Benjamin Franklin1706-1790 | Letter to the Editor on Freedom of Speech, 1722 | "Apology for Printers," 1731
Synopsis
Benjamin Franklin was a printer, scientist, inventor, civil servant, and one of the Founding Fathers of the United States. Though Franklin did not take part in the drafting and debate over the Bill of Rights, he was defending the freedom of speech and the press more than half a century before America fought for its independence. As a teenager, Franklin submitted a letter to his brother’s newspaper under the pseudonym “Silence Dogood” vigorously denouncing governments that restrict speech. Later, when he ran a press of his own, he issued a somewhat more subdued “Apology for Printers” in his newspaper, the Pennsylvania Gazette, responding to complaints about certain advertisements he was willing to publish.
Contents
1. Letter to the Editor on Freedom of Speech. The New England Courant 49, July 9, 1722.
2. “Apology for Printers.” Pennsylvania Gazette, June 10, 1731.
3. [Freedom of Speech and the Press]. Pennsylvania Gazette, November 17, 1737.
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Letter to the Editor on Freedom of Speech. The New England Courant 49, July 9, 1722.
This essay is one of a series of letters Franklin submitted to his brother’s newspaper under the pen-name “Silence Dogood.” The text is from The Electric Benjamin Franklin.
S I R, No. VIII.
I prefer the following Abstract from the London Journal to any Thing of my own, and therefore shall present it to your Readers this week without any further Preface.
WITHOUT Freedom of Thought, the can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or control the Right of another. And this is the only Check it ought to suffer, and the only bounds it ought to know.
This sacred Privilege is to essential to free Governments, that the Security of Property, and the Freedom of Speech always go together; and in those wretched Countries where a Man cannot call his Tongue his own, he can scarce call any Thing else his own. Whoever would overthrow the Liberty of a Nation, must begin by subduing the Fteeness of Speech; a Thing terrible to Publick Traytors.
This Secret was so well known to the Court of King Charles the First, that his wicked Ministry procured a Proclamation, to forbid the People to talk of Parliaments, which those Traytors had laid aside. To assert thee undoubted Right of the Subject, and defend his Majesty’s legal Prerogative, was called Disaffecton, and punished as Sedition. Nay, People were forbid to talk of Religion in their Families. For the Priest had combined with the Ministers to cook up Tyranny, and Tuppress Truth and the Law, while the late King James, when Duke of York, went avowedly to Mass, Men were fined, imprisoned and undone, for saying he was a Papist: And that King Charles the Second might live more securely a Papist, there was an Act of Parliament made, declaring it Treason to say that he was one.
That Men ought to speak well of their Governours is true, while their Governours, deserve to be well spoken of, but to do publick Mischief, without hearing of it , is only the Prerogative and Felicity of Tyranny: A free People will be shewing that they are so, by their Freedom of Speech.
The Administration of Government, is nothing else but the Attendence of the Trustees of the Peopleupon the Interest and Affairs of the People: And as it is the Part and Business of the People, for whole Sake alone all publick Matters are, or ought to be transacted, to see whether they be well or ill transacted, so it is the Interest, and ought to be the Ambition, of all honest Magistrates, to have their Deeds openly examined, and Publickly scann’d: Only the wicked Governours of Men dread what is said of them; Audivit Tiberis probra queis lacerabitur, atque perculsus est. The publick Censure was true, else he had not felt it bitter.
Freedom of Speech is ever the Symptom, as well
as the Effect of a good Government. In old Rome, all was left to the Judgment and Pleasure of the People, who examined the publick Proceedings with such Discretion, & censured those who administred them with such Equity and Mildness, that in the space of Three Hundred Years, not five publick Ministers suffered unjustly. Indeed whenever the Commons proceeded to Violence, the great Ones had been the Agressors.
GUILT only dreads Liberty of Speech, which drags it out of its lurking Holes, and exposes its Deformity and Horrour to Day-light. Horatius, Valerius, Cincinnatus, and other vertuous and undesigning Magistrates of the Roman Commonwealth, had nothing to fear from Liberty of Speech. Their virtuous Administration, the more it was examin’d, the more it brightened and gain’d by Enquiry. When Valerius in particular, was accused upon some flight grounds of affecting the Diadem; he, who was the first Minister of Rome, does not accuse the People for examining his Conduct, but approved his Innocence in a Speech to them; and gave such Satisfaction to them, and gained such Popularitty to himself, that they gave him a new Name; inde cognomen factumi Publicola [illegible], to denote that he was their Favourite and their Friend—–Late deinde leges—-Ante omnes de provocatoineADVERSUS MAGISTRATUST AD POPULUM, Livii, lib. z. Cap. 8.
But things afterwards took another Turn. Rome with the Loss of its Liberty, lost also its Freedom of Speech; then Mens Words began to be feared and watched; and then first began the poysonous Race of Informers, banished indeed under the righteous Administration of Titus, Narrva, Trajan, Aurelius, & c. but encouraged and enriched under the vile Ministry of Sejanus, Tigillinis, Pallas, and Cleander; Queri libet, quod in secreta, nostra non inquirant principes, nist quos Odimus, says Pliny to Trajan.
The best Princes have ever encouraged and Promoted Freedom of Speech; they know that upright Measures would defend themselves, and that all upright Men would defend them. Tacitus, speaking of the Reign of some of the Princes above mention’d says with Extasy, Rara Temporum felicitate, ubi sentire qua velis, & qua sentias dicere lices: A blessed Time when you might think what you would, and speak what you thought.
I doubt not but old Spencer and his Son, who were the Chief Ministers and Betryers of Edward the Second, would have been very glad to have stopped the Mouths of all the honest Men in England. They dreaded to be called Traytors, because they were Traytors. I dare say, Queen Elizabeth’sWalsingham, who deserved no Reproaches, feared none. Misrepressentation of publick Measures is easily overthrown, by representing publick Measures truly; when they are honest, they ought to be publickly known, that they may be publickly commended, but if they are knavish or pernicious, they ought to be publickly exposed, in order to be pubickly detested.
Yours, &c,
SILENCE DOGOOD.
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“Apology for Printers.” Pennsylvania Gazette, June 10, 1731.
This essay was published in Franklin’s own newspaper under his own name. It responds to criticism of his press for publishing irreverent advertisements. The text is from the Founders Online, a part of the National Archives.
Being frequently censur’d and condemn’d by different Persons for printing Things which they say ought not to be printed, I have sometimes thought it might be necessary to make a standing Apology for my self, and publish it once a Year, to be read upon all Occasions of that Nature. Much Business has hitherto hindered the execution of this Design; but having very lately given extraordinary Offence by printing an Advertisement with a certain N.B. at the End of it,1 I find an Apology more particularly requisite at this Juncture, tho’ it happens when I have not yet Leisure to write such a thing in the proper Form, and can only in a loose manner throw those Considerations together which should have been the Substance of it.
