Book 6, Chapter 06 : Of Libels
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Book 6, Chapter 06
Public libels. - Injustice of an attempt to pre- scribe the method in which public questions shall be discussed. - Its pusillanimity. - Invita- tions to tumult. - Private libels. - Reasons in favor of their being subjected to restraint. - Answer. - 1. It is necessary the truth should be told. - Salutary effects of the unrestrained investigation of character. - Objection: freedom of speech would be productive of calumny, not of justice. - Answer. - Future history of libel. - 2. It is necessary men should be taught to be sincere. - Extent of the evil which arises from a command to be insincere. - The mind spon- taneously shrinks from the prosecution of a libel. - Conclusion.
IN the examination already bestowed upon the article of heresy, political and religious,1 we have anticipated one of the heads of the law of libel; and, if the arguments there adduced be admitted for valid, it will follow that no punishment can justly be awarded against any writing or words derogatory to religion or political government.
It is impossible to establish any solid ground of distinction upon this subject, or to lay down rules in conformity to which controversies, political or religious, must be treated. It is impossible to tell me, when I am penetrated with the magnitude of the subject, and I must be logical, and not eloquent: or, when I feel the absurdity of the theory I am combating, that I must not express it in terms that shall produce feelings of ridicule in my readers. It were better to forbid me the discussion of the subject altogether than forbid me to describe it in the manner I conceive to be most suitable to its merits. It would be a most tyrannical species of candor to tell me, 'You may write against the system we patronize, provided you will write in an imbecile and ineffectual manner; you may inquire and investigate as much as you please, provided, when you undertake to communicate the result, you carefully check your ardor, and be upon your guard that you do not convey any of your own feelings to your readers.' In subjects connected with the happiness of mankind, the feeling is the essence. If I do not describe the miserable effects of fanaticism and abuse, if I do not excite in the mind a sentiment of aversion and ardor, I had better leave the subject altogether, for I am betraying the cause of which I profess to be the advocate. Add to this, that rules of distinction, as they are absurd in relation to the dissidents, will prove a continual instrument of usurpation and injustice to the ruling party. No reasonings will appear fair to them but such as are futile. If I speak with energy, they will deem me inflammatory; and if I describe censurable proceedings in plain and homely but pointed language, they will cry out upon me as a buffoon.
It must be truly a deplorable case if truth, savored by the many, and patronized by the great, should prove too weak to enter the lists with falsehood. It is in a manner self-evident that that which will stand the test of examination cannot need the support of penal statutes. After our adversaries have exhausted their eloquence, and exerted themselves to mislead us, truth has a clear, nervous and simple story to tell, which, if force be excluded on all sides, will not fail to put down their arts. Misrepresentation will speedily vanish if the friends of truth be but half as alert as the advocates of falsehood. Surely then it is a most ungracious plea to offer, 'We are too idle to reason with you, and are therefore determined to silence you by force.' So long as the adversaries of justice confine themselves to expostulation, there can be no ground for serious alarm. As soon as they begin to act with violence and riot, it will be time enough to encounter them with force.
