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Jared Ingersoll, Attorney General, for the Commonwealth. CHIEF JUSTICE MCKEAN (after touching generally upon the nature of the Grand Jury). Before I conclude, I am sorry to have occasion to mention that there is another crime that peculiarly concerns the judges of the Supreme Court to endeavor to correct: it is that of libeling. I will describe it at large.
Libels, or libelli famosi, taken in the most extensive sense, signify any writings, pictures or the like, of an immoral or illegal tendency; but in the sense we are now to consider them, are malicious defamations of any person, and especially magistrate, made public either by writing, printing, signs or pictures, in order to provoke him to wrath, or to expose him to public hatred, contempt or ridicule.
The direct tendency of these libels is the breach of the public peace, by stirring up the objects of them, their families and friends, to acts of revenge, and perhaps of bloodshed; which it would be impossible to restrain by the severest laws, were there no redress from public justice for injuries of this kind, which, of all others, are most sensibly felt; and which, being entered upon with coolness and deliberation, receive a greater aggravation than any other scandal or defamation, continue longer and are propagated wider and farther. And where libels are printed against persons employed in a public capacity, they receive an aggravation as they tend to scandalize the government, by reflecting on those who are intrusted with the administration of public affairs, and thereby not only endanger the public peace, as all others do by stirring up the parties immediately concerned to acts of revenge, but have also a direct tendency to breed in the people a dislike of their governors, and incline them to faction and sedition.
Not only charges of a heinous nature, and which reflect a moral turpitude on the party are libelous, but also such as set him in scurrilous, ignominious light; for every person desires to appear agreeable in life, and must be highly provoked by such ridiculous representations of him as tend to
See 4 Am. St. Tr. 625.
lessen him in the esteem of the world, and take away his reputation, which to some men is more dear than life itself; for these equally create ill blood, and provoke the parties to acts of revenge and breaches of the peace.
A defamatory writing expressing only one or two letters of a name, or using such descriptions and circumstances, feigned names or circumstances, in such a manner, that from what goes before and follows after it must needs be understood to signify such a person in the plain, obvious, and natural construction of the whole, is as properly a libel as if it had expressed the whole name at large, for it brings the utmost contempt on the law to suffer its justice to be deluded by such trifling evasions; and it is a ridiculous absurdity to say, that a writing, which is understood by the very meanest capacity, cannot possibly be understood by courts and juries.
It is equally ridiculous and absurd to suppose, that if a man speaks slanderous or defamatory words of another he may be sued and ample damages recovered for the injury; but if the same words are put in writing or printed, no punishment can be inflicted. Such a doctrine may gratify the wishes of envious and malicious cowards and assassins, but must be detested by all sensible and good men.
These offenses are punishable, either by indictment, information, or civil action; but there are some instances where they can be punished by a criminal prosecution only; as where the United States in Congress assembled, the legislature, judges of the Supreme Court, or civil magistrates in general, are charged with corruption, moral turpitude, base partiality, and the like, when no one in particular is named.
By the law of the Twelve Tables at Rome, libels which affected the reputation of another, were made capital offenses, but before the reign of Augustus, the punishment became corporeal only. Under the Emperor Valentinian, it was again made capital, not only to write, but to publish them, or even to omit destroying them. But by the laws of Pennsylvania, the authors, printers and publishers of a libel, are punishable by fine, and also, a limited imprisonment at hard labor and solitary confinement in jail, or imprisonment
only, or one of them, as to the court in discretion shall deem proper, according to the heinousness of the crime, and the quality and circumstances of the offender.
Any libeler, or person even speaking words of contempt against an inferior magistrate, as a justice of the peace or mayor, personally, though he be not in the actual execution of his office, or of an inferior officer of justice, as a constable, and such like, being in the actual execution of his office, may be bound to his good behavior by a single justice of the peace.
