that this delay took place at his own request, communicated by Col. Proctor.

Col. Proctor, being examined on this point, said, that he, at first, desired the action might not be brought, in hopes of accomplishing a compromise between the parties; that, afterwards, he requested Mr. Lewis to defer issuing the writ till as near the term as it was possible: but that all this interference was of his own accord, and not at the instance of the Defendant. He acknowledged, however, that he had informed Osirald, that the commencement of the action would be postponed as long as possible, after having obtained a promise to that effect from Mr. Lewis.

Lewis said he was very much mistaken, in

deed, if Col. Proctor had not mentioned the request as coming from the Defendant; and Col. Proctor answered, "if ever I told you so, he "certainly sent me; but I cannot remember "that ever he asked me to do a thing of the "kind."

Lewis then added, that the address to the public manifestly tended to interrupt the course of justice; it was an attempt to prejudice the minds of the people in a cause then depending, and, by that means, to defeat the Plaintiff's claim to justice, and to stigmatize the Judges, whose duty it was to administer the laws. There could be no doubt, therefore, that it amounted to a contempt of the Court; and it only remained, in support of his motion, to shew that an attachment was the legal mode of proceeding against the offender. For this he cited 4 Black. Com. 280. 2 Atk. 469.

BY THE COURT:-Take a rule to shew cause on Monday next, at 9 o'clock in the morning. 322*] *The Defendant appearing on Monday the 14th, agreeably to the rule to shew cause, obtained on Saturday, prayed that the rule might be enlarged, as he had not had a reasonable time to prepare for the argument. But Lewis opposed the enlargement of the rule, observing that the defendant would be heard in extenuation, or excuse, of the contempt, after

the attachment had issued.

By M'KEAN, C. J.-I know not of any instance where a delay of a term has been allowed in the case of an attachment: one reason for such a summary proceeding is to prevent delay. Let cause be now shewn.

Sergeant, in shewing cause against the attachment, contended, that the doctrine, in 4 Black. Com, 280. was laid down much too wide; that in 2 Atk. 469. the Chancellor expressly assigns this reason, for his determining without a jury, that he was a judge of fact; and in 1 Burr. 510, 513. an information is granted on this principle, that Courts of common law will not decide upon facts without the intervention of a jury.

M'KEAN, C. J.-This was not the reason that influenced the Court in their decision. But, whatever the law might be in England, Sergeant insisted, that it could not avail in Pennsylcania. Even in England, indeed, though it is said to be a contempt to report the decisions of the Courts, unless under the imprimatur of the judges; yet, we find Burrow, and all the subsequent reporters, proceeding without that sanction. But the constitution of Pennsylvania authorizes many things to be done

Here the

which in England are prohibited. press is laid open to the inspection of every citizen, who wishes to examine the proceedings of the government; of which the judicial authority is certainly to be considered as a branch. Const. Penn. Sect. 35.

M'KEAN, C. J.-Could not this be done in England? Certainly it could: for, in short, there is nothing in the constitution of this state, respecting the liberty of the press, that has not been authorized by the constitution of that kingdom for near a century past.

a

66

66

66

however, puts this supposed offence into such Sergeant. The 9th section of the Bill of Rights, form, as must entitle the Defendant to a trial by jury; and precludes every attempt to compel him to give evidence against himself. It declares, "that, in all prosecutions for criminal offences, a man has a right to be heard by himself and his Counsel, to demand the cause "and nature of his accusation, to be confronted "with the witnesses, to call for evidence in his favour, and a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty; nor can he be compelled to give "evidence against himself; nor can any man be justly deprived of his liberty except by the laws of the land, or the judgment of his the Defendant is for a criminal offence; and, peers."-Now, the present proceeding against of this section must be defeated: for, in that yet, if the attachment issues, the essential parts case, the Defendant cannot be tried by a jury; and, according to the practice upon [*323 attachments, he will be compelled to answer interrogatories; in doing which, he must either be guilty of perjury, or give evidence against himself. The proceeding by attachment is, indeed, a novelty in this country, except for the purpose of enforcing the attendance of witnesses. Those contempts which are committed in the face of a Court stand upon a very different ground. Even the Court of Admiralty (which is not a Court of record) possesses a power to punish them; and the reason arises be competent to protect itself from immediate from the necessity that every jurisdiction should violence and interruption. But contempts which are alleged to have been committed out of doors, are not within this reason; they come and, as such, by the 9th sect. of the bill of properly within the class of criminal offences; rights, they can only be tried by a jury.