There is however one class of libel that seems to demand a separate consideration. A libel may either not confine itself to any species of illustration of religion or government, or it may leave illustration entirely out of its view. Its object may be to invite a multitude of persons to assemble, as the first step towards acts of violence. A public libel is any species of writing in which the wisdom of some established system is controverted; and it cannot be denied that a dispassionate and severe demonstration of its injustice tends, not less than the most alarming tumult, to the destruction of such institutions. But writing and speech are the proper and becoming methods of operating changes in human society, and tumult is an improper and equivocal method. In the case then of the specific preparations of riot, it should seem that the regular force of the society may lawfully interfere. But this interference may be of two kinds. It may consist of precautions to counteract all tumultuous concourse, or it may arraign the individual for the offenses he has committed against the peace of the community. The first of these seems sufficiently commendable and wise, and would perhaps, if vigilantly exerted, be, in almost all cases, adequate to the purpose. A firm and explicit language as to the preceding steps, a careful attention to avoid unecessary irritation and violence, and a temperate display of strength in case of extremity, might be expected always to extricate the government in safety in these delicate exigencies. It must be a very uncommon occasion in which the mass of the sober and effective part of the community will not be found inimical to disorderly and tumultuous proceedings. The second idea, that of bringing the individual to account for a proceeding of this sort, is of a more doubtful nature. A libel the avowed intention of which is to lead to immediate violence is altogether different from a publication in which the general merits of any institution are treated with the utmost freedom, and may well be supposed to fall under different rules. The difficulty here arises from the consideration of the general nature of punishment, which is abhorrent to the true principles of mind, and ought to be restrained within as narrow limits as possible, if not immeliately abolished.2 A distinction to which observation and experience, in cases of judicial proceeding, have uniformity led is that between crimes that exist only in intention, and over acts. So far as prevention only is concerned, the former would seem, in many cases, not less entitled to the animadversion of society than the latter; but the evidence of intention usually rests upon circumstances equivocal and minute, and the friend of justice will tremble to erect any grave proceedings upon so uncertain a basis.3 These reasonings on exhortations to tumult will also be found applicable, with slight variation, to incendiary letters addressed to private persons.
But the law of libel, as we have already said, distributes itself into two heads, libels against public establishments and measures, and libels against private character. Those who have been willing to admit that the first ought to pass unpunished have generally asserted the propriety of counteracting the latter by censures and penalties. It shall be the business of the remainder of this chapter to show that they were erroneous in their decision.
The arguments upon which their decision is built must be allowed to be both popular and impressive. 'There is no external possession more solid, or more valuable than an honest fame. My property, in goods or estate, is appropriated only by convention. Its value is, for the most part, the creature of a debauched imagination; and, if I were sufficiently wise and philosophical, he that deprived me of it would do me very little injury. He that inflicts a stab upon my character is a much more formidable enemy. It is a very serious inconvenience that my countrymen should regard me as destitute of principle and honesty. If the mischief were entirely to myself, it is not possible to be regarded with levity. I must be void of all sense of justice, if I am callous to the contempt and detestation of the world. I must cease to be a man, if I am unaffected by the calumny that deprives me of the friend I love, and leaves me perhaps without one bosom in which to repose my sympathies. But this is not all. The same stroke that annihilates my character extremely abridges, if it do not annihilate, my usefulness. It is in vain that I would exert my good intentions and my talents for the assistance of others, if my motives be perpetually misinterpreted. Men will not listen to the arguments of him they despise; he will be spurned during life, and execrated as long as his memory endures. What then are we to conclude but that to an injury greater than robbery, greater perhaps than murder, we ought to award an exemplary punishment?'
The answer to this statement may be given in the form of an illustration of two propositions: first, that it is necessary the truth should be told; secondly, that it is necessary men should be taught to be sincere.
First, it is necessary the truth should be told. How can this ever be done if I be forbidden to speak upon more than one side of a question? The case is here exactly similar to the case of religion and political establishment. If we must always hear the praise of things as they are, and allow no man to urge an objection, we may be lulled into torpid tranquility, but we can never be wise.
If a veil of partial favor is to be drawn over the indiscretions and faults of mankind, it is easy to perceive whether virtue or vise will be the gainer. There is no terror that comes home to the heart of vise like the terror of being exhibited to the public eye. On the contrary, there is no reward worthy to be bestowed upon eminent virtue but this one, the plain, unvarnished proclamation of its excellence in the face of the world.
If the unrestrained discussion of abstract inquiry be of the highest importance to mankind, the unrestrained investigation of character is scarcely less to be cultivated. If truth were universally told of men's dispositions and actions, gibbets and wheels might be dismissed from the face of the earth. The knave unmasked would be obliged to turn honest in his own defense. Nay, no man would have time to grow a knave. Truth would follow him in his first irresolute essays, and public disapprobation arrest him in the commencement of his career.
