« PrécédentContinuer »
defect of the laws, but also from the non-execution of them; and this non-execution of such a kind, that it is often impossible to subject it to any express punishment, or even to ascertain it by any previous definition; men, in several states, have been led to seek for an expedient that might supply the unavoidable deficiency of legislative provisions, and begin to operate, as it were, from the point at which the latter began to fajl: I mean here to speak of the censorial power,-a power which may produce excellent effects, but the exercise of which (contrary to that of the legislative power) must be left to the people themselves.
As the proposed end of legislation is not, according to what has been above observed, to have the particular intentions of individuals, upon every case, known and complied with, but solely to have what is most conducive to the public good, on the occasions that arise, found out and established, it is not an essential requisite in legislative operations that every individual should be called upon to deliver his opinion; and since this expedient, which at first sight appears so natural, of seeking out by the advice of all that which concerns all, is found liable, when carried into practice, to the greatest inconveniences, we must not hesitate to lay it aside entirely. But as it is the opinion of individuals alone which constitutes the check of a censorial power, this power cannot produce its intended effect any farther than this public opinion is made known and declared: the sentiments of the people are the only thing in question here: it is therefore necessary that the people should speak for themselves, and manifest those sentiments. A particular court of censure would essentially frustrate its intended purpose : it is attended, besides, with very great inconveniences.
As the use of such a court is to determine upon those cases which lie out of the reach of the laws, it cannot be tied down to any precise regulations. As a further consequence of the arbitrary nature of its functions, it cannot even be subjected to any constitutional check; and it continually presents to the eye the view of a power entirely arbitrary, and which in its different exertions may affect, in the most cruel manner, the peace and happiness of individuals. It is attended, besides, with this very pernicious consequence, that by dictating to the people their judgments of men or measures, it takes from them that freedom of
thinking, which is the noblest privilege, as well as the firmest support of liberty.*
We may therefore look upon it as a farther proof of the soundness of the principles on which the English constitution is founded, that it has allotted to the people themselves the province of openly canvassing and arraigning the conduct of those who are invested with any branch of public authority ; and that it has thus delivered into the hands of the people
* M. de Montesquieu, and M. Rousseau, and indeed all the writers on this subject I have met with, bestow vast encomiums on the censorial tribunal that had been insti. tuted at Rome :—they have not been aware that this power of censure, lodged in the hands of peculiar magistrates, with other discretionary powers annexed to it, wa no other than a piece of state-craft, like those described in the preceding chapters, and had been contrived by the senate as an additional mean of securing its authority. Sir Thomas More has also adopted similar opinions on the subject : and he is so far from allowing the people to canvass the actions of their rulers, that, in his System of Policy, which he calls An Account of Utopia (the happy region, ev and TOTOS), he makes it death for individuals to talk about the conduct of government.
I feel a kind of pleasure, I must confess, to observe, on this occasion, that though I have been called by some an advocate for power, I have carried my ideas of liberty farther than many writers who have mentioned that word with much enthusiasm.
at large the exercise of the censorial power. Every subject in England has not only a right to present petitions to the king, or to the houses of parliament, but he has a right also to lay his complaints and observations before the public, by means of an open press. A formidable right this, to those who rule mankind; and which, continually dispelling the cloud of majesty by which they are surrounded, brings them to a level with the rest of the people, and strikes at the very being of their authority.
And indeed this privilege is that wbich has been obtained by the English nation with the greatest difficulty, and latest in point of time, at the expense of the executive power. Free dom was in every other respect already established, when the English were still, with regard to the public expression of their sentiments, under restraints that may be called despotic. History abounds with instances of the severity of the Court of Star-chamber, against those who presumed to write on political subjects. It had fixed the number of printers and printing-presses, and appointed a licenser, without whose approbation no book could be published. Besides, as this tribunal decided matters by its own single authority, without the intervention of a jury, it was
always ready to find those persons guilty whom the court was pleased to look upon as
nor was it indeed without ground that the chief-justice Coke, whose notions of liberty were somewhat tainted with the prejudices of the times in which he lived, concluded the eulogiums he bestowed on this court with saying, that, “ the right institution and orders “ thereof being observed, it doth keep all
England in quiet.”
After the court of Star-chamber had been abolished, the Long Parliament, whose conduct and assumed power were little better qualified to bear a scrutiny, revived the regulations against the freedom of the press. Charles the Second, and after him James the Second, procured farther renewals of them. These latter acts having expired in the year 1692, were at this æra, although posterior to the Revolution, continued for two years longer ; so that it was not till the year 1694, that, in consequence of the parliament's refusal to prolong the probibitions, the freedom of the press (a privilege which the executive power could not, it seems, prevail upon itself to yield up to the people) was finally established.
In what, then, does this liberty of the press precisely consist? Is it a liberty left to every