Page:EB1911 - Volume 22.djvu/314

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300

PRESS LAWS

especially newspapers. The liberty of the press has always been regarded by modern political writers as of supreme importance. “Give me liberty to know, to utter, and to argue freely according to conscience, above all other liberties,” says Milton in the Areopagitica.

At the present day the liberty of the press in English-speaking countries is a matter of merely historical importance. But this liberty was a plant of slow growth. Before the invention of printing the Church assumed the right to control the expression of all opinion distasteful to her. When the printing-press was invented German printers established themselves at various important centres of western Europe, where already numbers of copyists were employed in multiplying manuscripts. In 1473 Louis XI. granted letters patent (giving the right of printing and selling books) to “Uldaric Quéring” (Ulrich Gering), who three years earlier had set up a press in the Sorbonne (the theological faculty of the university at Paris), and before long Paris had more than fifty presses at work. The Church and universities soon found the output of books beyond their control. In 1496 Pope Alexander VI. began to be restive, and in 1501 he issued a bull against unlicensed printing, which introduced the principle of censorship.[1] Between 1524 and 1548 the Imperial Diet in Germany drew up various stringent regulations; and in 1535 Francis I., in France, prohibited by edict, under penalty of death, the printing of books. This was too severe, however, and shortly afterwards the Sorbonne was given the right of deciding, a system which lasted to the Revolution.

In England the authority of parliament was invoked to aid the ecclesiastical authority. There is an ordinance as early as 1382, 5 Ric. II. st. 2, c. 5 (not assented to by the Commons, but appearing upon the parliament roll), directed against unlicensed preachers. After the invention of printing the ecclesiastical censorship was still asserted, but only as collateral with the censorial rights of the Crown, claimed by virtue of its general prerogative. After the Reformation the greater part of the rights of censorship passed to the Crown, which at the same time assumed the power of granting by letters patent the right of printing or selling books as a monopoly. The grant, if made to the author himself, was an equivalent of copyright; if made to a person other than the author, it seems to have always been subject to the author's copyright as it existed at common law.

Censorship was either restrictive or corrective, i.e. it interfered to restrict or prevent publication, or it enforced penalties after publication. Repression of free discussion was regarded as so necessary a part of government that Sir Thomas More in his Utopia makes it punishable with death for a private individual to criticize the conduct of the ruling power. Under Mary printing was confined to members of the Stationers' Company, founded by royal charter in 1556. Under Elizabeth the Star Chamber assumed the right to confine printing to London, Oxford and Cambridge, to limit the number of printers and presses, to prohibit all publications issued without proper licence, and to enter houses to search for unlicensed presses and publications (Order of 1585, Strype's Whitgift, app. 94). The search for unlicensed presses or publications was entrusted to an officer called the “messenger of the press.” In 1637 was issued an order of the Star Chamber forbidding the importation of books printed abroad to the scandal of religion or the Church or the government, and the printing of any book not first lawfully licensed. Law books were to be licensed by one of the chief justices or the chief baron, books of history and state affairs by one of the secretaries of state, of heraldry by the earl marshal, of divinity, philosophy, poetry and other subjects by the archbishop of Canterbury or the bishop of London, or the chancellors or vice-chancellors of the universities. There were to be only twenty master printers and four letter-founders. The punishment was at the discretion of the court (Rushworth, Historical Collections, vol. iii. app. 306). The same principle of press restriction was carried out by the Long Parliament after the abolition of the Star Chamber, and it was an ordinance of that body issued in 1643 that called forth Milton's Areopagitica, a Speech for the Liberty of Unlicensed Printing, itself an unlicensed book. The parliament appointed committees for printing, who appointed licensers, but the licensing was really left in a great measure to the wardens of the Stationers' Company. At the Restoration Sir John Birkenhead acted as licenser, appointed apparently under the general prerogative. It was, no doubt, too, under the general prerogative that Charles II., by a proclamation in 1660, called in and suppressed Milton's Defensio pro populo anglicano. Then followed the Licensing Act of 1662 (13 & 14 Car. II. c. 33), limited to two years. The provisions as to importation of books, the appointment of licensers, and the number of printers and founders were practically re-enactments of the similar provisions in the Star Chamber order of 1637. Printing presses were not to be set up without notice to the Stationers' Company. A king's messenger had power by warrant of the king or a secretary of state to enter and search for unlicensed presses and printing. Severe penalties by fine and imprisonment were denounced against offenders. The act was successively renewed up to 1679. Under the powers of the act Sir Roger L'Estrange was appointed licenser, and the effect of the supervision was that practically the newspaper press was reduced to the London Gazette. The objections made to lines 594-599 of the first book of Paradise Lost by the archbishop of Canterbury's chaplain, acting as licenser, are well known. The act expired in 1679, and for the remainder of the reign of Charles II., as in the reign of George III., the restrictions on the press took the form of prosecutions for libel. In 1685 the Licensing Act was renewed for seven years (1 Jac. II. c. 8, § 15). No mention of the liberty of the press was made in the Bill of Rights. On the expiration of the Licensing Act in 1692 it was continued till the end of the existing session of parliament (4 & 5 Will. and Mary, c. 24, § 14). In 1695 the Commons refused to renew it. The immediate effect of this was to lay authors open to the attacks of literary piracy, and in 1709 the first Copyright Act (8 Anne, c. 19) was enacted for their protection. The power of a secretary of state to issue a warrant, whether general or special, for the purpose of searching for and seizing the author of a libel or the libellous papers themselves—a power exercised by the Star Chamber and confirmed by the Licensing Act—was still asserted, and was not finally declared illegal until the case of Entick v. Carrington in 1765 (St. Tr. xix. 1030). In 1776 the House of Commons came to a resolution in accordance with this decision. The compulsory stamp duty on newspapers was abandoned in 1855 (18 Vict. c. 27), the duty on paper in 1861 (24 Vict. c. 20), the optional duty on newspapers in 1870 (33 & 34 Vict. c. 38). From that time the English press may be said to date its complete freedom, which rests rather upon a constitutional than a legal foundation. It is not confirmed by any provision of the supreme legislative authority, as is the case in many countries. A declaration in favour of the liberty of the press is usually a prominent feature in the written constitutions of foreign states.

The few existing restrictions on the liberty of the press are presumed to be imposed for the public benefit. They are in some cases of great historical interest. The rights of private persons are in general sufficiently protected in one direction by the law of Libel (q.v.), in another by the law of Copyright (q.v.), while the criminal law provides for the cases of press offences against morality, public justice, &c. Thus the courts have power to punish sumrnarily as a contempt the publication of comments upon proceedings sub judice

  1. The principle of the censorship is still uncompromisingly maintained by the Roman Catholic Church; and this, though in general binding only in foro conscientiae, has necessarily had considerable importance in states which recognize the papacy as an independent power relations with which are established by concordat. Thus in Italy, under the Sardinian constitution of 1848, Bibles, catechisms and liturgical words had to be licensed by the bishop. The principle of the censorship, consecrated anew in Pope Pius IX.'s Syllabus of 1864, was reaffirmed in the apostolic constitution Officiorum of Leo XIII. and in 1907 in the encyclical Pascendi of Pius X. This last expresses “the highest esteem for this institution of censors” and orders censors to be appointed in all episcopal curias for the revision of books intended for publication, at the same time directing that their names shall not be made known to the authors of the books condemned. (See also Index Librorum Prohibitorum.)