an attempt is made to give to this recognizance an operation which it cannot receive according to principles of law, and therefore it is wholly inoperative and void.

On these two points, Mr. Lewis commented very largely and cited several authorities in support of his reasoning.

He was followed by M'Kean and Ingersoll, but the reporter regrets that he has no note of their arguments.

The Court were unanimously of opinion that the justices of the supreme court have the power to demand surety for good behaviour, and that notwithstanding the words employed by the late chief justice, the recognizance is not void, because the construction naturally arising from them would confine the recognizance to the people of this commonwealth; and whatever were the objects contemplated, yet it cannot extend further than to the people of this commonwealth.

the

M'Kean, on the third point, stated that a recognizance for

peace may be forfeited by any act which tends to a breach of the peace, and a recognizance for good behaviour by the same act or by any other which is contra bonos mores, 4 Com. Dig. 254. 143. 149, 150. 2 Rol. Rep. 200. Cro. Eliz. 86. 2 Wils. 403. 1 Hawk. 193. 195.

He then read the several libellous publications and expatiated upon their pernicious tendency.

In the publications of the 25th and 28th Aug. the proclamation of governor Mifflin under the health law of 1794 is styled an arbitrary proclamation and they insinuate that the proceedings of the board of health under it are murderous.

4th Sept. He charges the governor with appression in the enforcing an old stat. of Edw. 3. and putting a forced construction upon it for purposes of oppression.

15th Sept. He charges him with wearing a bloody liberty cap, with boozing among drunken sansculottes and with beastly drunkenness.

16th Sept. The proclamation he stigmatizes as unlawful and

unconstitutional.

19th Sept. He ridiculos a government by the sovereign people.

26th Sept. He charges governor Mifflin with being an unfeeling, unprincipled republican tyrant.

13th. Oct. He ridicules John Swanwick esq. for his poverty; and in the same paper he calls Dr. Franklin the treacherous and malicious old Zanga of Boston, &c. &c.

Mr. McKean observed that all these publications were clearly libellous: but if any one of them be so, it is sufficient to entitle the state to recover.

Lewis. The remaining point to be discussed depends partly upon law and partly upon evidence. The question is whether these publications are sufficiently libellous to work a forfeiture of the penalty of the bond in which the defendant has been bound. If the jury give a verdict in favour of the commonwealth, they cannot apportion the sum according to the enormity or trivial nature of the offence, nor can the court. The verdict must be for the whole sum of two thousand dollars, or be in favour of the defendant. It is therefore highly important to you and to me, to the citizens at large and to posterity, to inquire whether this proceeding be regular. Whether the government or any of its officers have the power, in case of an indictable offence, which this is, if it be any offence at all, to dispense with the necessity of a grand jury, and moreover to fix arbitrarily on the measure of the punishment that shall be inflicted. The constitution of this commonwealth, art. 9. sect. 10. declares" that no person shall, for any indictable offence, be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, or, by leave of the court, for oppression and misdemeanor in office."

The object of this provision was undoubtedly to secure to the citizen the intervention of a grand jury, in every case not included in the exceptions. It is intended to exclude the proceeding by information, and of course every other sort of proceeding which savours still more of hardship and oppression. In the proceeding by information the person who is accused loses the protection of a grand jury; but in this case he is not only deprived of that support, but even the measure of punish

inent is taken from the court, and left to the discretion of any justice of the peace who may have chosen to bind him to his good behaviour. If a chief justice or any justice of the peace can dispense with binding a man over to answer in a regular course of law, for the publication of a libel, which is the ground of issuing the warrant, and is allowed to bind him to his good behaviour, it is holding a rod of scorpions over his head to be used in case of any the smallest peccadillo which he may commit; it is a most dangerous inroad upon the liberty of the press which we thought had been established: it is a violent usurpation of the power which the courts possess of apportioning the punishment to the offence: it melts all offences, from the most heinous to the most venial, into one common mass, inflicting on the smallest transgressions that severity of punishment which is due only to the most flagrant misdemeanors. If such things can be done, well may we exclaim, with the defendant," Poor Pennsylvania!"