There are many men at present who pass for virtuous that tremble at the boldness of a project like this. They would be detected in their effeminacy and imbecility. Their imbecility is the growth of that inauspicious secrecy which national manners, and political institutions, at present draw over the actions of individuals. If truth were spoken without reserve, there would be no such men in existence. Men would act with clearness and decision if they had no hopes in concealment, if they saw, at every turn, that the eye of the world was upon them. How great would be the magnanimity of the man who was always sure to be observed, sure to be judged with discernment, and to be treated with justice? Feebleness of character would hourly lose its influence in the breast of those over whom it now domineers. They would feel themselves perpetually urged, with an auspicious violence, to assume manners more worthy of the form they bear.
To these reasonings it may perhaps be rejoined, 'This indeed is an interesting picture. If truth could be universally told, the effects would no doubt be of the most excellent nature; but the expectation is to be regarded as visionary.'
Not so: the discovery of individual and personal truth is to be effected in the same manner as the discovery of general truth, by discussion. From the collision of disagreeing accounts, justice and reason will be produced. Mankind seldom think much of any particular subject without coming to think right at last.
'Is it then to be supposed that mankind will have the discernment and the justice, of their own accord, to reject the libel?' Yes; libels do not at present deceive mankind from their intrinsic power, but from the restraint under which they labor. The man who, from his dungeon, is brought to the light of day cannot accurately distinguish colors; but he that has suffered no confinement feels no difficulty in the operation. Such is the state of mankind at present: they are not exercised to employ their judgment, and therefore they are deficient in judgment. The most improbable tale now makes a deep impression; but then men would be accustomed to speculate upon the possibilities of human action.
At first, it may be, if all restraint upon the freedom of writing and speech were removed, and men were en-couraged to declare what they thought, as publicly as possible, every press would be burdened with an inunda-tion of scandal. But the stories, by their very multiplicity, would defeat themselves. No one man, if the lie were successful, would become the object of universal persecu-tion. In a short time, the reader, accustomed to the dis-section of character, would acquire discrimination. He would either detect the imposition by its internal ab-surdity, or at least would attribute to the story no further weight than that to which its evidence entitled it.
Libel, like every other human concern, would soon find its level, if it were delivered from the injurious interference of political institution. The libeler, that is, he who utters an unfounded calumny, either invents the story he tells, or delivers it with a degree of assurance to which the evidence that has offered itself to him is by no means entitled. In each case he would meet with his proper punishment in the judgment of the world. The consequences of his error would fall back upon himself. He would either pass for a malignant accuser, or for a rash and headlong censurer. Anonymous scandal would be almost impossible in a state where nothing was concealed. But, if it were attempted, it would be wholly pointless, since, where there could be no honest and rational excuse for concealment, the desire to be concealed would prove the baseness of the motive.
Secondly, force ought not to intervene for the suppression of private libels, because men ought to learn to be sincere. There is no branch of virtue more essential than that which consists in giving language to our thoughts. He that is accustomed to utter what he knows to be false, or to suppress what he knows to be true, is in a state of perpetual degradation. If I have had particular opportunity to observe any man's vises, justice will not fail to suggest to me that I ought to admonish him of his errors, and to warn those whom his errors might injure. There may be very sufficient ground for my representing him as a vicious man, though I may be totally unable to demonstrate his vises, so as to make him a proper subject of judicial punishment. Nay, it cannot be otherwise; for I ought to describe his character exactly as it appears to be, whether it be virtuous or vicious, or of an ambiguous nature. Ambiguity would presently cease if every man avowed his sentiments. It is here as in the intercourses of friendship: a timely explanation seldom fails to heal a broil; misunderstandings would not grow considerable were we not in the habit of brooding over imaginary wrongs.
