The enquirer. [volume] (Richmond, Va.) 1804-1815, 1806-08-19

N"e WORDS : Pstions nor or good fame" Ieeu,s
to be, thote who by their general evil courfe, &
habits of life had acquired bad reputation, and
were inppoied to DC dangerous TO the co.nmu-
nifty. In proc@fs ofii,ne, however, the conft,rc
ton of thele exprefsions has been extended,
tar beyond their original meaning, aud per-
ions are now, commonly held 70 find fi'ety
TOR their good behaviour, who sre-not generally
of fame, but have only been charged with
fome particular offence. 1t is laid down by
iome ancient authors, that iibellcrs may be held
TO furety far good behaviour. But on fearch.
ing the Eng'ith books of reports End bin, few
cafes, In which courts have given their opinion
on this point. The deoiiions of the Eu,iiih
courts prior to our revolution, are, with
fnme exceptions, received as authority in our
courts. Now it appears from the cafes before
the revolution, that it was BY no means an eta
blitned practice, that man charged with IL
bel, fhond, before conviction, be held 20 fure-
" for his good behaviour. in the cafe OF the
king v. Shnckhurg, 10 the year 74s-Report-
ed /. Wilton, go, the defendant was arrefted.
by virtue of warrant from the rscretary of
fate, FOR pubIi,hing blafphemous libel, called
Old Ens'and's TIE Deum."-Upon being
brought up 10 the court of kings beach. by ha-
beas corpus, in order TO be baied he offered 70
enter INTO the common recognizance for his
appearance. The attorney general infiRcd on
bail for his good behaviour alfo The lord chief
jntice faid, ii had often been taken both ways,
and he intended to take the opinion of all ,he
Judges he therefore, for the prefent, took the
defendants rscogniz9nce for his appearance
only, and made him enter into a rule, to put in
bail for his good hehaviour if the major par Of
the Judges thould be ofopiuion that he ought.
Nothing further appears to>have been done in
tins cate-in 4 marginal note of the report Of il
by fergeant Wiifsu, is mentioned the cafe OF tbe
-
point was argued before all the Judges bot they
never gave any opinion. Mr.. Heighmore. in his
treaties on bail, publiihed in the year 1888.
cites the cafe of the king v. Shuckurg and
teens TO conider the law As till untitled IT
appears from thefe authorities, that the Enelifh
judges were unwilling 10 eitablifll a practice
which they might have thought hottie TO the
genius and fpirit of the nation ,ct Us now ev-
anime how this marter has been conf.lered in
Amsrica.--The United States, in general have
at all times, been very much alive tothe iiber,v
of the preis, and the right of trial by Jury and
their contributions have flewa great ieaicufy &
i,uS. IN proIccuuons OFT
bells aeaiut the king, & officersof government IT
has been ufaaln Egg. TO praiecute BIZ way of
information; 4 mode IF proceeding, hy which
the defendant is brought to his trial hy petty
jury, at the infance the attorney general, with
cut the previous inquiry by the grand Jury
The contribution of Pennsylvania has taken
fpecial care to guard againft this. Grand iu-
res arc not to be difpen;.d with. except in GER
tain enumerated cafes, OF which libel is not one.
1t alto provides that every citizen may freely
ipsak, write and print, any fubjeGt, being
retponiihle forthe abuie of that iiJertv. ! tlink
the counfel for Mr.. Duane has gone too far, in
contending that ourconftution abfontely pro-
hibta the binding man 70 his good behaviour
for libel, before conviction. Il only provides,
that man may freely fpeak. write and print
at his own peril. being refDoGlihIe either to the
public, or any individual whom he NAV uure
II is generally underfood, and I think truly,
that this proviiiou was Intended to prevent
mems writings from being fubictt to the preyi-
ous examination and controu Of an officer ap-
pointed by the government, as is the practice
in many parts of Europe, aud was once the
practice in England now, A man tho bound
20 his good behaviour, may nil! pubifh what
he pleafcs, and If he p0bIiilles nothing unlsw
fuI. his recognizance will not be forfeited. In.
deed conider this point as having been de-
cidcd, by the fuprene court, and ultimately
1Y the high court nf .:i 7TJFT;5 ais IN ne
cafe of the commonwealth VS.. Goblet, which
thsil conhder mere particularly prefently.
But although II has been decided tiat a recar,
nizance When thus ta'cn, is not void, yet it ne
yer has hcen decided within my knowledge.
tnat II iG incumbent on Judge, or that II is Dru.
dent, or proper, TO cali for ilrety of good beha.
viour from perfon charged with libel, befc,re
trial, and that is the point now before me. T.,
deed from the charge delivered by G.. T. Sbiu.
pen in CObbett's CAFE, of which my brother
judge Smith, has favored me with very accu-
rate note, ihoud not fuppofe that the chief
iufice, or either OF the other judges, would
have thought it proper to call for this kind of
furety, except under very extraordinary cir
chmfances.-The cafe now before me is at
tended with no extraordinary circum}sncc, 70
fara9it has come 10 nv Knowledge, iudiciaUy,
and NUT c0nhne myfef TO the evidence pro-
duecd.-The mayor, who was 20 obging as
to favor me with an account Of what paTsd at
his office, declared that he co0hdered the fecuri
ty for good behaviour, rs thing quite of comrfc.
and for that reafon Only, would not difpenfs
with it. And he ALTO declared that he ore.
pared the recognizance bimfslf, in what he con-
ceved the uii2l form, without the inftrn9ion
or dire ttlon of the attorney Ceneral.-Nosv if
this practice is cfta5liilled, two confsonence s
will follow, which certainly may be attended
with great Inconvenience. in the Grt place
the initice who takes the recogniz7nce, NAV
FIX 1t in whatever fun he pleales, and then If il
| mould DC forfeited by libel Of the mildeft
nature, the whole penalty uuG be recovered.
| without any power in the court to mitigate the
puriihment, according TO the nature Of the Of
! fence. And IN the fecond place, the defendant
may BE- brought to trial for libel, e, far as ia
be burlhcned with the forfeiture of.hIs recog.
! without ska r,~svirt,o ;,,,a