M'KEAN, C. J. Do you then apprehend that the 9th sect. of the bill of rights introduced something new on the subject of trials? I have always understood it to be the law, independent of this section, that the twelve jurors must be unanimous in their verdict, and yet this section makes this express provision.

Sergeant said, that he had discussed the subject as well as the little opportunity afforded him would admit. He pressed the Court to give further time for the argument, or, at once, to direct a trial. This he contended was, at least, discretionary; and, considering the Defendant's protestation of innocence, his readiness to give ample security for his future ap

1.--Mr. Oswald repeatedly declared that he meant no contempt of the Court in what he had published.

Heatly and Lewis, in support of the motion, contended, that under the circumstances of the case, Osırald's publication, whether true or false, amounted to a contempt of the Court, as it respected a cause then depending in judgment, and reflected upon one of the Judges in his official capacity; that the argument of the adverse Counsel went so far as to assert, that there could be no such offence as a contempt, even in England, since the very words inserted in the constitution of Pennsylvania, were used in the Magna Charta of that kingdom; that, in truth, neither the bill of rights nor the constitution extended to the case of contempts, for they mean only to secure to every citizen the right of expressing his sentiments with a manly freedom, but not to authorize wanton attacks upon private reputation, or to deprive the Court of a power essential to its own existence, and to the due administration of justice; that the Court were as competent to judge of the fact and the law, upon the inspection of the publication in question, as the Chancellor was in the authority cited from Atkins; and that although the prosecutor could, perhaps, proceed either by indictment or information, yet that the abuses of the Star Chamber had rendered the 324*] process by information odious, and *an attachment, which was sanctified by immemorial usage, was the most expeditious, and, therefore, the most proper remedy for the evil complained of.

The CHIEF JUSTICE delivered the opinion of the Court to the following effect, Judge BRYAN having shortly before taken his seat.

M'KEAN, C. J.—This is a motion for an attachment against Eleazer Oswald, the printer and publisher of the Independent Gazetteer, of the 1st of July last, No. 796. As a ground for granting the attachment, it is proved, that an action for a libel had been instituted in this Court, in which Andrew Browne is the Plaintiff, and Eleazer Oswald the Defendant; that a question with respect to bail in that action, had been agitated before one of the Judges, from whose order, discharging the Defendant on common bail, the Plaintiff had appealed to the Court; and that Mr. Oswald's address to the public, which is the immediate subject of complaint, relates to the action thus depending before us.

The Counsel in support of their motion, have argued, that this address was intended to prej udice the public mind upon the merits of the cause, by propagating an opinion that Browne was the instrument of a party to persecute and destroy the Defendant; that he acted under the particular influence of Dr. Rush, whose brother is a judge of this Court; and, in short, that from the ancient prejudices of all the judges, the Defendant did not stand a chance of a fair trial.

Assertions and imputations of this kind are certainly calculated to defeat and discredit the administration of justice. Let us, therefore, enquire, first, whether they ought to be considered as a contempt of the Court; and, secondly,

