1788.
Lesher versus Gehr.
THE Venue in this case was laid in Philadelphia, and Judgment being entered, an execution was thereupon issued immediately into Bucks county.
Sergeant obtained a rule to shew cause, why the execution should not be quashed, alledging that it ought to have been preceeded by a Fi. fa. in the county where the Venue was laid, in order to ground a Testatum into Bucks.
Levy,
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, with to understand the principle of so interesting a case, to delineate the leading features of the doctrine which be maintained.
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 uncontrouled 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 favor 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 juries 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 possession. 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 authorising insidious falshoods 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 does 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; 1ft, 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.
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
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