Nothing renders the crime of high
treason more arbitrary than declaring people guilty of it for indiscreet
speeches. Speech is so subject to interpretation; there is so great a
difference between indiscretion and malice; and frequently so little is
there of the latter in the freedom of expression, that the law can
hardly subject people to a capital punishment for words unless it
expressly declares what words they are.
[34]
Words do not constitute an overt act; they remain only in idea. When
considered by themselves, they have generally no determinate
signification; for this depends on the tone in which they are uttered.
It often happens that in repeating the same words they have not the same
meaning; this depends on their connection with other things, and
sometimes more is signified by silence than by any expression whatever.
Since there can be nothing so equivocal and ambiguous as all this, how
is it possible to convert it into a crime of high treason? Wherever this
law is established, there is an end not only of liberty, but even of its
very shadow.
In the manifesto of the late Czarina against the family of the
D'Olgoruckys,
[35]
one of these princes is condemned to death for having
uttered some indecent words concerning her person: another, for having
maliciously interpreted her imperial laws, and for having offended her
sacred person by disrespectful expressions.
Not that I pretend to diminish the just indignation of the public
against those who presume to stain the glory of their sovereign; what I
mean is that, if despotic princes are willing to moderate their power, a
milder chastisement would be more proper on those occasions than the
charge of high treason — a thing always terrible even to innocence
itself.
[36]
Overt acts do not happen every day; they are exposed to the eye of
the public; and a false charge with regard to matters of fact may be
easily detected. Words carried into action assume the nature of that
action. Thus a man who goes into a public market-place to incite the
subject to revolt incurs the guilt of high treason, because the words
are joined to the action, and partake of its nature. It is not the words
that are punished, but an action in which words are employed. They do
not become criminal, but when they are annexed to a criminal action:
everything is confounded if words are construed into a capital crime,
instead of considering them only as a mark of that crime.
The Emperors Theodosius, Arcadius, and Honorius wrote thus to
Rufinus, who was prfectus prætorio: "Though a man should happen to speak
amiss of our person or government, we do not intend to punish him:
[37]
if he has spoken through levity, we must despise him; if through folly,
we must pity him; and if he wrongs us, we must forgive him. Therefore,
leaving things as they are, you are to inform us accordingly, that we
may be able to judge of words by persons, and that we may duly consider
whether we ought to punish or overlook them."
