Works of the late Doctor Benjamin Franklin/An Account of the higheſt Court of Judicature in Pennſylvania, viz. the Court of the Preſs

by Benjamin Franklin

 

AN ACCOUNT OF THE HIGHEST COURT OF JUDICATURE IN PENNSYLVANIA, VIZ.

THE COURT OF THE PRESS.

POWER OF THIS COURT.

 

IT may receive and promulgate accuſations of all kinds, againſt all perſons and characters among the citizens of the ſtate, and even againſt all inferior courts; and may judge, ſentence, and condemn to infamy, not only private individuals, but public bodies, &c. with or without enquiry or hearing, at the court's diſcretion.

In whoſe favour, or for whoſe emolument this court is eſtabliſhed.

In favour of about one citizen in five hundred who by education, or practice in ſcribbling, has acquired a tolerable ſtyle as to grammar and conſtruction, ſo as to bear printing; or who is poſſeſſed of a preſs and a few types. This five hundredth part of the citizens have the privilege of accuſing and abuſing the other four hundred and ninety-nine parts, at their pleaſure; or they may hire out their pen and preſs to others, for that purpoſe.

Practice of this court.

It is not governed by any of the rules of the common courts of law. The accuſed is allowed no grand jury to judge of the truth of the accuſation before it is publicly made; nor is the name of the accuſer made known to him; nor has he an opportunity of confronting the witneſſes againſt him, for they are kept in the dark, as in the Spaniſh court of inquiſition. Nor is there any petty jury of his peers ſworn to try the truth of the charges. The proceedings are alſo ſometimes ſo rapid, that an honeſt good citizen may find himſelf ſuddenly and unexpectedly accuſed, and in the fame morning judged and condemned, and ſentence pronounced againſt him that he is a rogue and a villain. Yet if an officer of this court receives the ſlighteſt check for miſconduct in this his office, he claims immediately the rights of a free citizen by the conſtitution, and demands to know his accuſer, to confront the witneſſes, and to have a fair trial by a jury of his peers,

The foundation of its authority.

It is ſaid to be founded on an article in the ſtate conſtitution, which eſtabliſhed the liberty of the preſs——a liberty which every Pennſylvanian would fight and die for, though few of us, I believe, have diſtinct ideas of its nature and extent. It ſeems, indeed, ſomewhat like the liberty of the preſs, that felons have, by the common law of England before conviction; that is, to be either preſſed to death or hanged. If, by the liberty of the preſs, were underſtood merely the liberty of diſcuſſing the propriety of public meaſures and political opinions, let us have as much of it as you pleaſe; but if it means the liberty of affronting, calumniating, and defaming one another, I, for my part, own myſelf willing to part with my ſhare of it, whenever our legiſlators ſhall pleaſe ſo to alter the law; and hall cheerfully conſent to exchange my liberty of abuſing others, for the privilege cf not being abuſed myſelf.

By whom this court is commiſſioned or conſtituted.

It is not by any commiſſion from the ſupreme executive council, who might previouſly judge of the abilities, integrity, knowledge, &c. of the perſon to be appointed to this great truſt, of deciding upon the characters and good fame of the citizens: for this court is above that council, and may accuſe, judge, and condemn it at pleaſure. Nor is it hereditary, as is the court of dernier reſort in the peerage of England. But any man who can procure pen, ink, and paper, with a preſs, a few types, and a huge pair of blacking balls, may commiſſionate himſelf, and his court is immediately eſtabliſhed in the plenary poſſeſſion and exerciſe of its rights. For if you make the leaſt complaint of the judge's conduct, he daubs his blacking balls in your face wherever he meets you: and beſides tearing your private character to ſplinters, marks you out for the odium of the public, as an enemy to the liberty of the preſs.

Of the natural ſupport of this court.

Its ſupport is founded in the depravity of ſuch minds as have not been mended by religion, nor improved by good education.

There is a luſt in man no charm can tame,
Of loudly publiſhing his neighbour's ſhame.

Hence,

On eagles' wings, immortal ſcandals fly,
While virtuous actions are but born and die.

Dryden.

Whoever feels pain in hearing a good character of his neighbour, will feel a pleaſure in the reverſe. And of thoſe who, deſpairing to riſe to diſtinction by their virtues, are happy if others can be depreſſed to a level with themſelves, there are a number ſufficient in every great town to maintain one of theſe courts by their ſubſcription. A ſhrewd obſerver once ſaid, that in walking the ſtreets of a ſlippery morning, one might ſee where the good-natured people lived, by the aſhes thrown on the ice before the doors: probably he would have formed a different conjecture of the temper of thoſe whom he might find engaged in ſuch ſubſcriptions.

Of the checks proper to be eſtabliſhed againſt the abuſes of power in thoſe courts.

Hitherto there are none. But ſince ſo much has been written and publiſhed on the federal conſtitution; and the neceſſity of checks, in all other parts of good government, has been ſo clearly and learnedly explained, I find myſelf ſo far enlightened as to ſuſpect ſome check may be proper in this part alſo: but I have been at a loſs to imagine any that may not be conſtrued an infringement of the ſacred liberty of the preſs. At length, however, I think I have found one, that, inſtead of diminiſhing general liberty, ſhall augment it; which is, by reſtoring to the people a ſpecies of liberty of which they have been deprived by our laws, I mean the liberty of the cudgel! In the rude ſtate of ſociety prior to the exiſtence of laws, if one man gave another ill-language, the affronted perſon might return it by a box on the ear; and if repeated, by a good drubbing; and this without offending againſt any law: but now the right of making ſuch returns is denied, and they are puniſhed as breaches of the peace, while the right of abuſing ſeems to remain in full force; the laws made againſt it being rendered ineffectual by the liberty of the preſs.

My propoſal then is, to leave the liberty of the preſs untouched, to be exerciſed in its full extent, force, and vigour, but to permit the liberty of the cudgel to go with it, pari paſſu, Thus, my fellow citizens, if an impudent writer attacks your reputation—dearer perhaps to you than your life, and puts his name to the charge you may go to him as openly, and break his head. If he conceals himſelf behind the printer, and you can nevertheleſs diſcover who he is, you may, in like manner way-lay him in the night, attack him behind, and give him a good drubbing. If your adverſary hires better writers than himſelf, to abuſe you more effectually, you may hire brawney porters, ſtronger than yourſelf, to aſſiſt you in giving him a more effectual drubbing. Thus far goes my project, as to private reſentment and retribution. But if the public ſhould ever happen to be affronted, as it ought to be, with the conduct of ſuch writers, I would not adviſe proceeding immediately to theſe extremities, but that we ſhould in moderation content ourſelves with tarring and feathering, and toſſing them in a blanket.

If, however, it ſhould be thought that this propoſal of mine may diſturb the public peace, I ſhould then humbly recommend to our legiſlators to take up the conſideration of both liberties, that of the preſs, and that of the cudgel; and by an explicit law mark their extent and limits: and at the ſame time that they ſecure the perſon of a citizen from aſſaults, they would like wiſe provide for the ſecurity of his reputation.