The Pennsylvania packet, or, The general advertiser — Lancaster, Pa.;Philadelphia, Pa., 1783-01-21 00:00:00, page 2

A true narrative of the conduct of the iate grand jury
of the city and coun y o' Philadelphia, at a fefli^ns
of oyer and terminer and general goal delivery, be
gunt"e gJth December. 1782.
f, N Tuesday the gid December last, a bill was de
-4 livereel to the grand jury by the attorney gene
ral against Eleazer Cfwald, for printing and publish
ing an infamous libel upon the supreme court, on the
28th Sept mber, pre. ding (refpe&ng the proceedings
against a certain Francis Nichols, who had plead guil
ty to anlindi&nnt for an assault and battery on a
councillor of the Rate) and a single witness fentto them,
who proved that ne had purchafel the news-paper,
containing the libel, from the defendant, who had also
coufeffed in open court, that he had printed and fold
that papr.
Tibs was all the evidence necessary, in the opinion
of the attorney general, for the finding of the indict
ment, as the words published appeared to every reader
to be defamatory. For this he relied upon the law, as
mentioned in 4th Mackflon*, page 300, where speaking
of the grand jury, he uts those words, " they are on
ly to hear evidence in behalf of the prosecution: for
the finding of an indictment is only in the nature °f
an accusation, which is afterwards to be tried and de
termined ; and the grand jury are only to en
quire upon their oaths, whether there be fufficient
ciufc to call upon the party to answer." Thi^
has been the law for ages. It is true, there have been
some writers, who have pretended to hold a different
opinion; but their opinion has never been adjudged
or received for law. Indeed the meaning of the word
c< indiament," Lems to gr e Jatisfaßi n on this head,
it is ih law an " accusation" only. However, after a
little time the complexion of some of the jury being
considered (it was thou.ht advifeable to fend them three
gentleman, of as much veracity and credit as any of
their body, to prove that the libellous part of the
publication was falfe. Titis was not only proved by
the witnesses but by the records of the court, for inl
- of the court's refufing to hear any testimony,
two wifneffes who w re all that were offered, were sworn
and examit ed on the part of Francis Nichols, and his
two counsel fully heard. This was not a liftle perplex
ing to some of the jury, and they spent the next day
in fending ft r and examining whom they pleased, with
out making any application 10 the court to have them
qualified, or ever mentioning their names. Among these
was Francis Nichols, who was at the time one of the
them in writing, and this would prevent mistakes :
they contented them Elves with one, which in fubflance
The attorney general wa^ sent for by them, and ex
amined, notwithstanding the objections of Mr. William
Bingham, to whose opinions, and those 0 two or three
others, several well meaning men paid too much re
fpeft. One of Mr. Bingham's objections merits atten
tion, it was that he, the attorney general, was an in
terefled witness, for the commonwealth, and proved it,
by asking him if he was not the attorney general, and
concerned in all public prosecutions. There were not
however twelve of the jury for finding the bill, and it
was returned on the 2d January, “ ignoramus," be
cause, as it is alledged Mr. Ofward might have been
mifinformed. Thus the firft bill issued, without a sin
gle remark from the bench.
The fecund bill was presented on the fame day, and
a single witness sent to prove the publication of the li
bel, which was signed " A Frien Ito the Army ; " af
terwards messieurs Burd, Jngerfol and Levi, three gen
tlemen of the law, were sent to prove, that it was
falfe. They attended the jury, and were in a little
time informed by Mr. Pringle, that the bufmefs was
over, and they need not tarry any longer. The ju
ry soon after returned the bill “ not a true bill." The
court then told them, for the firft time, of their milbe
haviour, and reprimanded them in a languageand with
a fpiri^ becoming intelligent and independant judges.
