XII. with more confidence on the justice or the favor of the CHAPTER state bench. Chief-justice M'Kean, whose daughter Yrujo soon after married, had not himself entirely escaped Cob- 1797. bett's shafts. Not willing to run the risk of a suit for damages, or even to hazard the result of an indictment, since in Pennsylvania the truth might be given in evidence, M'Kean adopted a contrivance for the punishment of Cobbett, founded on some old English precedents, but the legality of which was excessively doubtful. It was, indeed, sustained as legal by a decision of the Pennsylvania Court of Appeals some four years afterward; but no where else, by any formal decision of any court of common law, has any such doctrine ever been recognized; and even in Pennsylvania it was tacitly set aside by Chief-justice Tilghman within five or six years after the decision was made. In pursuance of this contrivance, about the same time that Cobbett was bound over in the United States Court, M'Kean issued a warrant against him, a copy of which he would not allow him to have, in which he was charged generally with having libeled M'Kean himself, Mifflin, Dallas, Jefferson, Monroe, Galiatin, and a number of other persons, and on which ne was not only bound over to appear at the next criminal court, but was compelled to give security in four thousand dollars to keep the peace and be of good behavior in the mean time. Having thus put Cobbett under bonds, M'Kean with a view to their subsequent forfeiture took care to have a collection made of all articles obnoxious "to the charge of being libelous, which in the interval appeared in his paper. He also took up Yrujo's case with much warmth, and speedily issued a second warrant, Nov. 18 charging Cobbett with having published certain infamous libels on the King of Spain and his minister, and the Spanish nation, "tending to alienate their affections and CHAPTER regard from the government and citizens of the United XII. States, and to excite them to hatred, hostilities, and war." 1797. To the grand jury assembled at the criminal sessions held shortly after, M'Kean gave a remarkable, and, like all his judicial performances for as a lawyer he has had but few rivals a very able charge, almost exclusively devoted to the subject of libels. "When libels are printed," so he informed the jury, "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 other libels 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 to incline them to faction and sedition." "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 Pennsylvania, the authors, printers, and publishers of such libels 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 its discretion shall seem proper, according to the heinousness of the crime and the quality and circumstances of the offender." "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 XII. consists in laying no previous restraints upon publica- CHAPTER tions, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted 1797. 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 and 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 in this respect is confirmed and established by the Constitution, which provides '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 of their publications that they are decent, candid, and true; that they are for the purpose of reformation and not of 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, that can answer no good purposes for the community, but, on the contrary, must destroy the very ends of society-were these to escape with impuni ty, youth would not be safe in its innocence, nor venerable old age in its wisdom, gravity, and virtue; dignity and station would become a reproach, and the purest and best characters that this or any other country ever produced would be vilified and blasted, if not ruined. CHAPTER "If any person, whether in a public or private station, does injury to individuals or to society, ample re1797. dress can be had by having recourse to the laws and the proper tribunals, where the parties can be heard personally or by council, the truth can be fairly investigated, and justice be fully obtained; so that there can be no necessity nor 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 a gentleman can not 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 civil. ized 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 man. gle 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." With the above statement of law and facts little fault is to be found. They were both sufficiently correct, and are quoted here for future reference. But it was a little strange that, while the above state of things had existed for several years past, especially in Philadelphia, Chiefjustice M'Kean had seen no occasion till now to interfere. For years past this licentiousness of the press, so 1 XII. vigorously painted and denounced, had been directed CHAPTER without remorse against Washington, against Hamilton, against Jay, Adams, and the Federal leaders generally, 1797. against the Federal administration, against the British government, the British nation, and the British ambassador. But Paine's letter to Washington, Callender's attacks upon Hamilton, the daily libels vomited forth by the Aurora, the labors of that paper week after week to excite against the British nation hatred, hostilities, and war, had called out no action on the part of the judge. All this time he had been silent; but within less than eight months after the establishment of a newspaper for the avowed purpose of retorting these libels by the publication of disagreeable and scandalous truths as to their authors and favorers, the publisher of that paper, by a most extraordinary, not to say illegal stretch of power, had been compelled to give securities to be of good behavior; and now this same partisan chief justice was straining every nerve to stimulate a grand jury to indict him for libel; not for libels, be it observed, against Mifflin, whom he charged with being a drunkard, a debauchee, and an insolvent debtor, who had fraudulently overdrawn to a large amount his account with the Bank of Pennsylvania; not for libels against M'Kean himself, accused of being engaged in constant brawls with his wife, going to the extent of blows given and returned, and so habitual a drunkard that, according to a memorial said to have been signed by most of the members of the Philadelphia bar; persons and property were not safe in Pennsylvania after dinner; not for libels against Dallas, Swanwick, M'Clenachan, Monroe, or Barney, or any other of the opposition leaders held up in various ways to contempt and ridicule -for all these charges had a foundation in fact too easily proved to make a prosecution expedient-but for a libel |