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The Online Library of Liberty A Project Of Liberty Fund, Inc. James Mill, Liberty of the Press [1825] The Online Library Of Liberty This E-Book (PDF format) is published by Liberty Fund, Inc., a private, non-profit, educational foundation established in 1960 to encourage study of the ideal of a society of free and responsible individuals. 2010 is the 50th anniversary year of the founding of Liberty Fund. It is part of the Online Library of Liberty web site http://oll.libertyfund.org, which was established in 2004 in order to further the educational goals of Liberty Fund, Inc. To find out more about the author or title, to use the site's powerful search engine, to see other titles in other formats (HTML, facsimile PDF), or to make use of the hundreds of essays, educational aids, and study guides, please visit the OLL web site. This title is also part of the Portable Library of Liberty DVD which contains over 1,000 books, audio material, and quotes about liberty and power, and is available free of charge upon request. The cuneiform inscription that appears in the logo and serves as a design element in all Liberty Fund books and web sites is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash, in present day Iraq. To find out more about Liberty Fund, Inc., or the Online Library of Liberty Project, please contact the Director at oll@libertyfund.org. LIBERTY FUND, INC. 8335 Allison Pointe Trail, Suite 300 Indianapolis, Indiana 46250-1684 Edition Used: Supplement to the Encyclopedia Britannica (London: J. Innes, 1825). Author: James Mill About This Title: One of the articles James Mill wrote for the Encyclopedia Britannica. Online Library of Liberty: Liberty of the Press PLL v5 (generated January 22, 2010) 2 http://oll.libertyfund.org/title/1762 About Liberty Fund: Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals. Copyright Information: The text is in the public domain. Fair Use Statement: This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit. Online Library of Liberty: Liberty of the Press PLL v5 (generated January 22, 2010) 3 http://oll.libertyfund.org/title/1762 Online Library of Liberty: Liberty of the Press PLL v5 (generated January 22, 2010) 4 http://oll.libertyfund.org/title/1762 Table Of Contents Liberty of the Press. I.: Nature and Objects of the Inquiry. II.: Offences of the Press With Respect to Private Rights. III.: Offences of the Press With Respect to Government. IV.: Limitations to Freedom of Discussion, Which Involve Its Destruction. Printed by J. Iunes, 61, Wells-street, Oxford-street, London. Online Library of Liberty: Liberty of the Press PLL v5 (generated January 22, 2010) 5 http://oll.libertyfund.org/title/1762 [Back to Table of Contents] LIBERTY OF THE PRESS. I. Nature And Objects Of The Inquiry. THE task of pointing out which of the acts, capable of being committed by the press, it would be expedient to prohibit under penalties, we trust will be found to be greatly diminished, by what we have already established in the articles Government and Jurisprudence. There is scarcely a right, for the violation of which, scarcely an operation of government, for the disturbance of which the press may not be employed as an instrument. The offences capable of being committed by the press are indeed nearly co-extensive with the whole field of delinquency. It is not, however, necessary to give a separate definition of every such violation or disturbance, when committed by the press; for that would be to write the penal code a second time; first describing each offence as it appears in ordinary cases; and then describing it anew for the case in which the press is the particular instrument. If, for the prevention of the violation of rights, it were necessary to give a separate definition, on account of every instrument which might be employed as a means of producing the several violations, the penal code would be endless. In general, the instrument or means is an immaterial circumstance. The violation itself, and the degree of alarm which may attend it, are the principal objects of consideration. If a man is put in fear of his life, and robbed of his purse, it is of no consequence whether he is threatened with a pistol or with a sword. In the definition of a theft, of a fraud, or a murder, it is not necessary to include an account of all the sorts of means by which these injuries may be perpetrated. It is sufficient if the injury itself is accurately described. The object is to prevent the injury, not merely when produced by one sort of means or another sort of means, but by any means. From these illustrations, it sufficiently appears, that, if an accurate penal code were composed, defining the violations of rights, and the disturbances of the operations of government, to which penalties were to be annexed, every offence, capable of being committed by the press, would be defined without mentioning the press. It is no less evident, that if we include in the term libel, as, to the great encouragement of confusion, is generally done, all the offences capable of being committed by the press, we include in the definition of libel all the definitions of the penal code. As far as Persons and Property are concerned, the general definition of the acts by which rights are liable to be violated, has always been held sufficient; and has been regarded as including not less the cases in which the instrumentality of the press has been employed, than those in which any other means have been employed to the same Online Library of Liberty: Liberty of the Press PLL v5 (generated January 22, 2010) 6 http://oll.libertyfund.org/title/1762 end. Nobody ever thought of a particular law for restraining the press on account of the cases in which it may have been rendered subservient to the perpetration of a murder or a theft. It is enough that a law is made to punish him who has been guilty of the murder or theft, whether he has employed the press or any thing else as the means for accomplishing his end. There can be no doubt, however, that the press is an instrument peculiarly adapted for the commission of injuries against Reputation, and for effecting disturbance to the operations of Government, while it has no peculiar adaptation for the commission of other offences. Here, too, there is the greatest disposition to restrain the press within improper limits. It is demanded of us, therefore, upon this part of the subject, to enter into greater detail. We are then to inquire, in the first place, What are the acts of the press with respect to private reputation: and next, What are the acts with respect to government, which it is desirable that punishment should be employed to restrain. Online Library of Liberty: Liberty of the Press PLL v5 (generated January 22, 2010) 7 http://oll.libertyfund.org/title/1762 [Back to Table of Contents] II. Offences Of The Press With Respect To Private Rights. Agreeably to the principles which have been already considered in the article Jurisprudence, no act can be regarded as an offence with respect to an individual, which is not a violation of some of his rights.