A majority, notwithstanding the efforts of messieurs
Bingham, Caldwell and Shee, who appeared to be the
oracles of the jury, desired, by their foreman, that
the bill might be returned to them again, and they
would re-confider it; they were told no good fruits
were expe&ed from it, after what had passed; but upon
a fecund request by the foreman, it was re-delivered
to them; and they were at the fame time told, if three
witnesses were not fufficient the should have fifty;
Mr. Samuel Caldwell observed, " the more the bet
ter.'' They then retired, informing the court they
would meet the next day at ten o'clock. The three
gentlemen before named, waited upon them about the
time appointed, and after tarrying near an hour, were
told, they would not be examined, and they then came
away. In the mean time.the jury sent for the attor
ney general, and Mr. Bingham put several questions
to him, which he declined answering, unless they were
in writing; if they were, he laid, be would answer
was, whether after a bill was returned ignoramus by
a grand jury, they could receive it back and reconsi
der it? The answer was, they might, while the lame
court was fitting, either do that or receive a new bill,
and findit. To th's point it is laid down, in 4th Eack
ftone 301, that if a grand jury return a bill ignora
mus, or not a true bill, the party is difeharged ; but a
frefh bill may afterwards be prefered to a subsequent
jury. Such a return was never yet considered as an
acquital, nor can it be pleaded in bar of a new in
di&ment found for the fame offence; but this grand
jury knew the law better than the attorney general
and the court together. Another anecdote must not
be suppressed : while the grand jury were deliberating,
whether they should hear the evidence in support of
the charge, and before they had determined to refufe
it, their foreman, Zebulon Potts, esquire, had been in
a private room in conversation with Mr. Eleazer Os
wald, the printer and publisher of the libel, Mr.
Thomas Proftor, the supposed author, and Jacob
Bankfon, esquire, their supposed council, &c.
Can any grand jury exped, that such contemptu
ous and illegal conduct should escape without censure,
at least from a sensible and upright court? Can they
expeft not to be told, that the defendant had printed
bail for Mr. Oswald's appearance, and the supposed
author of the libel.
For the PENNSYLVANIA PACKET.
and published the papers deemed libels; that they
were falfe; that every reader must fee that they were
defamatory ; and that they were ma icious, no man,
who had any regard to character, would dispute; of
all which tie mod fatisfaHory evidence was offered
to them, but they refused to hear it? That though
there mig^t have been inflances, in Philadelphia, of
grand juries requeuing the court to qualify and fend
them witnesses, that were in favour of the party ac
cused; yet none, before tne present had ever treated
the court, with so much contempt, as to fend for and
examine witnesses without their knowledge.—That
the court alone were by law to judge of the compe
tency or incompetency of a witness; the jury of his
credit.—That if witnesses were heard in private
and ex parte, for the person accused, the attorney
general or prosecutor could have no opportunity of
producing witnesses to do credit to them, or to difap
provewhat they alledged. That it was some what
remarkable, the jury had not followed this ex
ample in any other matter given them in charge, tho'
they had many, both of a capital and criminal na
ture. That if such a precedent should be edabliffied
by the court fuhmitting to it; both the court and
petty j r rv would be ufelefs,,and the constitution vi
olated. That, above all, if the grand jury could, by
law, refufe to hear and examine witnesses sent to
them by the court, under oath, to prove this offence;
by the fame parity of reason, they might refufe to
hear any wit effes to prove a robbery, murder, or
tr°a<nn: and then, for want of proof, return the in
dif?menr, “ not a true bill." In fine, that the con
dust of this grand jury was incomgrehenfible ; and
they w # re desired to bring the fubjeft to a public
trial, when all the people who thought proper, might
attend and judge for themselves, and the whole affair
would be legally and fully drfcuffed, and not smother
ed in a corner in a tavern, as it appeared now to be—
That the people anxiously wished it not that there
was any doubt that the libels prosecuted were infa
mous lies, but that they might know, whether any re
chefs, for such wrongs, could be obtained in the courts
of joftice; that the printers desired it; that if redress
could not be obtained from the laws of the common
wealth, every man would confider himfelf as the guar
dian of his own reputation, and the laws of nature
would take place; and in such a case, we should hear
of affanits and batteries, cutting off of ears, challeng
es, a ffaffinations and murders without end. —That the
court lad done their part, they had laid hold of the
firft opportunity that had fairly occured ; it refpeded
themselves; if the injured did not complain, they did
not think it eligible or obligatory upon them, under
present opinionsand party prejudices, to step forth
officially.—That their good view# had been fru ftrated
by the misb p hav!our of one grand jury, but they flat
tered themselves others might judge better, and the
public peace be yet preserved ; but if the case should
turn out otherwise, the blood fliould not be on the
heads of the judges, or of their children. Was there
any thing improper in all thisHThere was an omissi
on- the grand jury were neither imprisoned nor fined.