I request all who are angry with me on the Account of printing things they don’t like, calmly to consider these following Particulars
1. That the Opinions of Men are almost as various as their Faces; an Observation general enough to become a common Proverb, So many Men so many Minds.
2. That the Business of Printing has chiefly to do with Mens Opinions; most things that are printed tending to promote some, or oppose others.
3. That hence arises the peculiar Unhappiness of that Business, which other Callings are no way liable to; they who follow Printing being scarce able to do any thing in their way of getting a Living, which shall not probably give Offence to some, and perhaps to many; whereas the Smith, the Shoemaker, the Carpenter, or the Man of any other Trade, may work indifferently for People of all Persuasions, without offending any of them: and the Merchant may buy and sell with Jews, Turks, Hereticks, and Infidels of all sorts, and get Money by every one of them, without giving Offence to the most orthodox, of any sort; or suffering the least Censure or Ill-will on the Account from any Man whatever.
4. That it is as unreasonable in any one Man or Set of Men to expect to be pleas’d with every thing that is printed, as to think that nobody ought to be pleas’d but themselves.
5. Printers are educated in the Belief, that when Men differ in Opinion, both Sides ought equally to have the Advantage of being heard by the Publick; and that when Truth and Error have fair Play, the former is always an overmatch for the latter: Hence they chearfully serve all contending Writers that pay them well, without regarding on which side they are of the Question in Dispute.
6. Being thus continually employ’d in serving all Parties, Printers naturally acquire a vast Unconcernedness as to the right or wrong Opinions contain’d in what they print; regarding it only as the Matter of their daily labour: They print things full of Spleen and Animosity, with the utmost Calmness and Indifference, and without the least Ill-will to the Persons reflected on; who nevertheless unjustly think the Printer as much their Enemy as the Author, and join both together in their Resentment.
7. That it is unreasonable to imagine Printers approve of every thing they print, and to censure them on any particular thing accordingly; since in the way of their Business they print such great variety of things opposite and contradictory. It is likewise as unreasonable what some assert, That Printers ought not to print any Thing but what they approve; since if all of that Business should make such a Resolution, and abide by it, an End would thereby be put to Free Writing, and the World would afterwards have nothing to read but what happen’d to be the Opinions of Printers.
8. That if all Printers were determin’d not to print any thing till they were sure it would offend no body, there would be very little printed.
9. That if they sometimes print vicious or silly things not worth reading, it may not be because they approve such things themselves, but because the People are so viciously and corruptly educated that good things are not encouraged. I have known a very numerous Impression of Robin Hood’s Songs go off in this Province at 2s. per Book, in less than a Twelvemonth; when a small Quantity of David’s Psalms (an excellent Version) have lain upon my Hands above twice the Time.
10. That notwithstanding what might be urg’d in behalf of a Man’s being allow’d to do in the Way of his Business whatever he is paid for, yet Printers do continually discourage the Printing of great Numbers of bad things, and stifle them in the Birth. I my self have constantly refused to print any thing that might countenance Vice, or promote Immorality; tho’ by complying in such Cases with the corrupt Taste of the Majority, I might have got much Money. I have also always refus’d to print such things as might do real Injury to any Person, how much soever I have been solicited, and tempted with Offers of great Pay; and how much soever I have by refusing got the Ill-will of those who would have employ’d me. I have heretofore fallen under the Resentment of large Bodies of Men, for refusing absolutely to print any of their Party or Personal Reflections. In this Manner I have made my self many Enemies, and the constant Fatigue of denying is almost insupportable.2 But the Publick being unacquainted with all this, whenever the poor Printer happens either through Ignorance or much Persuasion, to do any thing that is generally thought worthy of Blame, he meets with no more Friendship or Favour on the above Account, than if there were no Merit in’t at all. Thus, as Waller says,2a
Poets loose half the Praise they would have got
Were it but known what they discreetly blot;
Yet are censur’d for every bad Line found in their Works with the utmost Severity.
I come now to the particular Case of the N.B. above-mention’d, about which there has been more Clamour against me, than ever before on any other Account. In the Hurry of other Business an Advertisement was brought to me to be printed; it signified that such a Ship lying at such a Wharff, would sail for Barbadoes in such a Time, and that Freighters and Passengers might agree with the Captain at such a Place; so far is what’s common: But at the Bottom this odd Thing was added, N.B. No Sea Hens3 nor Black Gowns will be admitted on any Terms. I printed it, and receiv’d my Money; and the Advertisement was stuck up round the Town as usual. I had not so much Curiosity at that time as to enquire the Meaning of it, nor did I in the least imagine it would give so much Offence. Several good Men are very angry with me on this Occasion; they are pleas’d to say I have too much Sense to do such things ignorantly; that if they were Printers they would not have done such a thing on any Consideration; that it could proceed from nothing but my abundant Malice against Religion and the Clergy: They therefore declare they will not take any more of my Papers, nor have any farther Dealings with me; but will hinder me of all the Custom they can. All this is very hard!
I believe it had been better if I had refused to print the said Advertisement. However, ’tis done and cannot be revok’d. I have only the following few Particulars to offer, some of them in my Behalf, by way of Mitigation, and some not much to the Purpose; but I desire none of them may be read when the Reader is not in a very good Humour.
1. That I really did it without the least Malice, and imagin’d the N.B. was plac’d there only to make the Advertisement star’d at, and more generally read.
2. That I never saw the Word Sea-Hens before in my Life; nor have I yet ask’d the meaning of it; and tho’ I had certainly known that Black Gowns in that Place signified the Clergy of the Church of England, yet I have that confidence in the generous good Temper of such of them as I know, as to be well satisfied such a trifling mention of their Habit gives them no Disturbance.
3. That most of the Clergy in this and the neighbouring Provinces, are my Customers, and some of them my very good Friends; and I must be very malicious indeed, or very stupid, to print this thing for a small Profit, if I had thought it would have given them just Cause of Offence.
4. That if I have much Malice against the Clergy, and withal much Sense; ’tis strange I never write or talk against the Clergy my self. Some have observed that ’tis a fruitful Topic, and the easiest to be witty upon of all others. I can print any thing I write at less Charge than others; yet I appeal to the Publick that I am never guilty this way, and to all my Acquaintance as to my Conversation.
5. That if a Man of Sense had Malice enough to desire to injure the Clergy, this is the foolishest Thing he could possibly contrive for that Purpose.
6. That I got Five Shillings by it.
7. That none who are angry with me would have given me so much to let it alone.
8. That if all the People of different Opinions in this Province would engage to give me as much for not printing things they don’t like, as I can get by printing them, I should probably live a very easy Life; and if all Printers were every where so dealt by, there would be very little printed.
9. That I am oblig’d to all who take my Paper, and am willing to think they do it out of meer Friendship. I only desire they would think the same when I deal with them. I thank those who leave off, that they have taken it so long. But I beg they would not endeavour to dissuade others, for that will look like Malice.