* In considering the rights which ought to be established with respect to reputation, one proposition may be assumed; That every man should be considered as having a right to the character which he deserves; that is, to be spoken of according to his actions. Such Offences Should Be Defined. In what manner the definition of this right, which would form a part of the civil code, should be expressed, is not now the question; it is evident there is no peculiar difficulty in the matter. As words, not thoughts, are the object of legal cognizance, the right can only have respect to security against certain words; words, imputing to the individual, actions which he has not performed, or a disposition to certain actions, without evidence that such a disposition exists. Suppose that one man has instituted a suit against another, for the offence of having violated, through the press, his right to some part of the reputation which he deserves. In his ground of complaint he must affirm that the man has imputed to him either the performance of actions which he did not commit, or a disposition to certain actions, where no evidence of such disposition can be given. The words are produced; and the first question is, whether they do or do not impute the actions which, in the complaint, or bill of accusation, they are alleged to impute? It is to be observed, that they who oppose the attempt to define the offences, which, for shortness, we call the offences of the press, make use of such occasions, as this, to raise their objections. How, they ask, can all the forms of expression be defined, by which the imputation of such and such actions may be, either more openly, or more covertly, conveyed? It is very evident that the question, on such an occasion, whether the words do or do not impute such or such actions, is a question of fact. The law says, that such and such actions shall not be imputed, defining the actions. Whether such and such a man has imputed such actions, and whether by one set of words, or another set of words, are questions of fact. The law, when it said that such and such acts should not be imputed to a man, could not determine whether A, who is accused by B, of having imputed to him one of those acts, did so, or not. That is to be determined by evidence, bearing upon the point. One, Online Library of Liberty: Liberty of the Press PLL v5 (generated January 22, 2010) 8 http://oll.libertyfund.org/title/1762 and in general the main article of that evidence, are the words which have been used. What is the import of these words; or, which comes to the same thing, what is the degree of proof involved in them, is to be determined, as all questions respecting the weight of evidence are, in each instance, to be determined, by the tribunal before which the accusation is brought. The interpretation of words rests upon the same footing in this, as in all other cases, that, for example, of a Will. The law determines, that whatsoever disposition a man has made with respect to his property, shall take effect after his death. But whether A has left his manor of Dale to B, is a matter of fact to be determined by evidence applying to that particular point; principally by that arising from the words of the will. It may still be argued, by persons who do not easily renounce an opinion to which they have once given their support, that the actions, the imputation of which, the legislature means to prohibit, cannot be defined. But this is a position which cannot long be maintained. It is hurtful to a man, if he is believed to have committed some actions, or to have a disposition to commit them; it is not hurtful in the case of others. Evidently it is by imputation of the first sort alone, that any right with respect to reputation can be infringed. The acts, which a man receives injury from being believed to have committed, or to be disposed to commit, are either those to which the law has annexed penalties, or those to which the penalties of public disrepute and dislike are annexed. With respect to those acts to which the law has annexed penalties, as theft, murder, perjury, and so on, it will not be pretended that there is any difficulty; the law has already defined them, or ought to define them, and they may be marked with perfect precision by a few words. Those acts which it is hurtful to a man, solely on account of the disrepute and dislike which they produce, to have it believed that he has committed them, may also he with sufficient accuracy determined. Compensation Should Be Made To The Individual For Injuries Sustained By Offences Of The Press. The ends to be attained by punishment are, Reparation to the individual to whom injury has been done, and Prevention of similar acts in future. In the idea of all punishment, effectual reparation to the injured individual is a necessary and essential ingredient. Suppose, then, it were declared by the legislature, that every imputation to a man of acts which bring the evil of dislike and disrepute upon him who has committed them, that is, every false imputation, shall be punished at least by reparation to be made to the party injured; the term evil is to this purpose perfectly precise. It would remain with the complainant to show what kind and degree of injury he had received; which is a matter of fact, to be estimated, in each instance, Online Library of Liberty: Liberty of the Press PLL v5 (generated January 22, 2010) 9 http://oll.libertyfund.org/title/1762 from the evidence adduced, by the tribunal before which the question is brought. If the injury sustained is a pecuniary injury, the question coincides exactly with the question of damages, decided regularly, in English courts, as a question of fact, by the jury. Injuries of the kind which we are now considering can affect a man only in two ways; either, by