I well know the importance of every man, in his
own opinion; it were to be wished that every man
would pay a due attention to the importance of others,
who, from their Rations, must be supposed to possess
superior abilities.
There is a refp^a due to a grand jury, but there
is a greater refpeft due to the highest court of crimi
nal jurifdi&;on in the Bate. The grand jury for Phi
ladelphia have no right to prescribe the rule of law
throughout Penn ylvania. in which there are annual
ly returned upwards of sixty grand juries, who have
equal pretentions in this particular with them; and
if each was to difeover the fame vanity, what would
be the result? I mean not to displease, but to reform.
Three of this jury, namely, colonel Knox, 4and mes.
fieurs Pringle and Bright, have not signed the memo
rial; several others, I am told, were against these
proceedings, and for finding the indictments, and
though, trey have not distinguished themselves, I ex
cept them out of these animadversions.
After all this, sixteen of these gentlemen have had
modesty enough to appeal to the world; to the world
and their own confeiences I now leave them.
From the London Gazette Extraordinary, November
According to the advices previously obtained, J had
reason to expeC tto find the enemy of cape St. Mary's ;
but\by authentic intelligence I had then an opportu
nity to procure. I learnt that the combined fleets,
confiding of 50 fail of three and two decked (hips, had
taken a Ration some time before in Gibraltar bay.
On the morning of the 11th, the fl et entered rite
Streights, and the van arriving off Gibraltar bay a
short time after the close of the day, a very favoura
ble opportunity offered for the iiore (hips to have
reached their defined anchorage without molestation
from the enemy; but for want of timely attention to
the circumstances of the navigation, pointed out in the
inftrudioAs communicated by captain Curtis, only
Admiralty-office, Nov. 7, 1782.
Captain Henry Duncan of his majesty's ship the
Victory, arrived this morning with dispatches from
lord vifeount Howe, and also with dispatches from
captain Curti, of the Brilliant, who commanded the
brigade of seamen at Gibraltar, of which the follow
ing are extracts.
Extract of triplicate of a letter from lord vifeount
Howe, to Mr. Stephens, dated on board the Vi&o
ry, October 21, 1782, cape Spartel, E. N. E. 40
leagues.
RESERVING the more particular account of my
proceedings to be delivered on my return 10 En
gland, I fend the Peggy cutter now to acquaint you,
for the information of the lords commissioners of the
admiralty, that after much delay by contrary winds,
and very unfavourable weather, the fleet arrived off
cape St. Vincent on the 9th instant.
JURISPERITUS
Philadelphia, Jan. 13 1783.
8, 1782.
four of the thirty.one, which had kept company with
the fleet on the passage, effeded their purpose.
Very tempefluous weather in the night of the loth,
had put two of the enem)'s two decked ships on shore,
a third loft her foremaftand bowsprit, and a fourth
had been driven under the works of the garrison, and
captured ; two more went out of the bay to the eafl
ward. With the rest of their force they put to sea the
evening of the 13th, to interrupt the introduaion of the
remaining flore-thips ; and having the wind at W. N.
W. they bore down upon the fleet, then off Fangerolle,
in or^er of battle. Upon fight of the fleet (Landing to
the southward) about nine at night, they appeared to
haul to the wind onthe larboard tack. In the morning of
the qth, the fleet being to the southward of the enemy 6
or 7 leagues, and the wind changing soon after to the
eastward, the opportunity was taken to pass such of the
(lore-ships as were then with the fleet into the bay.
On the night of the 18th, the rest of the store-ships,
which had been ordered to a special rendezvous with
the Buffalo, on fight of the enemy on the 13th (the
Thompson victualler, that had parted company in the
mean rime executed) were likewise anchored in Rofia
bay. The troops, embarked in the ships of war, toge
ther with a large supply of powder, being landed at
rhe fame time, and the wants of the garrison amply
provided for in every refpeft, I proposed taking ad
vantage immediately of the easterly wind, which had
prevailed the two or three preceding days, for return
ing through the Streights to the westward.
