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and immoral members of society. We have before seen the great latitude allowed by the law for the communication of inculpatory truth, in all circumstances wherein its communication can be considered as imperative, or necessary, or even clearly useful, for any of the ordinary transactions or relations of life. Wherever the situation of the parties requires it, or the immediate prevention of fraud or evil, or the promotion of any direct good end is attainable by it, we have seen that the communication, in the manner and to the extent which the object demands, is strictly innocent and justifiable. In so far also, as the press is merely assisting and ancillary to the regular decisions of the law upon the conduct of individuals, we have seen that, in like fashion, scarcely any restraint is put on publication. When the judge condemns the fraudulent or immoral offender, the press may, with perfect impunity, lend its aid to his exposure, by publishing full reports of the proceedings, with all comments that are temperate and useful. Thus far the press exercises no judicial or censorial functions; it neither passes convictions, nor inflicts sentences. The law of the country, on legal evidence, has affixed guilt on the offender, and the press is merely instrumental in recording its decrees, and giving them that publicity which is alike necessary for punishment, for example, and for caution. But it is obviously one thing to report decrees, and another to pronounce them. The short-hand writer of the court is an useful person in his station; but he is obviously transplanted into a novel sphere, and one that requires very different qualifications, when he steps on the bench, and assumes the ermine of the judge. The self-styled friends of the press, however, are not satisfied with the co-operative and ministerial department, in which it is at present free to act with impunity, and in which we think its efforts are highly serviceable.
They demand for it an extended empire, and an original jurisdiction of its own: it ought, they contend, not merely to record the judgments on offenders pronounced by the law, but to constitute of itself a separate and distinct tribunal, not only taking cognizance of, and stigmatizing legal crimes which may escape the vengeance of the law, but, over and above all this, punishing offenders against morals and decency, and even good taste and good manners, whom the ordinary laws consider entirely beyond their controul.
Now, in the first place, if all truth is to be allowed, though defamatory and injurious, it is quite impossible to draw a distinction between the different descriptions of such truth; and a very considerable evil resulting, will be the publication of thousands of mere indifferent and innocent actions, which it imports nothing to the public to know, and which yet, for numberless reasons, may
harass and distress, and render ridiculous individuals in their disclosure. Natural infirmities, harmless absurdities, venial weaknesses in private life, which often belong most to the best and most exemplary men-nay even private calamities and afflictions-must all be laid open to public criticism and curiosity, to the infinite suffering of the parties, and to the real prejudice of the public taste. No person, who attends to the character of the publications of the present day, can doubt the great and mischievous extent of this class of abuses, even under a law which makes truth punishable. Then, with respect to all such delinquencies of individuals as amount to breaches of law, an ordinary proceeding against them in a court would, in our opinion, be at once far more effective for every good end, and attended with fewer bad consequences, than the unauthentic statements of them in any publication of the press. Nothing can be more rational than the doctrine of the Theodosian code,-'Famosa scriptio libellorum quæ nomine accusatoris caret, minime examinanda est, sed penitus abolenda-nam qui accusationis promotione confidat, libera potius intentione, quam captiosa atque occulta conscriptione, alterius debet vitam in judicium devocare.' Since crime so often goes unpunished from concealment, whenever it is known the opportunity of chastisement should not be lost; and the cautioning the world against a particular felon or swindler, detected but untried, is at once a mode of giving valuable hints to the criminal, and of exposing the laxity of the law to the observation of those who follow, or would fain adopt, the same trade. But-it is said -these exposures lead to prosecutions; we doubt much any such effect, and we think they are quite as likely to defeat prosecutions, by putting parties on their guard, so as to contrive escape or prepare false evidence to meet an indictment. The truth is, the instances are very rare of individuals coming forward to prosecute from reading a story in a newspaper. The prosecutor, in almost all cases, is the party injured by the crime, and we think the information as to the facts of the offender's guilt would, in general, answer as much good by being privately and soberly conveyed to the party injured, or others in any way concerned, as by being blazoned to the world with the colouring of a newspaper. Statements of this sort also have the most prejudicial effect on parties actually put on their trial, and on the general proceedings of justice, by pre-occupying the minds of judges, jurymen, and witnesses with rumours and hearsays, the influence of which cannot be entirely guarded against, even by the most cautious and reflecting men. Nothing is more difficult, even for practised minds, than to separate the previous vague knowledge from the evidence actually adduced against the party. The great advantage of the regular
legal proceeding is, that the court has the full means of obtaining, examining, and deciding on, proper evidence of the facts charged; whereas the publisher necessarily trusts to rumour and uncertain hearsay, which he has no means of properly scrutinizing or authenticating. The court being satisfied with the evidence awards the calm and dispassionate sentence of the law. The publisher, for purposes of punishment, is obliged to resort to the language of vehement castigation and censure, with which personal and malignant feeling is almost certain to be mixed up. In the court of justice innocence is protected from danger by the strict forms and cautious rules, according to which guilt must be established. The tribunal of the press proceeds per saltum, and admitting hearsay as truth, and whispers and rumours as
We cannot resist referring our readers who are not only startled at the jurisdiction claimed, but amused by the airs of grandeur and consequence assumed by the monitors of the press, to a little Essay of Dr. Franklin,—a writer who, it must be admitted, knew and respected as much as any man the legitimate services of the press, while his strong sense laughed at its pretensions and exposed its mischievous tendencies.It is entitled::
6 AN ACCOUNT OF THE SUPREMEST COURT OF JUDICATURE IN PENNSYLVANIA; VIZ., THE
COURT OF THE PRESS.
