1789 Franklin Court of the Press · Founding Made Plain

1An Account of the Supremest Court of Judicature

2in Pennsylvania, viz.,

3The Court of the Press.

4Power of this Court.

5It may receive and promulgate accusations

6 of all kinds,

7 against all persons and characters

8 among the citizens of the State,

9 and even against all inferior courts;

10 and may judge, sentence, and condemn to infamy,

11 not only private individuals,

12 but public bodies, &c.,

13 with or without inquiry or hearing,

14 at the court’s discretion.

15In whose Favour

16 and for whose Emolument

17 this Court is established.

18In favour of about one citizen in five hundred,

19 who,

20 by education or practice in scribbling,

21 has acquired a tolerable style

22 as to grammar and construction,

23 so as to bear printing;

24 or who is possessed

25 of a press and a few types.

26This five hundredth part of the citizens

27 have the privilege

28 of accusing and abusing

29 the other four hundred and ninety-nine parts

30 at their pleasure;

31 or they may hire out

32 their pens and press

33 to others

34 for that purpose.

35Practice of the Court.

36It is not governed

37 by any of the rules

38 of common courts of law.

39The accused is allowed no grand jury

40 to judge of the truth of the accusation

41 before it is publicly made,

42 nor is the Name of the Accuser

43 made known to him,

44 nor has he an Opportunity

45 of confronting the Witnesses against him;

46 for they are kept in the dark,

47 as in the Spanish Court of Inquisition.

48Nor is there any petty Jury of his Peers,

49 sworn to try the Truth of the Charges.

50The Proceedings are also sometimes so rapid,

51 that an honest, good Citizen

52 may find himself

53 suddenly and unexpectedly accus’d,

54 and in the same Morning

55 judg’d and condemn’d,

56 and sentence pronounc’d against him,

57 that he is a Rogue and a Villain.

58Yet,

59 if an officer of this court

60 receives the slightest check

61 for misconduct in this his office,

62 he claims immediately

63 the rights of a free citizen

64 by the constitution,

65 and demands to know his accuser,

66 to confront the witnesses,

67 and to have a fair trial

68 by a jury of his peers.

69The Foundation of its Authority.

70It is said to be founded

71 on an Article of the Constitution

72 of the State,

73 which establishes

74 the Liberty of the Press;

75 a Liberty

76 which every Pennsylvanian

77 would fight and die for;

78 tho’ few of us, I believe,

79 have distinct Ideas

80 of its Nature and Extent.

81It seems indeed somewhat like

82 the Liberty of the Press

83 that Felons have,

84 by the Common Law of England,

85 before Conviction,

86 that is,

87 to be press’d to death or hanged.

88If by the Liberty of the Press

89 were understood merely

90 the Liberty of discussing

91 the Propriety of Public Measures

92 and political opinions,

93 let us have as much of it

94 as you please:

95But if it means the Liberty

96 of affronting, calumniating,

97 and defaming one another,

98 I, for my part,

99 own myself willing

100 to part with my Share of it

101 when our Legislators shall please

102 so to alter the Law,

103 and shall cheerfully consent

104 to exchange my Liberty

105 of Abusing others

106 for the Privilege

107 of not being abus’d myself.

108By Whom this Court is commissioned

109 or constituted.

110It is not by any Commission

111 from the Supreme Executive Council,

112 who might previously judge

113 of the Abilities, Integrity, Knowledge, &c.

114 of the Persons to be appointed

115 to this great Trust,

116 of deciding

117 upon the Characters

118 and good Fame

119 of the Citizens;

120 for this Court is above that Council,

121 and may accuse, judge, and condemn it,

122 at pleasure.

123Nor is it hereditary,

124 as in the Court of dernier Resort,

125 in the Peerage of England.

126But any Man

127 who can procure Pen, Ink, and Paper,

128 with a Press,

129 and a huge pair of Blacking Balls,

130 may commissionate himself;

131 and his court is immediately established

132 in the plenary Possession

133 and exercise of its rights.