lessening the pecuniary value which he might otherwise have enjoyed; or, by lessening the marks of respect and affection which he would otherwise have received. What the loss is, in this latter instance, is also evidently a question of fact. It has nothing, therefore, to do with the legal definition of the offence, the business of the legislature. It is a question, which, like all other questions of fact, must of necessity be determined upon evidence by the tribunal before which it is brought. It is no doubt a question of delicacy, and considerable difficulty, because the evidence must often consist of very fine and minute circumstances, which can seldom be precisely ascertained. But this is not the only class of judicial questions, the determination of which depends upon such evidence as it is very difficult accurately to collect and to weigh. What is of greatest importance, on this occasion, to remark is, that all the difficulty lies in the matter of fact. There is no doubt or obscurity in the law, which says, that whatsoever hurt a man has sustained through actions or dispositions falsely imputed to him, he shall receive compensation for. Difficulties, however, arising either from the complexity of the matter of fact, or the obscurity of the evidence, no legislative enactments can prevent. These are confided to the skill and integrity of the judge. The compensation which ought to be made to a man for the diminution of those marks of respect and affection which he would otherwise have received, is a question for the legislature. Let us suppose that a soldier has been accused of cowardice, in such a manner as to create a general belief of the truth of the accusation; that a man of honour has been accused of mendacity, or of some of those irregular propensities to which the horror of the public is attached; it is evident that money is not, in such cases, an appropriate compensation. When a man, through the offence of another, has been deprived of a certain amount of money, or of money’s worth, we say that he has received compensation, when he is placed in the same situation in which he would have been, if the offence had never taken place. According to this idea of compensation, a man, against whom an unfavourable opinion has been created, by the act of another man, has received compensation, when he is placed in the same situation with regard to the opinion of those with whom he is connected, as if that act had not taken place. This, therefore, is the object which it ought to be the endeavour of the legislature to effect. One expedient is perfectly appropriate. It is, that the man who has falsely propagated an unfavourable opinion with respect to another, should be made to do whatever is in his power to remove the impression he has made. To this end, he should publish the sentence of the judge, declaring that the action, or disposition which he had imputed to the individual injured, he had imputed to him falsely. He should at least be made to Online Library of Liberty: Liberty of the Press PLL v5 (generated January 22, 2010) 10 http://oll.libertyfund.org/title/1762 publish it in every way in which he had published the imputation. Frequently a more extensive publication might be required. In most cases, it will be allowed, that thus much would suffice. It may, however, be affirmed, that often the impression would be too profoundly struck, to be effaced by a mere knowledge of the sentence of the judge. In such cases, something more in the way of compensation would be required. On this, it is of importance to be observed, that if the impression produced by an imputation, which, after solemn inquiry, the judge has declared to be false, should not, by that declaration, be completely effaced, it implies necessarily one of two things; either that the public have evidence of the truth of the accusation, which was not adduced to the judge, and then the remaining impression is not owing to the imputation which the judge has condemned, but to the evidence; or, secondly, that the public mind is in a state of gross ignorance and imbecility, capable of forming opinions, even on the clearest subjects, not only not according to evidence, but in opposition to it. If the public mind, however, is in such a deplorable condition, it is the fault of the legislature; and for the rectification of this evil, the best course undoubtedly is, to take effectual measures for the instruction of the people, which instruction would soon place them beyond the danger of such delusions. In the mean time, if something more than the publication of the sentence of the judge were necessary to restore a man to that degree of consideration, of which the false imputation had deprived him, governments have numerous ways of raising the consequence of individuals; and no legislature would be at a loss for a gradation of expedients suited to the scale of demand. Means Which Should Be Used For Preventing The Violation Of Rights By The Press. We have now illustrated that part of this question which regards compensation to the injured individual. It remains to inquire what is best to be done in this case, for the attainment of the other object of punishment, namely, the prevention of similar offences in time to come. To devise a punishment sufficient to prevent an offence, is to provide a motive sufficient to counteract the motive which leads to the offence. We have hence to consider what are the motives by which men are incited to make false imputations on the characters of others. These motives may be of three different sorts. A man may derive pecuniary profit, he may derive comparative distinction, or he may satisfy his desire of vengeance, by blackening the character of his neighbour. In the case in which a man has by calumny wrongfully intercepted the pecuniary receipts of his neighbour, the obligation of making satisfaction to the party injured would, it is obvious, alone suffice, provided the machinery of the laws were sufficiently perfect, to render the execution of them certain. Seldom would any man calumniate his neighbour, for the sake of placing £20 in his own pocket, if he were sure that, next day, or next week, he would have to restore it, with all the profit which Online Library of Liberty: Liberty of the Press PLL v5 (generated January 22, 2010) 11 http://oll.libertyfund.org/title/1762 might have been made by the use of it, and with the disgrace besides of having committed an action which other men abhor. So