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 FAVOR OR FOR WHOSE EMOLUMENT
THIS COURT IS ESTABLISHED
In favor of about one citizen in 500, who by education, or
practice in scribbling, has acquired a tolerable stile as to grammar
and construction so as to bear printing; or who is possessed of a
press and a few types. This 500th part of the citizens have the
privilege of accusing and abusing the other 499 parts, at their
pleasure; or they may hire out their pens and press to others for
that purpose.
PRACTICE OF THE COURT
It is not governed by any of the rules of 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 same 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 establishes 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 shall chearfully consent to exchange
my liberty of abusing others for the privilege of 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 persons 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 [last] 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 slitters, marks you out for the
odium of the public, as an enemy to the liberty of the press.
OF THE NATURAL SUPPORT FOR THESE
COURTS
Their 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 eagle's 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 into distinction by their virtues, and are happy
if others can be depressed on a level with themselves, there are a
number sufficient in every great town to maintain one of these courts
by their subscriptions. -- A shrewd observer once said that in
walking the streets in a slippery morning, one might see where the
good natured people lived by the ashes thrown on the ice before their
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 ABUSE OF POWER IN THESE 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 [on equal terms].
Thus my fellow-citizens, if an impudent writer attacks your
reputation, dearer to you perhaps 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 a like manner way-lay him in the
night, attack him behind, and give him a good drubbing. If your
adversary hire better writers than himself to abuse you the more
effectually, you may hire brawny 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 would 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 likewise provide for the
security of his reputation.
The Federal Gazette, September
12, 1789