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by order of the House, was whipped by the hangman. Wellwood, the editor of the "Mercurius Rusticus,” Dyer, the editor of the well-known “News Letter," and Fogg, the proprietor of "Mist's Journal," were compelled in the presence of the House to express on their knees their contrition. Whitehead's poem called “Manners" was voted a libel. Occasionally, as in the case of Hoadly, the House passed resolutions of approval."
The folly of having a lawmaking body deal out punishment for such things, ended with the Wilkes episode, famous chiefly for firmly establishing the freedom of the press to criticize public servants, but also deserving no small credit for leading Parliament to refrain from further usurping the functions of the courts in applying the standards of morality. One of the three reasons for the expulsion of John Wilkes from the House of Commons in 1769 was his share in the preparation and printing of certain poems that unquestionably were in a high degree blasphemous and obscene. Only thirteen copies of the little volume containing them were printed and only the most private circulation was in mind, but the Government, ignoring all scruples in its mad desire to suppress Wilkes, bribed his workmen and got hold of a set of proof sheets. The House of Lords declared the poems “a scandalous, obscene, and impious libel,” and addressed to the King a demand for the prosecution of Wilkes for blasphemy. Thereupon, though absent from the country, he was tried and outlawed. When four years later he returned to England and gave himself up, more than half of his punishment of fine and imprisonment was for this publication, and in the following year it was put forward as one of the reasons for expulsion from the House.
Another of the reasons has received much more attention, and deservedly, because it unshackled the newspapers of England. In 1763 Wilkes savagely attacked Bute and the Government in No. 45 of his periodical, the “North Briton." Grenville, who succeeded Bute, made Wilkes a political martyr by having him thrown in prison. Chief Justice Pratt held that Wilkes was exempted from arrest by reason of his privilege as a member of Parliament. His release was hailed with rejoicing in all parts of England, but his troubles had only begun, for the issue was transferred to the House, which voted by a large majority that the famous No. 45 of his paper was a seditious libel and ordered it burned by the common hangman. Wilkes fled to France and the House punished him with his first expulsion. After he came back from France and was elected to Parliament from the county of Middlesex, the House expelled him for the second time, whereupon he was returned without opposition, only to have the House declare him incapable of sitting. Twice this was repeated, and then after another display of stubborn persistence by a majority of the electors of Middlesex, the House gave the seat to a minority candidate, Colonel Luttrell, though he had received but three hundred votes. This produced intense indignation throughout the country, for the fight between Wilkes and the Government had come to engross public attention. He had been made a hero of the people. Although in prison, presents of jewelry, furniture, wines, and plate were showered on him, and £20,000 was raised to pay off his debts. When at last he was released, the City of London made him an Alderman.
1 Lecky, England in the Eighteenth Century, 1, 474.
In 1774 he was again elected to Parliament and this time was permitted to take his seat. The House got rid of the quarrel with him by deciding that his alleged incapacity to serve had ended with the previous Parliament, but it could not shake off his demand for vindication. In eight successive years he brought forward his motion to clear his record, and then in 1782 he made his victory complete by getting all the declarations, orders, and resolutions regarding the Middlesex election expunged from the Journals, as being subversive of the rights of the whole body of electors.
This memorable contest brought a great boon to the cause of freedom of speech, but it did not establish that liberty could safely sink into license. This was shown when, in 1810, the Commons having committed to Newgate the publisher of an offensive placard announcing for discussion in a debating society the conduct of two members of the House, Sir Francis Burdett in his place in Parliament denied the authority of the Commons and enforced his denial in a published address to his constituents. He was himself adjudged by the House to be guilty of contempt, and committed to the Tower by the warrant of the Speaker, but not until the aid of the military had been called in to overcome his forcible resistance. He then brought action for redress against the Speaker and the Sergeant-at-Arms, but the Court of King's Bench, and, on appeal, the Exchequer Chamber and the House of Lords, successively upheld the authority of the House.
In England the courts have held that though the public career of any member of Parliament or of any candidate for Parliament is of course a matter of public interest in the constituency, not so his private life and history. “However large the privilege of electors may be,” said Lord Denman, C.J., 2 “it is extravagant to suppose that it can justify the publication to all the world of facts injurious to a person who happens to stand in the position of a candidate.” Electors, however, are entitled to investigate all matters in the past private life of a candidate which if as alleged would prove him morally or intellectually unfit to represent them in Parliament; but not to state as facts what they only know as rumors.3
Slander made trouble early in the American colonies. A Virginian, Francis Willis, in 1640 condemned the laws of the preceding General Assembly as repugnant to justice; and he also spoke in harsh terms of the Gloucester bench. The General Court, taking cognizance of his words, considered to be the more inexcusable because he was the clerk of that county and also a practicing attorney, sentenced him to stand at the door of the court house with a placard attached to his head announcing his offense; deprived him of his clerkship and attorney's license; and required him to pay a fine of twenty-eight pounds sterling, and to suffer imprisonment during the pleasure of the Governor.