10. That ’tis impossible any Man should know what he would do if he was a Printer.
11. That notwithstanding the Rashness and Inexperience of Youth, which is most likely to be prevail’d with to do things that ought not to be done; yet I have avoided printing such Things as usually give Offence either to Church or State, more than any Printer that has followed the Business in this Province before.
12. And lastly, That I have printed above a Thousand Advertisements which made not the least mention of Sea-Hens or Black Gowns; and this being the first Offence, I have the more Reason to expect Forgiveness.
I take leave to conclude with an old Fable, which some of my Readers have heard before, and some have not.
“A certain well-meaning Man and his Son, were travelling towards a Market Town, with an Ass which they had to sell. The Road was bad; and the old Man therefore rid, but the Son went a-foot. The first Passenger they met, asked the Father if he was not ashamed to ride by himself, and suffer the poor Lad to wade along thro’ the Mire; this induced him to take up his Son behind him: He had not travelled far, when he met others, who said, they were two unmerciful Lubbers to get both on the Back of that poor Ass, in such a deep Road. Upon this the old Man gets off, and let his Son ride alone. The next they met called the Lad a graceless, rascally young Jackanapes, to ride in that Manner thro’ the Dirt, while his aged Father trudged along on Foot; and they said the old Man was a Fool, for suffering it. He then bid his Son come down, and walk with him, and they travell’d on leading the Ass by the Halter; ’till they met another Company, who called them a Couple of sensless Blockheads, for going both on Foot in such a dirty Way, when they had an empty Ass with them, which they might ride upon. The old Man could bear no longer; My Son, said he, it grieves me much that we cannot please all these People: Let us throw the Ass over the next Bridge, and be no farther troubled with him.”
Had the old Man been seen acting this last Resolution, he would probably have been call’d a Fool for troubling himself about the different Opinions of all that were pleas’d to find Fault with him: Therefore, tho’ I have a Temper almost as complying as his, I intend not to imitate him in this last Particular. I consider the Variety of Humours among Men, and despair of pleasing every Body; yet I shall not therefore leave off Printing. I shall continue my Business. I shall not burn my Press and melt my Letters.4
Footnotes
1. The advertisement has not been found in the Gazette; it was probably a handbill.
2. bf expressed his policy fully in the autobiography: “In the Conduct of my Newspaper I carefully excluded all Libelling and Personal Abuse…. Whenever I was solicited to insert any thing of that kind, and the Writers pleaded as they generally did, the Liberty of the Press, and that a Newspaper was like a Stage Coach in which any one who would pay had a Right to a Place, my Answer was, that I would print the Piece separately if desired … but that I would not take upon me to spread his Detraction, and that having contracted with my Subscribers to furnish them with what might be either useful or entertaining, I could not fill their Papers with private Altercation … without doing them manifest Injustice.” Several apocryphal tales appeared soon after bf’s death to illustrate his independence as a printer; for two such anecdotes, see New York Weekly Visitor, ii (Dec. 22, 1810), 109; PMHB, xlviii(1924), 383.
2a Edmund Waller, Works (London, 1729), p. 238.
3. Sea-hens, or guillemots, a species of auk, make a great uproar in their “loomeries” or nesting grounds; they seem to be pugnaciously and noisily jealous of their respective nesting places. James Fisher and R. M. Lockley, Sea-Birds: An Introduction to the Natural History of the Sea-Birds of the North Atlantic (Boston, 1954), p. 269. In Scotland the term sea-hen is sometimes used of the crooner, or lyra, a fish which makes a croaking, plaintive sound when landed. John Jamieson, An Etymological Dictionary of the Scottish Language (new edit., Paisley, 1879), 1, 536; iii, 199. If bf’s advertiser had either meaning in mind when he linked “Sea-Hens” with “Black Gowns,” the insult to the clergy was the stronger.
4. Thomas Whitmarsh, criticized for something he printed, published a large part of this essay as his defense in the South-Carolina Gazette, Oct. 14, 1732.
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[On Freedom of Speech and the Press]. Pennsylvania Gazette, November 17, 1737
It is not known with certainty that this was written by Franklin. It was published in his newspaper, and it is consistent with other of his writings on government, but it is not explicitly attributed to him. The text is from The Works of Benjamin Franklin, available on google books.
Freedom of speech is a principal pillar of a free government ; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examina tion into the action of the magistrates ; this privilege in all ages has been, and always will be abused. The best of men could not escape the censure and envy of the times they lived in. Yet this evil is not so great as it may appear at first sight. A magistrate, who sincerely aims at the good of society, will always have the inclinations of a great majority on his side, and an impartial posterity will not fail to render him justice.
Those abuses of the freedom of speech are the excesses of liberty. They ought to be repressed ; but to whom dare we commit the care of doing it? An evil magistrate intrusted with power to punish for words, would be armed with a weapon the most de structive and terrible. Under pretence of pruning off the exuberant branches, he would be apt to destroy the tree. It is certain, that he who robs another of his moral reputation more richly merits a gibbet, than if he had plundered him of his purse on the highway. Augustus Caesar, under the specious pretext of preserving the character of the Romans from defamation, introduced the law whereby libelling was involved in the penalties of treason against the state. This law established his tyranny; and, for one mischief which it prevented, ten thousand evils, horrible and afflicting, sprung up in its place. Thenceforward every person’s life and fortune depended on the vile breath of informers. The con struction of words being arbitrary, and left to the decis ion of the judges, no man could write or open his mouth without being in danger of forfeiting his head.
One was put to death for inserting in his History the praises of Brutus ; another, for styling Cassius the last of the Romans. Caligula valued himself for being a notable dancer ; and to deny, that he excelled in that manly accomplishment, was high treason. This emperor raised his horse, the name of which was Incitatus, to the dignity of consul ; and, though history is silent, I do not question but it was a capital crime to show the least contempt for that high officer of state ! Sup pose, then, any one had called the prime minister a stupid animal; the emperor’s council might argue, that the malice of the libel was the more aggravated by its being true, and consequently more likely to excite the family of this illustrious magistrate to a breach of the peace, or to acts of revenge. Such a prosecution would to us appear ridiculous ; yet, if we may rely upon tradition, there have been formerly proconsuls in America, though of more malicious dispositions, hardly superior in understanding to the consul Incitatus, and who would have thought themselves libelled to be called by their proper names.
Nero piqued himself on his fine voice and skill in music ; no doubt a laudable ambition ! He performed in public, and carried the prize of excellence ; it was afterwards resolved by all the judges as good law, that whosoever would insinuate the least doubt of Nero’s preeminence in the noble art of fiddling, ought to be deemed a traitor to the state.