But what must be the offence which will constitute a breach? The condition of the recognizance gives us the rule by which our inquiry must be guided. The defendant is there bound to be of "good behaviour towards the commonwealth and all the liege subjects," &c. that is, to persons owing allegiance to the commonwealth at the time that the offence was committed. It cannot extend to citizens or subjects of other states or governments, nor to persons deceased long since, because neither of these owe any allegiance to this commonwealth. It is not pretended that a libel against the memory of the deceased is not punishable: but this is not the manner of accomplishing it. The condition is to be construed strictly. It is a contract imposed upon the defendant by the commonwealth, or rather by the chief justice, and cannot be extended to offences not comprehended within its terms. The defendant did not stipulate that he would not libel the dead, nor that he would not publish any libel against a foreigner; but he only stipulated that he would be of good behaviour towards all those who owed allegiance to the commonwealth.

Rejecting then, all that relates to Dr. Franklin and Rittenhouse, the Spaniards, French and Virginians, and it will be found that all which remains cannot amount to a breach of this recognizance. All the publications related to subjects which were highly interesting and which occupied the whole attention of the public. They were made at a time of great calamity, when dissentions and disputes were carried on with the bitterest degree of acrimony and virulence. They were on topics which intimately excited the feelings of the community, and on which all classes of men spoke in the loudest and most decisive tone against those who differed from them in opinion.

Mr. Lewis then distinguished those publications which might be included within the condition of the recognizance from those which he considered were not, in order to show, that of those which were included, some were undeniably true, and others were justified by the temper of the times, the nature of circumstances and the severity of provocation which the defendant had received.

He strenuously urged to the jury that they were the judges both of the law and the fact, and emphatically cautioned them against giving their sanction to a mode of prosecution so arbitrary and irregular; and a precedent so dangerous to the principles of the constitution.

He concluded by reading a part of Camden's letter on libels p. 25. in which the author contends that demanding surety for good behaviour affords great latitude for construction, and is therefore much to be dreaded.*

THE COURT desired that Mr. Ingersoll, in his reply, would satisfy them as to the legality of this mode of proceeding, and whether the recognizance could be sued before there was a conviction for such an offence as would create a forfeiture.

Ingersoll denied the authority of Camden because, he said, he was a party man who wrote during violent civil commotions, and maintained doctrines which were totally incompatible with

* Vid. Commonwealth v. Duane, 1807. Judge Tilghman's opinion. Ameri can Law Journal, No. II. p. 168.

sules of law which were long settled and firmly established; e. g. in p. 23, he says, "to pursue a libeller at all is alien from the nature of the English constitution," and "no publication however immoral and obscene is a punishable offence." These sentiments were, in themselves, the answer to the passage read by his learned friend across the table.

It had been suggested that he was aiding the attorney general in pressing an unconstitutional verdict, but the action had been brought by him when he held that office; and the more he thought upon the subject, the more firmly was he convinced both from principle and precedent that the proceeding was right. The same proceeding for a similar offence had been instituted against another printer, who was in opposition to the defendant in politics. The brief history of the case is this.

William Cobbett had been charged with endeavouring to excite the government of the United States to hostility and war against foreign powers, and the citizens of this country to hatred, contempt and revenge against those powers. This conduct in an alien was highly reprehensible. A lawful and valid recognizance was demanded and taken of him for his good behaviour as it has been determined by the court. After this he continued in the daily habit of abusing not only foreigners and the citizens of other states, but our own government and all that was respected and venerated among us.

Upon this case two questions arise.

1. Are these proceedings, by civil suit, regular, or must an indictment and conviction precede them?

2. If they be regular, has there been a forfeiture?

The ninth article tenth section of the constitution has been read. This section was intended to secure the intervention of a grand jury wherever the consequence of a prosecution might be personal or infamous punishment. But the present case is totally dissimilar; it is simply an action of debt which can only terminate, in case of a verdict in favour of the commonwealth, in recovering from the defendant a sum of money, in the same manner as other debts are recovered. No circum