabeth from time to time,[[35]] indicate the difficulty found in enforcing this monopoly and requirement of licensing, and a proclamation issued by Elizabeth[[36]] against “bringing into the realm unlawful books” indicates that the statute of Henry VIII[[37]] repealing the permission given in the reign of Richard III to import books from abroad[[38]] was being systematically disregarded. Attorney-general Popham gives witness to the same effect when in his speech before the Star Chamber in the prosecution of Sir R. Knightley and others he says, “Her Majesty Queen Elizabeth, in her great wisdom, hath issued proclamations that no pamphlets or treatises should be put in print but such as should first be seen and allowed; and further, lest that were not sufficient, she ordained that no printing should be used anywhere but in London, Oxford, or Cambridge. Notwithstanding all this served not, but they would print in corners and spread abroad things unprinted: wherefore Her Majesty set forth a proclamation in anno 25 that all Brownist books, and such other seditious books should be suppressed and burnt.[[39]]
The Star Chamber continued to exercise control over printing during the reign of James I, but with increasing difficulty, not lessened by the arbitrary and cruel ways in which it acted towards those whom it believed to be breaking its rules and regulations. The flood of books printed abroad continued into the reign of Charles I, and in 1637 we find a Star Chamber decree, “for reducing the number of master-printers, and punishing all others that should follow the trade, and for prohibiting as well the impression of all new books without license, and of such as have been licensed formerly without a new one, as the importation of all books in the English tongue, printed abroad, and of all foreign books whatever, till a true catalogue has been presented to the Archbishop of Canterbury, and the Bishop of London, and the books themselves had been received by their chaplains, or other learned men of their appointment, together with the masters and wardens of the Stationers’ Company.” A printer disobeying this order was to be fined, disabled from printing thereafter and the printing press forfeited.
The quarrel between Charles I and the Long Parliament resulted in the abolition of the Star Chamber, but the only result, as far as the press was concerned, was a change in masters, the Crown giving place to Parliament. From time to time orders were issued by the Parliament[[40]] similar in tone to those of the Star Chamber. One dated June 14, 1643, directs that “no book, pamphlet, paper, nor part of any such book, pamphlet, or paper, shall from henceforth be printed, bound, stitched, or put out to sale, by any person or persons whatsoever unless the same be first approved and licensed under the hands of such persons as both, or either, of the Houses, shall appoint for licensing of the same, and be entered in the Register Book of the Company of Stationers, according to ancient custom, and the printer thereof shall put his name thereto.” It was in reply to this action by Parliament that Milton produced in 1644 his “Areopagitica,” that matchless plea for freedom of speech and the liberty of the press. “We should be wary therefore,” he writes, “what persecution we raise against the living labours of public men, how we spill that seasoned life of man, preserved and stored up in books; since we see a kind of homicide may be thus committed, sometimes a martyrdom; and if it extend to the whole impression, a kind of massacre, whereof the execution ends not in the slaying of an elemental life, but strikes at the ethereal and fifth essence, the breath of reason itself; slays an immortality rather than a life.”[[41]]
But these stirring words fell on ears dulled by the clamor of contending battalions. It is true that from time to time a report of proceedings in Parliament appeared under the title of “Diurnal Occurrences in Parliament,” but in general Parliament was ever ready to crush at its first appearance any spirit considered by the members to be dangerous to constituted authority. On Sept. 30, 1647, Parliament, at the instigation of Fairfax, passed an ordinance, “for the better regulation of printing,” by which the restrictions were increased and a licenser appointed to whom before printing, all manuscripts had to be presented for approbation.