Laws for the suppression of private libels are, properly speaking, laws to restrain men from the practice of sincerity. They create a warfare between the genuine dictates of unbiassed private judgment and the apparent sense of the community; throwing obscurity upon the principles of virtue, and inspiring an indifference to the practice. This is one of those consequences of political institution that presents itself at every moment: morality is rendered the victim of uncertainty and doubt. Contradictory systems of conduct contend with each other for the preference, and I become indifferent to them all. How is it possible that I should imbibe the divine enthusiasm of benevolence and justice, when I am prevented from discerning what it is in which they consist? Other laws assume for the topic of their animadversion actions of unfrequent occurrence. But the law of libels usurps the office of directing me in my daily duties, and, by perpetually menacing me with the scourge of punishment, undertakes to render me habitually a coward, continually governed by the basest and most unprincipled motives.
Courage consists more in this circumstance than in any other, the daring to speak everything the uttering of which may conduce to good. Actions the performance of which requires an inflexible resolution call upon us but seldom; but the virtuous economy of speech is our perpetual affair. Every moralist can tell us that morality eminently consists in 'the government of the tongue'. But this branch of morality has long been inverted. Instead of studying what we shall tell, we are taught to consider what we shall conceal. Instead of an active virtue, 'going about doing good', we are instructed to believe that the chief end of man is to do no mischief. Instead of fortitude, we are carefully imbued with maxims of artifice and cunning, misnamed prudence.
Let us contrast the character of those men with whom we are accustomed to converse, with the character of men such as they ought to be, and will be. On the one side, we perceive a perpetual caution that shrinks from the observing eye, that conceals, with a thousand folds, the genuine emotions of the heart, and that renders us unwilling to approach the men that we suppose accustomed to read it, and to tell what they read. Such characters as ours are the mere shadows of men, with a specious outside perhaps, but destitute of substance and soul. When shall we arrive at the land of realities, where men shall be known for what they are, by energy of thought, and intrepidity of action! It is fortitude that must render a man superior alike to caresses and threats, enable him to derive his happiness from within, and accustom him to be, upon all occasions, prompt to assist and to inform. Everything therefore favorable to fortitude must be of inestimable value: everything that inculcates dissimulation, worthy of our fullest disapprobation.
There is one thing more that is of importance to be observed upon this subject of libel, which is the good effects that would spring from every man's being accustomed to encounter falsehood with its only proper antidote, truth. After all the arguments that have been industriously accumulated to justify prosecution for libel, every man that will retire into himself feels himself convinced of their insufficiency. The modes in which an innocent and a guilty man would repel an accusation against them might be expected to be opposite; but the law of libel confounds them. He that was conscious of his rectitude, and undebauched by ill systems of government, would say to his adversary, 'Publish what you please against me, I have truth on my side, and will confound your misrepresentations.' His sense of fitness and justice would not permit him to say, 'I will have recourse to the only means that are congenial to guilt, I will compel you to be silent.' A man urged by indignation and impatience may commence a prosecution against his accuser; but he may be assured, the world, that is a disinterested spectator, feels no cordiality for his proceedings. The language of their sentiments upon such occasions is, 'What! he dares not even let us hear what can be said against him.'
The arguments in favor of justice, however different may be the views under which it is considered, perpetually run parallel to each other. The recommendations under a this head are precisely the same as those under the preceding, the generation of activity and fortitude. The tendency of all false systems of political institution is to render the mind lethargic and torpid. Were we accustomed not to recur either to public or individual force, but upon occasions that unequivocally justified their employment we should then come to have some respect for reason for we should know its power. How great must be the difference between him who answers me with a writ of summons or a challenge, and him who employs the sword and the shield of truth alone? He knows that force only is to be encountered with force, and allegation with allegation; and he scorns to change places with the offender by being the first to break the peace. He does that which, were it not for the degenerate habits of society, would scarcely deserve the name of courage, dares to meet, upon equal ground, with the sacred armor of truth, an adversary who possesses only the perishable weapons of falsehood. He calls up his understanding; and does not despair of baffling the shallow presences of calumny. He calls up his firmness and knows that a plain story, every word of which is marked with the emphasis of sincerity, will carry conviction to every hearer. It were absurd to expect that truth should be cultivated, so long as we are accustomed to believe that it is an impotent incumbrance. It would be impossible to neglect it, if we knew that it was as impenetrable as adamant, and as lasting as the world.
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