At break of day on the 19th, the combined force of
the enemy was seen at a little distance to the N. E.
The fleet being at that time so nearly between Europa
and Ceuta Points, that there was not space to inform
in order ofbattle on either tack, I repaffed the Streights
followed by the enemy.
The wind changing next morning (the 20th) to the
northward, the combined fleets (confining of forty five
or forty fix fllips of the line) fiill retained the advantage
of the wind.
Extract of a letter from lord vifeount Howe to Mr.
Stephens, dated on board the Victory, at sea, OCto
br 24, 1782,
SI R,
DEEMING it essential to bis majefty'sfervice,
that the debarkation of the troops and stores at
Gibraltar should be conynunicated to the lords com
missioners of the admiralty as soon as possible, I sent
th^ Peggy cutter the 21R instant, with a general report
of my proceedings, in execution of my orders, to that
period.
A duplicate of that report went in the Buffalo, or
dered for England the next day, on account of the Rate
of her wounded malls ; and I euclofe a triplicate of the
fame by this conveyance, to conned the relation of
the different circumstances refpeding the employment
of the fleet, which have since occured. Some of the
ships having fußained more damage in their malls and
yards by the fre of the enemy on the 20th than was
at firft observed, the necessary repairs were not com
pleted until the 22d. But as it was mostly calm in the
mean time, no advantage could have been made of
an opportunity to follow the enemy, (who, when last
seen on the 214, were Handing off to the N. N. W. by
the wind on the starboard tack) if the masts had been
earlier secured.
A lif t of tee killed and wounded will likewise accom
pany this dispatch. ( have only co express my re
gret, that the httle confidence the enemy shewed in
their fup f riority, by keeping always as near as they
could haul to the wind, prevented the full effeft of the
animated exertions, which, I am sure, would have been
made by every officer nd teaman in the fleet under
my command, if they could nave closed with their
opponents; hut as I judged such nearer approach
could not then be seasonably attempted, I made no
change io the difpofitjon of the ships, as formed at
firft to receive the enemy.
The British fleet being formed to leeward to receive
them, they were left, uninterruptedly, to take the dis
tance at which they should think fit to engage. They
began their cannonade at fun set on the van and rear,
seeming to point their chief attack on the latter, and
continued their fire along their whole line, at a con
siderable defiance, and with little effect, until ten at
night. It was returned occasionally from different ships
of the fleet, as their nearer approach at times afford
ed a more favourable opportunity for making any im
preffiom upon them.
The enemy hauling their wind, and the British fleet
keeping on all night with the full fail directed before
the commencement of their fire, the fleets are now
much separated : but as I conceive the knowledge of
the relief of Gibraltar may . be of much consequence
at this time, I take the opportunity, while it is now
almost calm, and the ships are refitting the damages
they have fu Rained in their mafls and rigging by the
enemy's fire, to forward this dispatch without further
delay.
P. S. The Minerva transport, with the baggage
of the regiments embarked in the fllips of war, sepa
rated from the fleet in the night of the 13th, and was,
I hear, since taken by the enemy.
For similar reasons I do not dwell more particular
ly on tee merits of he flag officers of the fleet on the
fame occasion, bing certain they would disregard any
commendations of their efforts against an enemy who
declined giving them an opportunity to difeharge the
duty of their Rations, in repelling a more serious at
tack : but, at the fame time, I am reminded of the ad
vantages derived to his m fray's service, from the ex
tensive knowle Ige of the difficult navigation withq
the Strcigilts acquired by, and the unremitted assidu
ity of my fir^ caotain, 1 evefon Gower.
Having had but very little wind from the N. E.
chiefly fincethe 21R, I cannot much longer, with pru-
Henc^, (under the reduced date of the water and stores
in many oft e ships) make the pursuit of the enemy's
fleets, which I suppose are on their return to Cadiz,
the firft object of my attention.
Captain Duncan, of the Vidory, taking his passage
in the Latona, is discharged with this dispatch ; and as
captain Curtis, who was sent off to me (or the lafi time