'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 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 the common courts of law. The accused is allowed no grand jury to judge of the truth of the accusation before it is publicly made, nor is the name of the accuser made known to him, nor has he an opportunity of confronting the witnesses against him, for they are kept in the dark, as in the Spanish Court of Inquisition. Nor is there any petty jury of his peers sworn to try the truth of the charges. The proceedings are also sometimes so rapid, that an honest good citizen may find himself suddenly and unexpectedly accused, and in the same morning judged and condemned, and sentence pronounced against him that he is a rogue and a villain. Yet, if an officer of this court receives the slightest check for misconduct in this his office, he claims immediately the rights of a free citizen by the constitution, and demands to know his accuser, to confront the witnesses, and to have a fair trial by jury of his peers.
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 ressort in the Peerage of England; but any man who can procure pen, ink, and paper, with a press, a few types, and a huge pair of blacking balls, may commissionate himself, and his court is immediately established in the plenary possession and exercise of its rights; for 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 fritters, marks you out for the odium of the public as an enemy to the liberty of the press.'-Memoirs, vol. iii, p. 303.
proofs, necessarily condemns the innocent almost as often as the culpable. Under pretext of exposing the guilty, the spotless are thus perpetually assailed and insulted-and this even in many instances where the remedy by legal proceeding can afford no sufficient compensation. Lastly, from the erring, fallible, and careless character of the censors, their exposure carries with it a diminished authority, even where it falls in a deserving quarter. The sentence of a court carries credit on the face of it; and the individual there pronounced guilty, is believed to be so by the world. But the unauthorised stigmas of the press are often treated as malicious and idle rumours-at best they create vague suspicion, and distrust, rather than stamp clear guilt on the offender.They soil and bespatter private fame rather than destroy it—and cripple and damage characters in such a way as to annoy without amending the individual, and perplex the public without giving it undoubted information on which to shape its conduct towards the parties. The world are often inclined to say, with the Emperor Constantine, in such cases, Innocens creditur cui defuit accusator, cum non defuerit inimicus.'
It is, however, alleged that a large class of vices and moral crimes, being altogether beyond the reach of the law, it is at least useful that the press should have the power of exposing and censuring all these, since they must otherwise go unpunished. We admit the deplorable extent to which vice and immorality, under any system of law, may be carried, without infringing positive rules; and while this is one among the instances of the necessary imperfection of human laws, it affords the strongest motive for adding efficacy and strength, by every means in our power, to moral and divine sanctions. But if private profligacy and immoral indulgence are to be subjected to the jurisdiction of literary censors, with summary powers of accusation, conviction, and sentence, upon what principle are they not brought within the ordinary laws of the country, whose proceedings would be safer, more vigorous, and attended with less dangerous consequences? All reasons, which exclude certain offences of man against his Maker from the scope of human law, exist, and more strongly still, against their subjection to the irresponsible inquisitions of the press. The vices, in fact, which laws fail to suppress, we must trust to education, to moral, and intellectual, and religious habits in the community, to check, if not to eradiWhat the legislator and the judge cannot punish, must be left to the pulpit, the school, the university, and above all, the conscience of individuals to prevent; and on these, we suspect, society must depend for the purity and morals of its members, rather than on the fostering cares of anonymous scribes and obscure satirists.
satirists. The dread of exposure is at least as likely to produce hypocrisy as virtue; and we must lay better foundations for morals than the terrors of a literary police. That regard to character and estimation with the world do materially co-operate towards the morality of individuals, who could be the fool to dispute?and the dread of public disgrace will occasionally influence beneficially the most hardened sinner. Non prius laudes contempsimus quam laudanda facere desivimus.' But let it be remembered that a very active, constant, and, we believe, the only safe and efficient censorship on individual conduct is kept up by means of the ordinary intercourses of society, without any aid from the press. In the little circle, in which every member moves in society, his actions, even the most private, are, almost to a hurtful extent, known, and canvassed, and pronounced upon. If the window of Momus be hopeless, the eyes of Argus are at least active and universally curious. Few things are concealed from next-door neighbours, or from their neighbours. Curiosity is ever awake, envy is watchful, self-interest obliges us to ascertain the habits and character of those with whom we are in relation. Fame, with her wings, eyes, ears, and tongues, was an efficient 'nuncia veri,' long before a steam-printing-press or a Sunday-paper was thought of. Scandal passes 'pernicibus alis,' from house to house-gross infractions of morality or decency, committed in one street, are soon canvassed by a whole town or neighbourhood --and the law opposes no check whatever to this species of most effectual censure; since all that is true may be said and talked about with absolute impunity. This sort of surveillance has also the advantage of being carried on by neighbours and friends, who really have a material interest in the conduct of their associates, and who, from local connexion and opportunity, have tolerable means of learning the truth. And after all, however bitter the slander, or defamatory the gossip, it is at most but the unembodied effusion of fugitive loquacity. But the anonymous censor of the press, without legitimate interest in the matter, frequently im pelled by sordid or malicious views, with far less means of arriving at truth, and with a perpetual motive to exaggerate and colour for effect, demands to be intrusted with the power of disseminating hearsays, not in fugitive words, but with the permanent stigma of printing, and this to thousands of persons unconcerned in the individual's conduct-nay, perhaps, before ignorant of his existence. Candid censure and friendly reproach thus become malicious persecution and attack-and the whispers of monitory blame are heightened into the cry of detraction. No distinction is observed by the strange and hardened and eager eyes of the underling feeders of columns, between the settled profligacy of the man