By the help of inferences, and inuendoes, treasons multiplied in a prodigious manner. Grief was treason ; a lady of noble birth was put to death for bewailing the death of her murdered son ; silence was declared an overt act, to prove the treasonable purposes of the heart ; looks were construed into treason ; a serene, open aspect was an evidence, that the person was pleased with the ca lamities that befell the emperor ; a severe, thoughtful countenance was urged against the man that wore it, as a proof of his plotting against the state ; dreams were often made capital offences. A new species of inform ers went about Rome, insinuating themselves into all companies to fish out their dreams, which the holy priests (O nefarious wickedness !) interpreted into high treason. The Romans were so terrified by this strange method of juridical and penal process, that, far from discovering their dreams, they durst not own that they slept. In this terrible situation, when every one had so much cause to fear, even fear itself was made a crime. Caligula, when he put his brother to death, gave it as a reason to the senate, that the youth was afraid of being murdered. To be eminent in any virtue, either civil or military, was the greatest crime a man could be guilty of. 0 virtutes, certissimum exitium.
These were some of the effects of the Roman law against libelling. Those of the British kings, that aimed at despotic power or the oppression of the subject, continually encouraged prosecutions for words.
Henry the Seventh, a prince mighty in politics, pro cured that act to be passed, whereby the jurisdiction of the Star-chamber was confirmed and extended. After wards Empson and Dudley, two voracious dogs of prey, under the protection of this high court, exercised the most merciless acts of oppression. The subjects were terrified from uttering their griefs, while they saw the thunder of the Star-chamber pointed at their heads. This caution, however, could not prevent several dangerous tumults and insurrections ; for, when the tongues of the people are restrained, they commonly discharge their resentments by a more dangerous organ, and break out into open acts of violence.
During the reign of Henry the Eighth, a high-spirited monarch, every light expression, which happened to displease him, was construed by his supple judges into a libel, and sometimes extended to high treason. When Queen Mary, of cruel memory, ascended the throne, the Parliament, in order to raise a fence against the violent prosecutions for words, which had rendered the lives, liberties, and properties of all men precarious, and per haps dreading the furious, persecuting spirit of this prin cess, passed an act whereby it was declared, ” That if a libeller doth go so high, as to libel against king or queen, by denunciation, the judges shall lay no greater fine on him than one hundred pounds, with two months’ imprisonment, and no corporal punishment. Neither was this sentence to be passed on him, except the ac cusation was fully proved by two witnesses, who were to produce a certificate of their good demeanor for the credit of their report.”
This act was confirmed by another, in the seventh year of the reign of Queen Elizabeth ; only the penalties were heightened to two hundred pounds and three months’ imprisonment. Notwithstanding, she rarely punished invectives, though the malice of the Papists was indefatigable in blackening the brightest characters with the most impudent falsehood. She was often heard to applaud that rescript of Theodosius; “If any person speak ill of the Emperor, through a foolish rashness and inadvertency, it is to be despised ; if out of madness, it deserves pity ; if from malice and aversion, it calls for mercy.”
Her successor, King James the First, was a prince of a quite different genius and disposition. He used to say, that, while he had the power of making judges and bishops, he could have what law and gospel he pleased. Accordingly, he filled those places with such as pro stituted their professions to his notions of prerogative. Among this number, and I hope it is no discredit to the profession of the law, its great oracle, Sir Edward Coke, appears. The Star-chamber, which, in the time of Elizabeth, had gained a good repute, became an in tolerable grievance in the reign of this learned monarch.
But it did not arrive at its meridian altitude till Charles the First began to wield the sceptre. As he had formed a design to lay aside parliaments, and subvert the popular part of the constitution, he very well knew, that the form of government could not be altered without laying a restraint on freedom of speech and the liberty of the press ; therefore he issued his royal mandate, under the great seal of England, whereby he commanded his subjects, under pain of his displeasure, not to prescribe to him any time for parliaments. Lord Clarendon, upon this occasion, is pleased to write, ” That all men took themselves to be prohibited, under the penalty of censure (the censure of the Star chamber, which few men cared to incur,) so much as to speak of parliaments, or so much as to mention, that parliaments were again to be called.”
The king’s ministers, to let the nation see they were absolutely determined to suppress all freedom of speech, caused a prosecution to be carried on by the attorney- general against three members of the House of Com mons, for words spoken in that House, Anno 1628. The members pleaded to the information, that expres sions in Parliament ought only to be examined and punished there. This notwithstanding, they were all three condemned as disturbers of the state. One of these gentlemen, Sir John Eliott, was fined two thou sand pounds, and sentenced to lie in prison till it was paid. His lady was denied admittance to him, even during his sickness ; consequently his punishment com prehended an additional sentence of divorce. This patriot, having endured many years’ imprisonment, sunk under the oppression, and died in prison. This was such a wound to the authority and rights of Parliament, that, even after the restoration, the judgment was re versed by Parliament.
That Englishmen of all ranks might be effectually intimidated from publishing their thoughts on any sub ject, except on the side of the court, his Majesty’s min isters caused an information, for several libels, to be exhibited in the Star-chamber against Messrs. Prynne, Burton, and Bastwick. They were each of them fined five thousand pounds, and adjudged to lose their ears on the pillory, to be branded on the cheeks with hot irons, and to suffer perpetual imprisonment ! Thus these three gentlemen, each of worth and quality in their several professions, viz. divinity, law, and physic, were, for no other offence, than writing on controvert ed points of church-government, exposed on public common signal rogues, or the most ordinary malefactors.
Such corporal punishments, inflicted with all the circumstances of cruelty and infamy, bound down all other gentlemen, under a servile fear of the like treat ment ; so that for several years no one durst publicly speak or write in defence of the liberties of the peo ple, which the king’s ministers, his privy council, and his judges had trampled under their feet. The spirit of the administration looked hideous and dreadful ; the hate and resentment, which the people conceived against it, for a long time lay smothered in their breasts, where those passions festered and grew venomous, and at last discharged themselves by an armed and vindictive hand.
King Charles the Second aimed at the subversion of the government, but concealed his designs under a deep hypocrisy ; a method which his predecessor, in the beginning of his reign, scorned to make use of. The father, who affected a high and rigid gravity, dis countenanced all barefaced immorality. The son, of a gay, luxurious disposition, openly encouraged it. Thus, their inclinations being different, the restraint laid on some authors, and the encouragement given to others, were managed after a different manner.
In this reign a licenser was appointed for the stage and the press ; no plays were encouraged but what had a tendency to debase the minds of the people. The original design of comedy was perverted ; it appeared in all the shocking circumstances of immodest double entendre, obscene description, and lewd representation. Religion was sneered out of countenance, and public spirit ridiculed as an awkward, old-fashioned virtue; the fine gentleman of the comedy, though embroidered all over with wit, was a consummate debauchee ; and a fine lady, though set off with a brilliant imagination, was an impudent coquette. Satire, which in the hands of Horace, Juvenal, and Boileau, was pointed with a gener ous resentment against vice, now became the declared foe of virtue and innocence. As the city of London, in all ages, as well as the time we are speaking of, was remarkable for its opposition to arbitrary power, the poets levelled all their artillery against the metropolis, in order to bring the citizens into contempt. An alder man was never introduced on the theatre, but under the complicated character of a sneaking, canting hypo crite, a miser and a cuckold ; while the court wits, with impunity, libelled the most valuable part of the nation. Other writers, of a different stamp, with great learning and gravity, endeavoured to prove to the Eng lish people, that slavery was jure divino. Thus the stage and the press, under the direction of a licenser, became battering engines against religion, virtue, and liberty. Those who had courage enough to write in their defence were stigmatized as schismatics, and punished as disturbers of the government.
