1788.
Levy, in fhewing caufe, contended, that the act of Affembly had departed from the practicein England; and that in directing a Teʃtatum it referred only to the Courts of Common Pleas, which are limited in jurifdiction to a fingle county : That the fame acts eftablifhed the jurifdiction of the Supreme Court, and that, therefore, as the Legiflature was filent with refpect to iffuing a Teʃtatum from this latter court, it was fairly to be inferred, they did not mean to require it. He further infifted that the practice fupport his conftruction, and that a de-
tranfcript from the records, was fhown to him, yet it was not fubfcribed by the Prothonotary, nor was it under the feal of the court. This, therefore, could not be a fufficient document to fet afide his recollection of the fentence; it was no legal evidence of the fact which it ftated, (Gilb. law oƒ Ev. 23.) and the little time that elapfed between the opinion given to the Jailer, and the directions for Mr. Oʃwald's releafe, we may fairly prefume to have been confumed in examining the records.
On the ʃecond point, he engaged in a long and ingenious difquifiction upon the nature of what is called the liberty oƒ the preƒs ; he reprefented the fhackles which had been impofed upon upon it during the arbitrary periods of the Engliʃh government ; and hence deduced the wifdom and propriety of the precaution, which declares in the bill oƒ rights, that the prefs fhall not be fubject to reftraint. He gave an hiftorical narrative of the Britiʃh acts of parliament and proclamation, which debarred every man of the right of publication, without a previous licence obtained from officers, eftablifhed by the government to inspect and pronounce upon every literary performance ; but obferved, that this oppreffion (which was intended to keep the people in a flavifh ignorance of the conduct of their rulers) expired in the year 1694, when the dawn of true freedom rofe upon that nation. 9 vol. State. at large, p. 190. Since that memorable period, the liberty of the prefs has ftood on a firm and rational bafis. On the one hand, it is not fubject to the tyranny of previous reftraints, and, on the other hand, it affords no fanction to ribaldry and flander; – fo true it is, that to cenfure the licentiouʃneʃs, is to maintain the liberty of the prefs. 4 Black. Com. 150. 151. 152. Here, then, is to be difemmed the genuine meaning of this fection in the bill oƒ rights, which an oppofite conftruction would proftitute to the moft ignoble purpofes. Every man may publifh what he pleafes ; but, it is at his peril, if he publifhes any thing which violates the rights of another, or interrupts the peace and order of fociety ; – as every man may keep poifons in his clofet, but who will affert that he may vend them to the public for cordials? If, indeed, this fection of the bill of rights had not circumfcribed the authority of the legiflature, this houfe, being a fingle branch, might in a depfotic parocifm, revive all the odious reftraints, which difgraced the early annals of the Britiʃh government. Hence, arifes the great fundamental advantage of the provifion, which the authors of the conftitution have wifely interwoven with our political fyftem; not, it appears, to tolerate and indulge the paffions and animofities of individuals, but effectually to protect the citizens from the encroachments of men in power.
It has been asserted, however, that Mr. Oʃwald's addrefs was of a harmlefs texture ; that it was no abufe of the right of publication, to which, as a citizen, he was entitled; and, in fhort, that in confidering it as a contempt of the court, the judges have acted tyrannically, illegally, and unconftitutionally. But let us diverft the fubject of thefe high-founding epithets, and the reverfe of this affertion will be evident to every candid and unprejudiced mind: For, fuch publications are certainly calculated to draw the adminiftration of juftice from the proper tribunals; and in their place to fubftitute newfpaper altercations, in which the moft fkilful writer will generally prevail againft the merits of the cafe. But it is moreover the duty of the judges to protect fuitors, not only from perfonal violence, but from infidious attempts, to undermine their claims to law and juftice. Hence, Lord Chanceloor Bardwicks, (who was an ornament to his country, and not one of whofe decrees during the period of twenty years which he fat as chancellor, was ever reverfed) has defcribed three forts of contempts–1ft, Scandalizing the court itfelf,
2dly