By this law and these punishments, the liberty of the press (a phrase much used, but little understood) is by no means infringed or violated. The liberty of the press is, indeed, essential to the nature of a free State, but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter, when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his temerity. To punish dangerous or offensive writings, which, when published, shall, on a fair and impartial trial, be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundation of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Our presses in Pennsylvania are thus free. The common law, with respect to this, is confirmed and established by the Constitution. By the seventh section of the declaration of the principles of a free government, it is ascertained that the printing presses shall be free to every person, who undertakes to examine the proceedings of the legislature or any part of government. Men, therefore, have only to take care in their publications, that they are decent, candid and true; that they are for the purpose of reformation and not for defamation; and that they have an eye solely to the public good. Publications of this kind are not only lawful, but laudable. But if they are made to gratify envy or malice, and contain personal invectives, low
scurrility, or slanderous charges, they can answer no good purposes for the community, but on the contrary must destroy the very ends of society. Were these to escape with impunity, youth would not be safe in its innocence, nor venerable age in its wisdom, gravity and virtue; dignity and station would become a reproach, and the fairest and best characters that this or any other country ever produced, would be vilified and blasted if not ruined.
If any person, whether in a public or private station, does injury to an individual, or to the society, ample redress can be had by having recourse to the laws, and the proper tribunals where the parties can be heard personally, or by counsel, the truth can be fairly investigated, and justice be fully obtained; so that there can be no necessity or reason for accusing any one of public or private wrongs in pamphlets or newspapers, or of appeals to the people under feigned names, or by anonymous scribblers.
Every one who has in him the sentiments of either a Christian or gentleman, cannot but be highly offended at the envenomed scurrility that has raged in pamphlets and newspapers, printed in Philadelphia for several years past, insomuch, that libeling has become a kind of national crime, and distinguishes us not only from all the States around us, but from the whole civilized world. Our satire has been nothing but ribaldry and Billingsgate; the contest has been, who could call names in the greatest variety of phrases; who could mangle the greatest number of characters; or who could excel in the magnitude and virulence of their lies. Hence the honor of families has been stained; the highest posts rendered cheap and vile in the sight of the people, and the greatest services and virtue blasted. This evil, so scandalous to our government, and detestable in the eyes of all good men, calls aloud for redress. To censure the licentiousness is to maintain the liberty of the press.
At a time when misunderstandings prevail between the Republics of France and the United States, and when our General Government have appointed public ministers to endeavor their removal, and restore the former harmony, some
of the journals or newspapers in the City of Philadelphia have teemed with the most irritating invectives, couched in the most vulgar and opprobrious language, not only against the French nation and their allies, but the very men in power with whom the ministers of our country are sent to negotiate. These publications have an evident tendency not only to frustrate a reconciliation, but to create a rupture, and provoke a war between the sister republics, and seem calculated to vilify, nay, to subvert all republican governments whatever.
Impressed with the duties of my station, I have used some endeavors for checking these evils, by binding over the editor and printer of one of them, licentious and virulent beyond all former example, to his good behavior; but he still perseveres in his nefarious publications; he has ransacked our language for terms of insult and reproach, and for the basest accusations against every ruler and distinguished character in France and Spain with whom we chance to have any intercourse, which it is scarce in nature to forgive; in brief, he braves his recognizance and the laws. It is now with you, gentlemen of the Grand Jury, to animadvert on his conduct; without your aid it cannot be corrected. The government that will not discountenance, may be thought to adopt it, and be deemed justly chargeable with all the consequences.
Every nation ought to avoid giving any real offense to another. Some medals and dull jests are mentioned and represented as a ground of quarrel between the English and Dutch in 1672, and likewise called Louis the XIVth, to make an expedition into the United provinces of the Netherlands in the same year, and nearly ruined the commonwealth.
We are sorry to find our endeavors in this way have not been attended with all the good effects that were expected from them; however, we are determined to pursue the prevailing vice of the times with zeal and indignation, that crimes may no longer appear less odious for being fashionable, nor the more secure from punishment from being popular.
The criminal law of this State is so pregnant with justice, so agreeable to reason, so full of equity and clemency, that