But when the embargo on wit was taken off, Sir Richard Steele and Mr. Addison soon rescued the stage from the load of impurity it labored under ; with an inimitable address, they strongly recommended to our imitation the most amiable, rational, manly characters ; and this with so much success, that I cannot suppose there is any reader to-day conversant in the writings of those gentlemen, that can taste with any tolerable relish the comedies of the once admired Shadwell. Vice was obliged to retire and give place to virtue. This will always be the consequence when truth has fair play. Falsehood only dreads the attack, and cries out for auxiliaries. Truth never fears the encounter; she scorns the aid of the secular arm, and triumphs by her natural strength.
But to resume the description of the reign of Charles the Second. The doctrine of servitude was chiefly managed by Sir Roger L’Estrange. He had great ad vantages in the argument, being licenser for the press, and might have carried all before him, without contra diction, if writings on the other side of the question had not been printed by stealth. The authors, whenever found, were prosecuted as seditious libellers. On all these occasions, the king’s counsel, particularly Sawyer and Finch, appeared most abjectly obsequious to ac complish the ends of the court.
During this blessed management, the King had enter ed into a secret league with France, to render himself absolute, and enslave his subjects. This fact was dis covered to the world by Dr. Jonathan Swift, to whom Sir William Temple had entrusted the publication of his works.
Sidney, the sworn foe of tyranny, was a gentleman of noble family, of sublime understanding, and exalted courage. The ministry were resolved to remove so great an obstacle out of the way of their designs. He was prosecuted for high treason. The overt act charg ed in the indictment, was a libel found in his private study. Mr. Finch, the king’s own solicitor-general, urged, with great vehemency, to this effect ; ” That the imagining the death of the king is treason, even while that imagination remains concealed in the mind ; though the law cannot punish such secret treasonable thoughts, till it arrives at the knowledge of them by some overt act. That the matter of the libel composed by Sidney was an imagining how to compass the death of King Charles the Second ; and the writing of it was an overt act of the treason ; for, that to write was to act ; scribere est agere.” It seems that the king’s counsel in this reign had not received the same direction as Queen Elizabeth had given hers ; she told them they were to look upon themselves as retained, not so much pro dom- ind regind, as pro domind veritote, — for the power of the Queen, as for the power of truth.
Mr. Sidney made a strong and legal defence. He insisted that all the words in the book contained no more than general speculations on the principles of gov ernment, free for any man to write down ; especially since the same are written in the Parliament rolls and the statute laws.
He argued on the injustice of applying by inuendoes, general assertions concerning principles of government, as overt acts, to prove the writer was compassing the death of the king ; for then no man could write of things done even by our ancestors, in defence of the constitution and freedom of England, without exposing himself to capital danger.
He denied that scribere est agere, but allowed that writing and publishing is to act, scribere et publicore est agere ; and therefore he urged, that, as his book had never been published nor imparted to any person, it could not be an overt act, within the statutes of trea sons, even admitting that it contained treasonable posi tions ; that, on the contrary, it was a covert fact, locked up in his private study, as much concealed from the knowledge of any man, as if it were locked up in the author’s mind. This was the substance of Mr. Sid ney’s defence. But neither law, nor reason, nor elo quence, nor innocence, ever availed where Jeffreys sat as judge. Without troubling himself with any part of the defence, he declared in a rage, that Sidney’s known principles were a sufficient proof of his intention to compass the death of the king.
A packed jury, therefore, found him guilty of high treason. Great applications were made for his pardon. He was executed as a traitor.
This case is a pregnant instance of the danger that attends a law for punishing words, and of the little se curity the most valuable men have for their lives, in that society where a judge, by remote inferences and distant inuendoes, may construe the most innocent expressions into capital crimes. Sidney, the British Brutus, the warm, the steady friend of liberty, who, from a diffusive love to mankind, left them that invaluable legacy, his immortal ” Discourses on Government,” was for these very Discourses murdered by the hands of lawless power.
After the revolution of 1688, when law and justice were again restored, the attainder of this great man was reversed by Parliament.
” Being in Holland,” says bishop Burnet, ” the Prin cess of Orange, afterwards Queen Mary, asked me what had sharpened the king her father so much against Mr. Jurieu ? I told her he had writ with great indecency of Mary, Queen of Scots, which cast reflections on them that were descended from her. The Princess said, Jurieu was to support the cause he defended, and to expose those that persecuted it, in the best way he could ; and if what he said of Mary, Queen of Scots, was true, he was not to be blamed who made that use of it; and she added, that, if princes would do ill things, they must expect that the world will take revenge on their memories, since they cannot reach their persons. That was but a small suffering, far short of what others suffered at their hands.”
In the former part of this paper it was endeavoured to prove by historical facts, the fatal dangers that neces sarily attend a restraint of freedom of speech and the liberty of the press; upon which the following reflec tion naturally occurs, viz. that whoever attempts to suppress either of these our natural rights, ought to be regarded as an enemy to liberty and the constitution. An inconveniency is always to be suffered, when it cannot be removed without introducing a worse.
I proceed, in the next place, to inquire into the nature of the English laws in relation to libelling. To acquire a just idea of them, the knowledge of history is neces sary, and the genius and disposition of the prince is to be considered, in whose time they are introduced and put in practice.
To infuse into the minds of the people an ill opinion of a just administration is a crime, that deserves no indulgence; but to expose the evil designs or weak management of a magistrate is the duty of every mem ber of society. Yet King James the First thought it an unpardonable presumption in the subject to pry into the arcana imperii, the secrets of kings. He imagined, that the people ought to believe the authority of the govern ment infallible, and that their submission should be implicit. It may therefore be reasonably presumed, that the judgment of the Star-chamber concerning libels was influenced by this monarch’s notions of govern ment. No law could be better framed to prevent people from publishing their thoughts on the adminis tration, than that which makes no distinction, whether a libel be true or false. It is not pretended that any such decision is to be found in our books, before this reign. That is not at all to be wondered at; King James was the first of the British monarchs, that laid claim to a divine right.
‘It was a refined piece of policy in Augustus Caesar, when he proposed a law to the senate, whereby in vectives against private men were to be punished as treason. The pill was finely gilded and easily swal lowed ; but the Romans soon found that the preserva tion of their characters was only a pretext ; to preserve inviolable the sacred name of Caesar was the real the intended consequence ; if it be treason to libel a private person, it cannot be less than blasphemy to speak ill of the emperor.