It is

And here, I must be allowed to observe, that libelling is a great crime, whatever sentiments may be entertained by those who live by it. With respect to the heart of the libeller, it is more dark and base than that of the assassin, or than his who commits a midnight arson. true, that I may never discover the wretch who has burned my house, or set fire to my barn; but these losses are easily repaired, and bring with them no portion of ignominy or reproach. But the attacks of the libeller admit not of this consolation: the injuries which are done to character and reputation seldom can be cured, and the most innocent man may in a moment be deprived of his good name, upon which, perhaps, he depends for all the prosperity, and all the happiness of his life. To what tribunal can he then resort? how shall he be tried, and by whom shall he be acquitted? It is in vain to object, that those who know him will disregard the slander, since the wide circulation of public prints must render it impracticable to apply the antidote as far as the poison has been extended. Nor can it be fairly said, that the same opportunity is given to indicate, which has been employed to defame him; for, many will read the charge, who may never see the answer; and while the object of accu- [*325 sation is publicly pointed at, the malicious and malignant author, rests in the dishonourable security of an anonymous signature. Where much has been said, something will be believed; and it is one of the many artifices of the libeller, to give to his charges an aspect of general support, by changing and multiplying the style and name of his performances. But shall such things be transacted with impunity in a free country, and among an enlightened people? Let every honest man make this appeal to his heart and understanding, and the answer must be-no!

What then is the meaning of the Bill of Rights, and the Constitution of Pennsylvania, when they declare, "That the freedom of the press shall not be restrained," and "that the printing presses shall be free to every person who undertakes to examine the proceedings of the Legislature, or any part of the government?" However ingenuity may torture the expressions, there can be little doubt of the just sense of these sections: they give to every citizen a right of investigating the conduct of those who are entrusted with the public business; and they effectually preclude any attempt to fetter the press by the institution of a licenser. The same principles were settled in England, so far back as the reign of William the third, and since that time, we all know, there has been the freest animadversion upon the conduct of the ministers of that nation. But is there anything in the language of the constitution (much less in its spirit and intention) which authorizes one man to impute crimes to another, for which the law has provided the mode of trial, and the degree of punishment? Can it be presumed that the slanderous words, which, when spoken to a few individuals, would expose the speaker to punishment, become sacred, by the authority of

1. Declar. of Rights, s. 12. 2.-Constit. of Penn. s. 35.

be alleged, his confinement had afterwards been illegally protracted:-finally calling upon the house to determine, "whether the Judges did not in"fringe the constitution in direct terms in the sen"tence they had pronounced; and whether, of "course, they had not made themselves proper "objects of impeachment."

The Assembly, having previously appointed a committee to report the order of proceeding on Mr. Oswald's memorial, resolved itself into a committee of the whole, to hear the evidence in support of the charges exhibited. Three days were consumed in the examination of witnesses, during which, the above report was substantially proved, together with the subsequent transaction relative to Mr. Oswald's imprisonment.

Mr. Lewis, as a member of the house, then delivered a very elaborate argument, in vindication of the conduct of the judges; and, though this is, in some degree, foreign to my immediate undertaking, it may not be unprofitable to those, who, either now or hereafter, wish to understand the principles of so interesting a case, to delineate the leading features of the doctrine which he main

tained.

He began with stating the inestimable character of true liberty, which is equally endangered by tyranny on the one hand, and by licentiousness upon the other. He said, it did not consist in the uncontrolled power of doing whatever the will might prompt an individual to attempt; but, while it was independent of arbitrary and despotic rule, it was happily regulated by the laws and constitution of the state. Having rescued Sir William Blackstone from the stigma of being a courtly writer, by shewing the enthusiasm of that author in favour of the trial by jury. Mr. Lewis referred to the celebrated Commentaries in support and illustration of his sentiments upon liberty. 1 Black. Com. 125. 2 Black. Com. 4 Black. Com. 3. 42. He then commented upon the origin, nature, and purposes of a state of society, which, he said, was principally formed to protect the rights of individuals; and, of those rights, he pathetically described the right of enjoying a good name, to be the most important and most precious. He observed, that the injuries which could be done to any other property, might be repaired; but reputation was not only the most valuable, but, likewise, the most delicate of human possessions. It was the most difficult to acquire: when acquired, it was the most difficult to preserve; and when lost, it was never to be regained. If, therefore, it was not as much protected as any other right, the aged matron, and the youthful virgin, (since purity of character is the palladium of female happiness) while they are fettered by the habits and expectations of society, are exposed and abandoned by its laws and institutions. But this evil is effectually removed, when we consider the bill of rights as precluding any attempt to restrain the press, and not as authorizing insidious falsehoods and anonymous abuse. The right of publication, like every other right, has its natural and necessary boundary; for, though the law allows a man the free use of his arm, or the possession of a weapon, yet it Coes not authorize him to plunge a dagger in the breast of an inoffensive neighbour.