P.A. Bruce, in his valuable“Institutional History of Virginia,' tells us (11, 448, 449) the Burgess was invested with so much sacredness that it was considered to be as serious an offense to speak of him disrespectfully or scandalously as of the Governor or the members of the Council. “You are one of our Burgesses with a pox," Thomas Fowlkes remarked angrily and sneeringly to Hugh Yeo, a representative from Accomac County in 1666, then adding: “You go to Jamestown, and sett there, and sayes nothing, and comes back like a foole.” These words were deemed to be highly derogatory to the general reputation of Yeo as a member of the House, and Fowlkes had to suffer in consequence. An insult offered to the Assembly as a whole was resented with even greater bitterness. For such an offense
IT. P. Taswell-Langmead, English Const. Hist., 685, 686.
Edward Prescott in 1660 was summarily committed to prison. When Giles Bland, in his rage over Philip Ludwell's failure to keep an appointment to fight a duel with him, nailed his glove, by way of defiance, to the door of the Assembly's hall, Ludwell being a Burgess at the time, the Assembly thought his conduct such an outrage on its dignity that it fined him a hundred pounds sterling and in addition required him to make his submission in its presence, which, we are told, he did with a proud and haughty air. In 1693 Thomas Rooke, for speaking abusively of the same body, and even more opprobriously of Mr. Kemp, one of its members, was sentenced to acknowledge the heinousness of his offense on his knees in the Assembly chamber, and in that humiliating attitude to beg the pardon of the Assembly as well as that of Mr. Kemp; and at the conclusion of the performance he was delivered into the custody of the messenger, who received orders to detain him until the House saw fit to release him.
The lawmakers of Massachusetts Bay found it necessary to protect the colony by general legislation against falsehood and slander. In 1644 the House directed a committee “to drawe upp an order for ye preventinge of falce rumors which are to frequently spread within this jurisdiction."i Presumably it was as a result of this that the next year the General Court passed an order that appears in the codification of 1660 as follows :
"Whereas Trueth in Words, as well as in actions, is required of all men, Especially of Christians, who are the professed servants of the God of Trueth; And whereas all Lying is contrary to truth, and some sort of lyes are not only sinfull (as all lyes are) but also pernicious to the Publick weal, and injurious to particular persons; It is therefore ordered by this Court and Authority thereof, That every person of the age of discretion (which is accounted fourteen yeares) who shall wittingly and willingly make, or publish any lye, which may be pernicious to the publick weal, or tending to the damage or injury of any particular person, or with intent to deceive and abuse the people, with false news and reports," shall be fined ten shillings for the first offense, or if unable to pay, set in the stocks; for the second; twenty shillings, or whipped with not more than ten stripes ; for the third; forty shillings, or not more than fifteen stripes ; and so on. If he appealed and the appeal was found causeless, the fine was to be doubled.
1 Records of the Colony of the Mass. Bay in N.E., III, 7.
The first newspaper in America was called "Publick Occurrences” and it appeared in Boston, September 25, 1690. It appeared but once. Then it died, unwillingly. It had touched on local and military matters, innocently enough, we should now think, but the lawmakers thought otherwise. They said it came out “contrary to law” and contained “reflections of a very high nature.” So they strictly forbade "anything in print, without license first obtained from those appointed by the government to grant the same.'
Fourteen years later, either because the dignitaries had reconciled themselves to the idea of a newspaper or because John Campbell, Postmaster of Boston, had influence enough to get permission, the “News-Letter” was issued by Campbell with better success. That and the “Gazette,” which followed in 1719, kept out of trouble with the government, but such was not the fortune of another journal, the “Courant,” started by James Franklin in 1721. Its career has been made familiar by the “Autobiography” of Benjamin Franklin, brother of James. Benjamin, a boy of sixteen, was working for his brother when, according to the "Autobiography," one of the pieces in the newspaper on some political point gave offense to the Assembly. James, the account goes on to say, “was taken up, censured, and imprisoned for a month, by the Speaker's warrant, I suppose, because he would not discover his author. I, too, was taken up and examined before the Council; but, tho' I did not give them any satisfaction, they contented themselves with admonishing me, and dismissed me, perhaps, as an apprentice, who was bound to keep his master's secrets. During my brother's confinement, which I resented a good deal, notwithstanding our private differences, I had the management of the paper, and I made bold to give our rulers some rubs in it, which my brother took very kindly, while others began to consider me in an unfavorable light, as a young genius that had a turn for libeling and satire. My brother's discharge was accompanied with an order of the House (a very odd one) that 'James Franklin should no longer print the paper called the “New England Courant”!.” After consultation among his friends, it was decided that the paper should be continued under Benjamin's name, and that went on for several months, until