Perhaps it may not appear a too refined conjecture, that the Star-chamber acted on the same views with Augustus, when they gave that decision which made it criminal to publish truth of a private person as well as a magistrate. I am the more inclined to this conjec ture from a passage in Lord Chief Justice Richardson’s speech, which I find in the trial in the Star-chamber against Mr. Prynne, who was prosecuted there for a libel. ” If subjects have an ill prince, ” says the judge, ” marry, what is the remedy ? They must pray to God to forgive him. Mr. Prynne saith there were three worthy Romans, that conspired to murder Nero. This is most horrible. ”
Tremendous wickedness indeed, my Lord Chief Jus tice ! Where slept the thunder, when these three detestable Romans, unawed by the sacred majesty of the diadem, with hands sacrilegious and accursed, took away the precious life of that imperial wolf, that true epitome of the Lord’s anointed, who had murdered his own mother, who had put to death Seneca and Burrhus, his two best friends and benefactors ; who was drenched in the blood of mankind, and wished and endeavoured to extirpate the human race 1 I think my Lord Chief Justice has clearly explained the true intent and meaning of the Star-chamber doctrine; it centres in the most abjectly passive obedience.
The punishment for writing truth, is pillory, loss of ears, branding the face with hot irons, fine, and im prisonment, at the discretion of the court. Nay, the pun ishment is to be heightened in proportion to the truth of the facts contained in the libel. But, if this monstrous doctrine could have been swallowed down by that worthy jury, who were on the trial of the seven bishops, prosecuted for a libel in the reign of James the Second, the liberties of Britain, in all human probability, had been lost, and slavery established in the three kingdoms.
This was a cause of the greatest expectation and importance that ever came before the judges in West- minster-halL
The bishops had petitioned the king, that he would be graciously pleased not to insist upon their reading in the church his Majesty’s declaration for liberty of conscience, because it was founded on a dispensing power, declared illegal in Parliament; and they said, that they could not, in prudence, honor, or conscience, so far make themselves parties to it. In the information exhibited by the attorney-general, the bishops were charged with writing and publishing a false, malicious, and seditious libel (under pretence of a petition), in diminution of the king’s prerogative, and contempt of his government.
Sawyer and Finch were among the bishops’ counsel ; the former had been attorney, the latter solicitor-general. In these stations they had served the court only too well. They were turned out because they refused to support the dispensing power. Powis and Williams, who stood in their places, had great advantages over them, by reflecting on the precedents and proceedings, while those were of the king’s counsel. ” What was good law for Sidney and others, ought to be law for the bishops ; God forbid, that in a court of justice any such distinction should be made.”
Williams took very indecent liberties with the pre lates, who were obliged to appear in court; he re proached them with acting repugnant to their doctrine of passive obedience; he reminded them of their clergy to libel him in their sermons. For Williams had been for many years a bold pleader in all causes against the court. He had been Speaker in two successive par liaments, and a zealous promoter of the bill of exclusion. Jeffreys had fined him ten thousand pounds for having licensed, in the preceding reign, by virtue of an order of the House of Commons, the printing of Dangerfield’s Narrative, which charged the Duke of York with con spiracies of a black complexion. This gentleman had no principles, was guided by his own interests, and so wheeled about to the court. The king’s counsel having produced their evidences as to the publication of the petition, the question then to be debated was, whether it contained libellous matter or not.
It was argued in substance for the bishops, that the matter could not be libellous, because it was true ; Sir Robert Sawyer makes use of the words false and libel lous, as synonymous terms, through the whole course of his argument ; and so does Mr. Finch ; accordingly they proceeded to show by the votes and journals of the Parliament, which were brought from the Tower to the court, that the kings of England, in no age, had any power to dispense with or set aside the laws of the land ; and, consequently, the bishops’ petition, which denied that his Majesty had any dispensing power, could not be false, nor libellous, nor in contempt or diminution of the king’s prerogative, as no such power was ever annexed to it. This was the foundation laid down through the whole course of the debate, and which guided and governed the verdict.
It was strongly urged in behalf of the king, that the only point to be looked into was, whether the libel be reflecting or scandalous, and not whether it be true or false; that the bishops had injured and affronted the king by presuming to prescribe to him their opinions in matters of government; that, under pretence of delivering a petition, they come and tell his Majesty he has commanded an illegal thing; that, by such a proceeding, they threw dirt in the king’s face, and so were libellers with a witness.
Previous to the opinions of the judges, it will be necessary to give the reader a short sketch of their characters. Wright was before on the bench, and made chief justice, as a proper tool to support the dispensing power. Rapin, mentioning this trial, calls Holloway a creature of the court ; but that excellent historian was mistaken in this particular. Powell was a judge of obstinate integrity ; his obstinacy gained him immortal honor. Allibone was a professed Papist, and had not taken the tests ; consequently he was no judge, and his opinion of no authority. Wright, in his charge, called the petition a libel, and declared that any thing which disturbs the government is within the case de libellis famasis, (the Star-chamber doctrine.) Holloway told the jury, that the end and intention of every action is to be considered ; and that, as the bishops had no ill inten tion in delivering their petition, it could not be deemed malicious or libellous. Powell declared, that falsehood and malice were two essential qualities of a libel, which the prosecutor is obliged to prove. Allibone replied upon Powell, that we are not to measure things from any truth they have in themselves, but from the aspect they have on the government ; for that every tittle of a libel may be true, and yet be a libel still.
The compass of this paper would not admit me to quote the opinion of the judges at length ; but I have endeavoured, with the strictest regard to truth, to give the substance and effect of them as I read them.
It has been generally said, that the judges on this we shall find a majority on the bench in favor of the bishops, when we consider, that the cause, as to Alli- bone, was beyond the jurisdiction of the court (coram non judice.)
Here, then, is a late authority, which sets aside, destroys, and annuls the doctrine of the Star-chamber, reported by Sir Edward Coke, in his case de libellis famosis.
Agreeable to this late impartial decision is the civil law concerning libels. It is there said, that the calum ny is criminal only when it is false, Calumniari est falsa crimina dicere ; and not criminal when it is true, (vera crimina dicere 😉 and therefore a writing, that insinuates a falsehood, and does not directly assert it, cannot come under the denomination of a libel, (JVbn libellus famosus quoad accusationem, quia non constat directis assertioni- bus, in quibus venit verum out falsum, quod omnino requirit libellus famosus.) In those cases where the design to injure does not evidently appear from the nature of the words, the intention is not to be presumed ; it is incum bent on the plaintiff to prove the malice ; (Animus inju- riandi non pr&sumtur, et incumbit injuriato eum probare.)
These resolutions of the Roman lawyers bear so great a conformity with the sentiments of Powell and Hollo- way, that it seems they had them in view, when they gave their opinions. Sir Robert Sawyer makes several glances at them in his argument; but, throwing that supposition out of the question, natural equity, on which the civil law is founded, (the principle of passive obedience always excepted,) would have directed any impartial man of common understanding to the same decision.
