hitherto been done in regard to libels, it is very certain that too much pains cannot be taken to draw a line that will in future prevent anxiety or misunderstanding; a line by which the writer will know whether or not he transgresses, and by which prosecutors, judges, and juries, may know how they are to proceed.

Every right enjoyed by man in a state of society is limited by law, as well as in many cases by custom, and by what is found to be to the general advantage to consider as a regulation. Law can never apply to many of the lesser nicities of human affairs, which are regulated by the general sentiment and feeling, out of which arises custom or practice, and therefore there are a vast number of things that are just as completely forbidden as if they were against a positive statute; and it is to be observed, that there is a still more curious distinction arises from the circumstance of an action being necessary or useful to the actor, which use or necessity renders fair what would otherwise be considered as improper; and in the case of speaking and writing, these minute regulations are much more important than any written law.

If in treating this subject I give some examples

that are laughable, it is not through levity, but the better to illustrate what I aim at demonstra

ting.

If a man finds it necessary, for the purpose of clearing up his own conduct, to relate a fact injurious to another man, which under different circumstances would be punished as a libel, he will be justified on the ground of necessity; though, with respect to the person injured, there is no difference whatever.

If, for example, I am in a house of bad fame, if a murder is unfortunately there committed, and I am accused of it, but if I can clear myself by discovering that a married lady, hitherto living in good repute, by accident happened to be there, I shall not be guilty of any libel in publishing the fact which will be to her eternal shame and ruin, but which, if I did without necessity publish, would be punishable.

The utility, or absence of utility to the person propagating an injurious report, is so much connected with speaking or writing, that it must in every case be considered,

If I see two men, with whom I am no way connected, employed in making a bargain, if I say to the seller that he sells too cheap, that he is wronging himself, and will get more from some one else,

I do an injury to the person wanting to purchase;

though what I say may be very true, I am highly blamable, for it is not my business: but if I offer a larger sum myself, though I do the same injury to the same man as before, I do not incur the same blame. In the latter case I am not acting to injure him, I am trying to benefit myself in a fair way.

If a lodger in an apartment who had no turn for music happened to live in an apartment contiguous to one who had a very delicate ear, and if he unfortunately, by way of learning to play on the violin, kept scraping constantly so as to make the other quite miserable, and greatly annoy him, he would do him an injury, but still the conduct would neither be illegal, nor a just cause for offence; but if, instead of trying to acquire a new talent by this infernal noise, he were to make a disturbance, by constantly whistling on a cat-call, or springing a watchman's rattle, the inconvenience sustained might probably not be so great to the unfortunate neighbour, but his cause of complaint would be incomparably greater. He might then have even a legal remedy.

When some cobler or other artizan, takes it into his head to go to pass the day abroad, and to shut up in his garret a half-starved dog to annoy the

whole neighbourhood, (which unfortunately is frequently the case), he does that neighbourhood an injury, he makes a certain number of persons less happy for a certain portion of time; but as he has a justifiable motive, namely the preservation of his dog, he is not punishable.

In speaking or writing, a motive, and a justifable motive, is necessary, in all cases of injury complained of.

The liberty of the press is no doubt the foundation of all other liberty in nations so situated as this is, and as such it is very highly valued, and ought to be very carefully preserved; but then we must examine what is the true meaning of the term Liberty of the Press. Liberty to write is certainly the same as the liberty of speech, from which it differs not in any respect in essence, though it does in its mode; the one being the communication or expression of thoughts by sound, and the other by visible figures; the one addressing itself to the understanding by means of the ear, and the other by means of the eye; the one to a small number around, the other to the world at large. This is so simple a truth, that it may appear useless to state it, yet the utility of that statement is nevertheless real; for though in their

essence, liberty of speech and of the press are the same, there are some great distinctions.

Speaking is a right used by all, and so constantly, that the use and abuse of it are perfectly and generally understood, particularly, as it is coeval with mankind, and universal.

Writing is less generally practised, and is less ancient. Now, the very circumstance of the one being universal, and the other not, makes a difference necessary in the law that regulates the rights; not that the rights are in themselves in any respect different, but that, from circumstances, the one is more liable to be abused than the other.

As all persons can speak, they are to a certain degree upon an equality, and the one keeps the other in respect, to avoid retaliation; but in writing, some men have no talent, and even if they had ability, they have no means of publishing their writings; while others make writing a trade and occupation, and are furnished with periodical means of giving their writings publicity.

In writing, then, there is a great inequality in the power of annoyance, and therefore the law ought to be very strict. It is certainly necessary to prevent mankind from being annoyed and made