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is to be found, wherever juries are sufficiently enlightened to perceive the difference, and to comprehend the origin and necessity of the difference, between libels and other criminal overt-acts, and are sufficiently independent to act upon the conviction, that in a charge of libel, the degree, the circumstances, and the intention, constitute—not merely modify—the offence, give it its being, and determine its legal name. The words maliciously and advisedly, must here have a force of their own, and a proof of their own. They will consequently consider the law as a blank power provided for the punishment of the offender, not as a light by which they are to determine and discriminate the offence. The understanding and conscience of the jury are the judges in toto : the law a blank congé d'élire. The law is the clay, and those the potter's wheel. Shame fall on that man, who shall labor to confound what reason and nature have put asunder, and who at once, as far as in him lies, would render the press ineffectual and the law odious : who would lock up the main river, the Thames, of our intellectual commerce; would throw a bar across the stream, that must render its navigation dangerous or partial, using as his materials the very banks, which were intended to deepen its channel and guard against its inundations ! Shame fall on him, and a participation of the infamy of those, who misled an English jury to the murder of Algernon Sidney.
But though the virtuous intention of the writer must be allowed a certain influence in facilitating his acquittal, the degree of his moral guilt is not the true index or mete-wand of his condemnation. For juries do not sit in a court of conscience, but of law; they are not the representatives of religion, but the guardians of external tranquillity. The leading principle, the pole-star, of the judgment in its decision concerning the libellous nature of a published writing, is its more or less remote connection with after overt-acts, as the cause or occasion of the same. Thus the publication of actual facts may be, and most often will be, criminal and libellous, when directed against private characters : not only because the charge will reach the minds of many who can not be competent judges of the truth or falsehood of facts to which themselves were not witnesses, against a man whom they do not know, or at best know imperfectly ; but because such a publication is of itself a very serious overt-act, by which the author without authority and without trial, has inflicted punishment on a fellow
subject, himself being witness and jury, judge and executioner. Of such publications there can be no legal justification, though the wrong may be palliated by the circumstance that the injurious charges are not only true, but wholly out of the reach of the law. But in libels on the government there are two things to be balanced against each other : first, the incomparably greater mischief of the overt-acts, if we suppose them actually occasioned by the libel—(as for instance, the subversion of government and property, if the principles taught by Thomas Paine had been realized, or if even an attempt had been made to realize them, by the many thousands of his readers) ; and second, the very great improbability that such effects will be produced by such writings. Government concerns all generally, and no one in particular. The facts are commonly as well known to the readers, as to the writer : and falsehood therefore easily detected. It is proved, likewise, by experience, that the frequency of open political discussion, with all its blamable indiscretions, indisposes a nation to overt-acts of practical sedition or conspiracy. They talk ill, said Charles V. of his Belgian provinces, but they suffer so much the better for it. His successor thought differently : he determined to be master of their words and opinions, as well as of their actions, and in consequence lost one half of those provinces, and retained the other half at an expense of strength and treasure greater than the original worth of the whole. An enlightened jury, therefore, will require proofs of more than ordinary malignity of intention, as furnished by the style, price, mode of circulation, and so forth ; or of punishable indiscretion arising out of the state of the times, as of dearth, for instance, or of whatever other calamity is likely to render the lower classes turbulent, and apt to be alienated from the government of their country. For the absence of a right disposition of mind must be considered both in law and in morals, as nearly equivalent to the presence of a wrong disposition. Under such circumstances the legal paradox that a libel may be the more a libel for being true, becomes strictly just, and as such ought to be acted upon.
Concerning the right of punishing by law the authors of heretical or deistical writings, I reserve my remarks for a future essay, in which I hope to state the grounds and limits of toleration more accurately than they seem to me to have been hitherto traced. There is one maxim, however, which I am tempted to seize as it
passes across me. If I may trust my own memory, it is indeed a very old truth : and yet if the fashion of acting in apparent ignorance thereof be any presumption of its novelty, it ought to be new, or at least have become so by courtesy of oblivion. It is this : that as far as human practice can realize the sharp limits and exclusive' proprieties of science, law and religion should be kept distinct. There is, in strictness, no proper opposition but between the two polar forces of one and the same power.* If I say then, that law and religion are natural opposites, and that the latter is the requisite counterpoise of the former, let it not be interpreted, as if I had declared them to be contraries. The law has rightfully invested the creditor with the power of arresting and imprisoning an insolvent debtor, the farmer with the power of transporting, mediately at least, the pillagers of his hedges and copses; but the law does not compel him to exercise that power, while it will often happen that religion commands him. to forego it. Nay, so well was this understood by our grandfathers, that a man who squares his conscience by the law was a common paraphrase or synonyme of a wretch without any conscience at all. We have all of us learnt from history, that there was a long and dark period, during which the powers and the aims of law were usurped in the name of religion by the clergy and the courts spiritual : and we all know the result. Law and
* Every power in nature and in spirit must evolve an opposite as the sole means and condition of its manifestation : and all opposition is a tendeney to re-union. This is the universal law of polarity or essential dualism, first promulgated by Heraclitus, 2000 years afterwards re-published, and made the foundation both of logic, of physics, and of metaphysics by Giordano Bruno. The principle may be thus expressed. The identity of thesis and antithesis is the substance of all being ; their opposition the condition of all existence or being manifested; and every thing or phenomenon is the exponent of a synthesis as long as the opposite energies are retained in that synthesis. Thus water is neither oxygen nor hydrogen, nor yet is it a commixture of both; but the synthesis or indifference of the two: and as long as the copula endures, by which it becomes water, or rather which alone is water, it is not less a simple body than either of the imaginary elements, improperly called its ingredients or components. It is the object of the mechanical atomistic philosophy to confound synthesis with synartesis, or rather with mere juxtaposition of corpuscules separated by invisible interspaces. I find it difficult to determine, whether this theory contradicts the reason or the senses most: for it is alike inconceivable and unimaginable.