In civil actions, an advocate should never appear but when he is persuaded the merits of the cause lie on the side of his client. In criminal actions, it often happens that the defendant in strict justice deserves punishment; yet a counsel may oppose it when a magistrate cannot come at the offender, without mak ing a breach in the barriers of liberty, and opening a flood-gate to arbitrary power. But, when the defen dant is innocent, and unjustly prosecuted, his counsel may, nay ought to take all advantages, and use every stratagem, that skill, art, and learning can furnish him with. This last was the case of Zenger, at New York, as appears by the printed trial and the verdict of the jury. It was a popular cause. The liberty of the press in that province depended on it. On such oc casions the dry rules of strict pleading are never ob served. The counsel for the defendant sometimes ar gues from the known principles of law ; then raises doubts and difficulties, to confound his antagonist ; now applies himself to the affections; and chiefly endeavours to raise the passions. Zenger’s defence is not to be con sidered in all those different lights ; yet a gentleman of Barbadoes assures us, that it was published as a solemn argument in the Laws, and therefore writes a very elaborate confutation of it.
I propose to consider some of his objections, as far as they interfere with the freedom of speech and the liberty of the press, contended for in this paper.
This author begun his remarks by giving us a speci men of Mr. Hamilton’s method of reasoning. It seems the attorney-general on the first objected, that a nega tive could not be proved; to which the counsel for Zenger replied, that there are many exceptions to that general rule ; and instanced when a man is charged with killing another ; if he be innocent, he may prove the man, said to be killed, to be still alive. The re- marker will not allow this to be a good proof of the me some time to find out the meaning of this superlative nonsense; and I think I have at last discovered it. What he understands by the first affirmative, is the instance of the man’s being charged with killing another ; the second affirmative is the man’s being alive ; which certainly infers, that the man was not killed; which is undoubtedly a negative of the first. But the remarker of Barbadoes blunders strangely. Mr. Hamilton’s words are clear. He says, the party accused is on the negative, viz. that he did not kill; which he may prove by an affirmative, viz. that the man said to be killed is still alive.
Again. “At which rate,” continues our Barbadoes author, ” most negatives may be proved.” There in deed the gentleman happened to stumble right; for every negative capable of proof can only be proved after the same manner, namely, by an affirmative. ” But then,” he adds, ” a man will be put upon proving he did not kill, because such proof may be had sometimes, and so the old rule will be discarded.” This is clearly a non sequitur (not an argument) ; for, though a man may prove a negative, if he finds it for his advantage, it does by no means follow that he shall be obliged to do it, and so that old rule will be preserved.
After such notable instances of a blundering, unlogical head, we are not to be surprised at the many absurd ities and contradictions of this author, which occur in the sequel of his no-argument.
But I shall only cite those passages where there is a probability of guessing at his meaning; for he has so preposterously jumbled together his little stock of ideas, that, even after the greatest efforts, I could find but very little sense or coherence in them. I should not, however, have discontinued my labor, had I not been apprehensive of the fate of poor Don Quixote, who ran distracted by endeavouring to unbowel the sense of the following passage ; ” The reason of your unreasonable ness, which against my reason is wrought, doth so weaken my reason, as with all reason I do justly com plain.” There are several profound passages in the remarks, not a whit inferior to this. This dissertation on the negative and affirmative, I once thought to be an exact counterpart of it.
Our author labors to prove that a libel, whether true or false, is punishable. The first authority for this pur pose is the case of John de Northampton, adjudged in the reign of Edward the Third. Northampton had wrote a libellous letter to one of the king’s council, purporting that the judges would do no great things at the com mandment of the king, &c. ; the said John was called, and the court pronounced judgment against him on these grounds, that the letter contained no truth in it, and might incense the king against his judges. Mr. Hamilton says, that by this judgment it appears the libellous words were utterly false, and that the falsehood was the crime, and is the ground of the judgment. The remarker rejects this explanation, and gives us an ingenious comment of his own. First, he says, there is neither truth nor falsehood in the words, at the time they were wrote. Secondly, that they were the same as if John had said the roof of Westminster-hall would fall on the judges. Thirdly, that the words taken by themselves have no ill meaning. Fourthly, that the judges ought to do their duty, without any respect to the king’s commandment (they are sworn so to do). Fifthly, he asks, Where then was the offence ? He an says that the author of the letter was an attorney of the court, and, by the contents thereof, (meaning the con tents of the letter, not the contents of the court,) he presumes to undertake for the behaviour of the judges. Eighthly, that the letter was addressed to a person of the king’s council. Ninthly, that he might possibly communicate it to the king. Tenthly, that it might naturally incense the king against the court. Eleventh ly, that great things were done in those days by the king’s commandment, for the judges held their post at will and pleasure. Twelfthly, that it was therefore proper for the judges to assert, that the letter contained no truth, in order to acquit themselves to the king. Thirteenthly, that the judges asserted a falsehood, only to acquit themselves to his Majesty, because what they asserted was no ground of their judgment. Four- teenthly, and lastly, the commentator avers (with much modesty) that all this senseless stuff is a plain and natural construction of the case ; but he would not have us take it wholly on his own word, and undertakes to show that the case was so understood by Noy, in whose mouth our author puts just such becoming nonsense as he entertained us with from himself.
It requires no great penetration to make this discus sion in question appear reasonable and intelligible. But it ought first to be observed that Edward the Third was one of the best and wisest, as well as the bravest of our kings, and that the law had never a freer course than under his reign. Where the letter mentions, that the judges would do no great things (that is, illegal things) by the king’s commandment, it was plainly insinuated, that the judges suspected that the king might command them to do illegal things. Now, by the means of that letter, the king being led to imagine that the judges harboured a suspicion so unworthy of him, might be justly incensed against them. Therefore the record truly says, that the letter was utterly false, and that there was couched under it, an insinuation (certainly malicious), that might raise an indignation in this king against the court, &c., since it evidently appears, that not only the falsehood, but also the malice, was the ground of the judgment.
I agree with the remarker that Noy, citing this case, says, that the letter contained no ilk yet the writer was punished ; but these words are absolutely as they stand in the remarks, detached from the context. Noy adduces Northampton’s case, to prove that a man is punishable for contemplating without a cause, though the words of the complaint (simply considered) should contain no ill in them ; it is not natural to inquire whether the applica tion be just ; it is only an expression of a counsel at the bar. The case was adjourned, and we hear no more of it. Yet these words of Noy, the remarker would pass on the reader as a good authority. ” This book, therefore,” quoth he, referring to Godbolt’s Re ports, “follows the record of Northampton’s case, and says, that because it might incense the king against the judges he was punished ; which is almost a translation of PrcBtextu cujus,” &lc. I could readily pardon our author’s gibberish, and want of apprehension, but cannot so easily digest his insincerity.