With the Restoration of Charles II the control of the press was continued by means of the Licensing Act of 1662, passed several times for periods of two years, finally expiring in 1679.[[42]] This was essentially a republication of the Star Chamber order of 1637, but since the Star Chamber no longer existed the scene was changed from that Court to the Old Bailey. In 1679, at the trial of Henry Carr,[[43]] indicted for some passages in a weekly paper, the Lord Chief Justice Scroggs declared it criminal at common law to “write on the subject of government, whether in terms of praise or censure, it is not material; for no man has a right to say anything of government.” In 1685, on the accession of James II, the Licensing Act was passed for a period of seven years, and in 1692, (during the reign of William and Mary), it was renewed for one year and the session of the following Parliament. In 1695 the House of Commons refused to again pass it, and in this way the Act expired, never to be renewed, and the press was placed on a footing of equality before the law with all other trades and occupations. And yet, as has been well pointed out by Macaulay,[[44]] the reasons given by the Parliament for their action did not in any way touch on the question of the rightfulness of a free press, but rather dealt with certain complaints in regard to the provisions of the law and the mode of application. “This paper,” he writes, “completely vindicates the resolution to which the Commons had come. But it proves at the same time that they knew not what they were doing, what a power they were calling into existence. They pointed out concisely, clearly, forcibly, and sometimes with a grave irony which is not unbecoming, the absurdities and iniquities of the statute which was about to expire. But all their objections will be found to relate to matters of detail. On the great question of principle, on the question whether the liberty of unlicensed printing be, on the whole, a blessing or a curse to society, not a word is said. The Licensing Act is condemned, not as a thing essentially evil, but on account of the petty grievances, the exactions, the jobs, the commercial restrictions, the domiciliary visits, which were incidental to it. It is pronounced mischievous because it enables the Company of Stationers to extort money from publishers, because it empowers agents of the government to search houses under the authority of general warrants, because it confines the foreign book trade to the port of London, because it detains packages of books at the Custom House till the pages are mildewed. The Commons complain that the amount of the fee which the licensers may demand is not fixed. They complain that it is made penal in an officer of the Customs to open a box of books from abroad, except in the presence of one of the censors of the press. How, it is very sensibly asked, is the officer to know that there are books in the box until he has opened it?” Such were the arguments which did what Milton’s “Areopagitica” had failed to do. But what we mean to-day by the term, the liberty of the press, is much more than the mere right to print without a previous application to a censor. The position which the press holds in this generation is the result of a slow but steady growth. After the refusal by Parliament to renew the Licensing Act the courts still did their best to prevent the reaping of any benefit from this. Newspaper reporting, and especially the reporting of Parliamentary debates was frowned on by Bench and Parliament alike. In 1722 the House of Commons passed the resolution “That no printer or publisher of any printed newspaper do presume to insert in any such papers any debates or other proceedings of this house or any committee thereof” and when Edward Cave in 1731 began to publish in his “Gentleman’s Magazine” a report of the debates he had to resort to the fiction of a “Senate of Great Lilliput” and even then lived in continual fear of prosecution.
As time passed Parliamentary reporting came to be tacitly recognized, but the law of libel still retained all its terrors. Bentham told the truth when he said “Anything which any man for any reason, chooses to be offended with is libel.” Lord Mansfield in the case of Henry Sampson Woodfall, prosecuted for publishing a seditious libel, enunciated the theory that the work of the jury began and ended with deciding the fact as to whether the accused was or was not responsible for the publication of the matter complained of, the crown, through the court, to decide whether the matter was libellous. For twenty years the question was fought over, and at last in 1791, Fox having changed his views in the matter, introduced his famous bill to amend the law of libel, and in 1792 the bill became law. The importance of this act can hardly be overestimated. After stating that “doubts have risen whether on the trial of an indictment or information for the making and publishing any libel, where an issue or issues are joined between the king and the defendant or defendants, on the plea of not guilty pleaded it be competent to the jury empanelled to try the same to give their verdict upon the whole matter in issue.” It goes on to enact that “the jury may give a general verdict of guilty or not guilty upon the whole matter in issue, and shall not be required or directed by the court or judge to find the defendant guilty merely in the proof of the publication by such defendant of the paper charged to be a libel, and of the sense ascribed to it in the indictment or information.” In the same spirit Judge Fitzgerald told a jury[[45]] “You are the sole judges of the guilt or innocence of the defendant. The judges are here to give any help they can; but the jury are the judges of law and fact, and on them rests the whole responsibility.”
Thus the idea of legal restrictions on the press passes away, and the law of libel becomes a law of the press in any case where defamation or false report is charged, and to a jury is committed the task of deciding whether the statement made was justified and proper. As Prof. Dicey aptly puts it,[[46]] “freedom of discussion is, then, in England, little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think it expedient should be said or written.... Whether in any particular case a given individual is to be convicted of libel depends wholly on their judgment, and they have to determine the questions of truth, fairness, intention, and the like, which affect the legal character of a published statement.”
But this point of view, which is the position in England, and to a large extent in our own land, has not been reached without a struggle, and it is to that struggle, so far as it was carried on in the American Colonies, that we must now turn out attention.
Livingston Rowe Schuyler.
New York City.