Mr. Lewis then proceeded to consider the immediate subject of complaint. He stated it to be two-fold; 1st, That the CHIEF JUSTICE had protracted Mr. Oswald's imprisonment beyond the legal expiration of his sentence; and, 2dly, That the imprisonment itself was unconstitutional, illegal, and tyrannical.

Fa. in the county where the Venue was laid, in order to ground à Testatum into Bucks.

*Lery, in shewing cause, contended, [*331 that the act of Assembly had departed from the practice in England; and that in directing a Testatum it referred only to the Courts of Common Pleas, which are limited in jurisdiction to a single county: That the same act established the jurisdiction of the Supreme Court, and made it co-extensive with the State; and that, therefore, as the Legislature was silent with respect to issuing a Testatum from this latter Court, it was fairly to be inferred, they did not mean to require it. He further insisted that the practice

On the first point, he observed, that it was, indeed, a serious charge, if Mr. Oswald could prove that a single justice had arbitrarily altered, or counteracted, the record of the Court, in order to accomplish the imprisonment of a citizen. But how was the charge supported? The opinion given by the CHIEF JUSTICE to the jailer, was not given in his judicial capacity; and though a paper, said to be a transcript from the records, was shewn to him, yet it was not subscribed by the Prothonotary, nor was it under the seal of the Court. This, therefore, could not be a sufficient document to set aside his recollection of the sentence; it was no legal evidence of the fact which it stated, (Gilb. Law of Ev. 23.) and the little time that elapsed between the opinion given to the jailer, and the directions for Mr. Oswald's release, we may fairly presume to have been consumed in examining the records.

On the second point, he engaged in a long and ingenious disquisition upon the nature of what is called the liberty of the press; he represented the shackles which had been imposed upon it during the arbitrary periods of the English government: and thence deduced the wisdom and propriety of the precaution, which declares in the bill of rights, that the press shall not be subject to restraint. He gave an historical narrative of the British acts of parliament and proclamations, which debarred every man of the right of publication, without a previous license obtained from officers, established by the government to inspect and pronounce upon every literary performance; but observed, that this oppression (which was intended to keep the people in a slavish ignorance of the conduct of their rulers) expired in the year 1694, when the dawn of true freedom rose upon that nation. 9 vol. Stat. at large, p. 190. Since that memorable period, the liberty of the press has stood on a firm and rational basis. On the one hand, it is not subject to the tyranny of previous restraints, and, on the other, it affords no sanction to ribaldry and slander;-so true it is, that to censure the licentiousness, is to maintain the liberty of the press. 4 Black. Com. 150. 151. 152. Here, then, is to be discerned the genuine meaning of this section in the bill of rights, which an opposite construction would prostitute to the most ignoble purposes. Every man may publish what he pleases: but, it is at his peril, if he publishes any thing which violates the rights of another, or interrupts the peace and order of society;-as every man may keep poisons in his closet, but who will assert that he may vend them to the public for cordials? If, indeed, this section of the bill of rights had not circumscribed the authority of the Legislature, this house, being a single branch, might in a despotic paroxysm, revive all the odious restraints, which disgraced the early annals of the British government. Hence, arises the great fundamental advantage of the provision, which the authors of the constitution have wisely interwoven with our political system; not, it appears, to tolerate and indulge the passions and animosities of individuals, but effectually to protect the citizens from the encroachments of men in power.

It has been asserted, however, that Mr. Oswald's address was of a harmless texture; that it was no abuse of the right of publication, to which, as a citizen, he was entitled; and, in short, that in considering it as a contempt of the Court, the judges have acted tyrannically, illegally, and unconstitutionally. But let us divest the subject of these high-sounding epithets, and the reverse of this assertion will be evident to every candid and un