religion thus interpenetrating, neutralized each other; and the baleful product, or tertium aliquid, of this union retarded the civilization of Europe for centuries. Law splintered into the minutiæ of religion, the awful function and prerogative of which it is to take account of every idle word, became a busy and inquisitorial tyranny: and religion substituting legal terrors for the ennobling influences of conscience remained religion in name only. The present age appears to me approaching fast to a similar usurpation of the functions of religion by law : and if it were required, I should not want strong presumptive proofs in favor of this opinion, whether I sought for them in the charges from the bench concerning wrongs, to which religion denounces the fearful penalties of guilt, but for which the law of the land assigns damages only: or in sundry statutes—and all praise to the late Mr. Wyndham, Romanorum ultimo—in a still greater number of attempts towards new statutes, the authors of which displayed the most pitiable ignorance, not merely of the distinction between perfect, and imperfect obligations, but even of that still more sacred distinction between things and persons. What the son of Sirach advises concerning the soul, every senator should apply to his legislative capacity :-reverence it in meekness, knowing: how feeble and how mighty a thing it is !*
From this hint concerning toleration, we may pass by an easy transition to the, perhaps, still more interesting subject of tolerance. And here I fully coincide with Frederic H. Jacobi, that the only true spirit of tolerance consists in our conscientious toleration of each other's intolerance. Whatever pretends to be more than this, is either the unthinking cant of fashion, or the soul-palsying narcotic of moral and religious indifference. All of us without exception, in the same mode though not in the same degree, are necessarily subjected to the risk of mistaking positive opinions for certainty and clear insight. From this yoke we can not free ourselves, but by ceasing to be men; and this too not in order to transcend, but to sink below, our human nature. For if in one point of view it be the mulct of our fall, and of the corruption of our will; it is equally true, that contemplated from another point, it is the price and consequence of our progressiveness. To him who is compelled to pace to and fro within
* The reference, probably, is to Ecclus. X. 28. My son, glorify thy soul in meekness, and give it honor according to the dignity thereof.-Ed.
the high walls and in the narrow court-yard of a prison, all objects may appear clear and distinct. It is the traveller journeying onward full of heart and hope, with an ever-varying horizon on the boundless plain, who is liable to mistake clouds for mountains, and the mirage of drouth for an expanse of refreshing waters.
But notwithstanding this deep conviction of our general fallibility, and the most vivid recollection of my own, I dare avow with the German philosopher, that as far as opinions, and not motives, principles, and not men;—are concerned ; I neither am tolerant, nor wish to be regarded as such. According to my judgment, it is mere ostentation, or a poor trick that hypocrisy plays with the cards of nonsense, when a man makes protestation of being perfectly tolerant in respect of all principles, opinions, and persuasions, those alone excepted which render the holders intolerant. For he either means to say by this, that he is utterly indifferent towards all truth, and finds nothing so insufferable as the persuasion of there being any such mighty value or importance attached to the possession of the truth as should give a marked preference to any one conviction above any other ; or else he means nothing, and amuses himself with articulating the pulses of the air instead of inhaling it in the more healthful and profitable exercise of yawning. That which doth not withstand, hath itself no standing place. To fill a station is to exclude or repel others,—and this is not less the definition of moral, than of material solidity. We live by continued acts of defence, that involve a sort of offensive warfare. But a man's principles, on which he grounds his hope and his faith, are the life of his life. We live by faith, says the philosophic Apostle ; and faith without principles is but a flattering phrase for wilful positiveness, or fanatical bodily sensation. Well, and of good right therefore, do we maintain with more zeal, than we should defend body or estate, a deep and inward conviction, which is as the moon to us; and like the moon with all its massy shadows and deceptive gleams, it yet lights us on our way, poor travellers as we are, and benighted pilgrims. With all its spots and changes and temporary eclipses, with all its vain halos and bedimming vapors, it yet reflects the light that is to rise on us, which even now is rising, though intercepted from our immediate view by the mountains that inclose and frown over the vale of our mortal life.