The remarker in the next place proceeds to the trial of the seven bishops; I shall quote his own words, though I know they are so senseless and insipid, that I run the risk of trespassing on the reader’s patience ; however, here they be ; ” Mr. Justice Powell also does say, that, to make it a libel. it must be false, it must be malicious, and it must tend to sedition. Upon which words of this learned and worthy judge, I would not other words of his own afford, that plainly show in what sense he then spoke. His subsequent words are these, ‘ The bishops tell his Majesty, it is not out of averse- ness,’ &.c. So that the judge put the whole upon that single point, whether it be true that the king had a dispensing power or not; which is a question of law, and not of fact ; and accordingly the judge appeals to his own reading in the law, not to witnesses or other testimonies, for a decision of it.”
Now, the bishops had asserted in the libel the.y were charged with, that the dispensing power, claimed by the king in his declaration, was illegal. The remarker, by granting that the prelates might prove part of their as sertion, viz. that the dispensing power was illegal, which is a question of law, necessarily allows them to prove the other part of their assertion, viz. that his Majesty had claimed such a power, which is a question of fact ; for the former could not be decided without proving or admitting the latter, and so in all other cases, where a man publishes of a magistrate, that he has acted or commanded an illegal thing, if the defendant shall be admitted to prove the mode or illegality of the thing, it is evidently implied that he may prove the thing it self; so that, on the gentleman’s own premises, it is a clear consequence, that a man prosecuted for a libel, shall be admitted to give the truth in evidence. The remarker has a method of reasoning peculiar to him self; he frequently advances arguments, which directly prove the very point he is laboring to confute.
But, in truth, Judge Powell’s words would not have given the least color to such a ridiculous distinction, if they had been fairly quoted. He affirms, with the strongest emphasis, that, to make it a libel, it must be false, it must be malicious, and it must tend to sedition Let it be observed that these three qualities of a libel against the government are in the conjunctive. His sub sequent words are these, “As to the falsehood, I see nothing that is offered by the king’s counsel ; nor any thing as to the malice.” Here the judge puts the proof both of the falsehood and the malice on the prosecutor ; and, though the falsehood in this case was a question of law, it will not be denied, but that the malice was a ques tion of fact. Now shall we attribute this omission to the inadvertency of the remarker? No, that cannot be supposed ; for the sentence immediately followed. But they were nailing, decisive words, which, if they were fairly quoted, had put an end to the dispute, and left the remarker without the least room for evasion and therefore he very honestly dropped them.
Our author says it is necessary to consult Bracton, in order to fix our idea of a libel. Now Bracton, through out his five books De Legibus et Consuetudinibus Jhiglitz, only once happened to mention libels, very perfunctorily. He says no more than that a man may receive an injury by a lampoon and things of that nature. Fit injuria cum de eo factum carmen famosum et hujusmodi. Pray how is any person’s idea of a libel the better fixed by this description of it ? Our author very sagaciously observes, on these words of Bracton, that the falsity of a libel is neither expressed nor implied by them. That it is not expressed, is self- evident ; but that it is not implied, we have only the remarker’s ipse dixit for it.
But it was really idle and impertinent to draw this ancient lawyer into the dispute, as nothing could be learned from him, only that a libel is an injury, which every body will readily grant. I have good ground to suspect, that our author did not consult Bracton on this occasion ; the passage, cited in the remarks, is literally by which an unlearned reader might be easily led to believe, that our author was well skilled in ancient learning ; ridiculous affectation and pedantry this.
To follow the remarker, through all his incoherencies and absurdities, would be irksome ; and indeed nothing is more vexatious than to be obliged to refute lies and nonsense. Besides, a writer, who is convicted of im posing wilful falsehoods on the reader, ought to be regarded with abhorrence and contempt. It is for this reason I have treated him with an acrimony of style, which nothing but his malice and want of sincerity, and not his ignorance, his dulness, or vanity, could have justified; however, as to the precedents and proceed ings against libelling, before the case of the seven bishops, he ought to be left undisturbed in the full enjoyment of the honor he has justly acquired by tran scribing them from commonplace books and publishing them in gazettes. Pretty speculations these to be inserted in newspapers, especially when they come clothed and loaded under the jargon and tackle of the law.
I am sure, that by this time the reader must be heartily tired with the little I have offered on the subject, though I have endeavoured to speak so as to be understood ; yet it in some measure appeared necessary to expose the folly and ignorance of this author, mas- much as he seemed to be cherished by some pernicious insects of the profession, who, neglecting the noblest parts, feed on the rotten branches of the law.
Besides, the liberty of the press would be wholly abolished, if the remarker could have propagated the doctrine of punishing truth. Yet he declares he would not be thought to derogate from that noble privilege of a free people. How does he reconcile these contradic tions ? why truly thus ; he says, that the liberty of the press is a bulwark and two-edged weapon, capable of cutting two ways, and is only to be trusted in the hands of men of wit and address, and not with such fools as rail without art. I pass over the blunder of his calling a bulwark a two-edged weapon, for a lawyer is not supposed to be acquainted with military terms ; but is it not highly ridiculous, that the gentleman will not allow a squib to be fired from the bulwark of liberty, yet freely gives permission to erect on it a battery of cannon ?
Upon the whole, to suppress inquiries into the ad ministration is good policy in an arbitrary government ; but a free constitution and freedom of speech have such a reciprocal dependence on each other, that they cannot subsist without consisting together.
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“An Account of the Supremest Court of Judicature in Pennsylvania, viz., The Court of the Press.” Federal Gazette, February 12, 1789.
The following satire was published just a year before Franklin’s death in 1790. The text is from The Founder’s Constitution, and can also be read at the Online Library of Liberty.
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 inquiry or hearing, at the court’s discretion.
In whose Favour and 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 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 accus’d, and in the same Morning judg’d and condemn’d, and sentence pronounc’d against him, that he is a Rogueand 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 of the Constitution of the State, which establishes the Liberty of the Press; a Liberty which every Pennsylvanian would fight and die for; tho’ 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 press’d 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 when our Legislators shall please so to alter the Law, and shall cheerfully consent to exchange my Liberty of Abusing others for the Privilege of not being abus’d 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 in the Court of dernier Resort, in the Peerage of England. But any Man who can procure Pen, Ink, and Paper, with a Press, 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 flitters, marks you out for the odium of the public, as an enemy to the liberty of the press.
Of the natural Support of 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, 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 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 a subscription.
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 would 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 vigor; 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 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 like manner way-lay him in the night, attack him behind, and give him a good 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.
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Milikh, Arthur. “Franklin and the Free Press.” The American Founders, April 4, 2017.
Find it at the Heritage Foundation.
Rossiter, Clinton. “The Political Theory of Benjamin Franklin.” The Pennsylvania Magazine of History and Biography 76, No. 3 (1952): 259-293.
Read it on JSTOR (free access).
Pangle, Lorraine Smith. The Political Philosophy of Benjamin Franklin. Baltimore: Johns Hopkins University Press, 2007.