134For,

135 if you make the least complaint

136 of the judge’s conduct,

137 he daubs his blacking balls

138 in your face

139 wherever he meets you;

140 and, besides tearing your private character

141 to flitters,

142 marks you out

143 for the odium of the public,

144 as an enemy

145 to the liberty of the press.

146Of the natural Support of these Courts.

147Their support is founded

148 in the depravity of such minds,

149 as have not been mended by religion,

150 nor improved by good education;

151There is a Lust in Man no Charm can tame,

152 Of loudly publishing his Neighbour’s Shame.

153Hence;

154On Eagle’s Wings immortal Scandals fly,

155 While virtuous Actions are but born and die.

156Dryden.

157Whoever feels pain

158 in hearing a good character of his neighbour,

159 will feel a pleasure in the reverse.

160And of those

161 who, despairing to rise into distinction

162 by their virtues,

163 are happy

164 if others can be depressed

165 to a level with themselves,

166 there are a number sufficient

167 in every great town

168 to maintain one of these courts

169 by their subscriptions.

170A shrewd observer once said,

171 that,

172 in walking the streets

173 in a slippery morning,

174 one might see

175 where the good-natured people lived

176 by the ashes thrown on the ice

177 before their doors;

178 probably he would have formed

179 a different conjecture

180 of the temper of those

181 whom he might find engaged

182 in such a subscription.

183Of the Checks proper to be established

184 against the Abuse of Power

185 in these Courts.

186Hitherto there are none.

187But since so much has been written and published

188 on the federal Constitution,

189 and the necessity of checks

190 in all other parts of good government

191 has been so clearly

192 and learnedly explained,

193 I find myself so far enlightened

194 as to suspect

195 some check may be proper

196 in this part also;

197 but I have been at a loss

198 to imagine any

199 that may not be construed

200 an infringement

201 of the sacred liberty of the press.

202At length, however,

203 I think I have found one

204 that,

205 instead of diminishing general liberty,

206 shall augment it;

207 which is,

208 by restoring to the people

209 a species of liberty,

210 of which they have been deprived

211 by our laws,

212 I mean the liberty of the cudgel.

213In the rude state of society

214 prior to the existence of laws,

215 if one man gave another ill language,

216 the affronted person would return it

217 by a box on the ear,

218 and, if repeated,

219 by a good drubbing;

220 and this

221 without offending against any law.

222But now the right

223 of making such returns is denied,

224 and they are punished

225 as breaches of the peace;

226 while the right of abusing

227 seems to remain in full force,

228 the laws made against it

229 being rendered ineffectual

230 by the liberty of the press.

231My proposal then is,

232 to leave the liberty of the press untouched,

233 to be exercised

234 in its full extent, force, and vigor;

235 but to permit the liberty of the cudgel

236 to go with it pari passu.

237Thus, my fellow-citizens,

238 if an impudent writer

239 attacks your reputation,

240 dearer to you perhaps than your life,

241 and puts his name to the charge,

242 you may go to him as openly

243 and break his head.

244If he conceals himself behind the printer,

245 and you can nevertheless discover who he is,

246 you may in like manner

247 way-lay him in the night,

248 attack him behind,

249 and give him a good drubbing.

250Thus far goes my project

251 as to private resentment and retribution.

252But if the public should ever happen

253 to be affronted,

254 as it ought to be,

255 with the conduct of such writers,

256 I would not advise proceeding immediately

257 to these extremities;

258 but that we should in moderation

259 content ourselves

260 with tarring and feathering,

261 and tossing them in a blanket.

262If, however,

263 it should be thought

264 that this proposal of mine

265 may disturb the public peace,

266 I would then humbly recommend

267 to our legislators

268 to take up the consideration

269 of both liberties,

270 that of the press,

271 and that of the cudgel,

272 and by an explicit law

273 mark their extent and limits;

274 and, at the same time

275 that they secure the person of a citizen

276 from assaults,

277 they would likewise provide

278 for the security

279 of his reputation.