
    Respublica against William Cobbet.
    It is the practice of the court to give a preference to suits on forfeited recognizance.
    The Chief Justice and Judges of the Supreme Court are justices of the peace ex officio, and have a power to take recognizances of the good behaviour; and such a recognizance taken towards the commonwealth and all the liege people, is good.
    A libel is cause of forfeiture of such recognizance, and the guilt of the party may be determined in a suit on the scire facias, without a previous conviction.
    Debt, on a forfeited recognizance for good behaviour.
    
      When this cause was moved for trial by Mr. M'Kean, the attorney general, Mr. Lewis for the defendant, submitted to the court, whether it should be tried out of its natural order, under the rules of the court.
    Mr. Dallas as amicus curia,
    
    stated that, Judge Patterson, in a late case in the District Court of Pennsylvania, determined, that the United States in civil suits were entitled to have their causes first tried.
    By the Court. There can be no possible doubt on the subject. Our rule of the 5th April 1789, directs, that “if the com- “ monwealth is not interested in the event of a suit, such cause “ shall not be entitled to a priority in the trial to other actions, “although the name of the commonwealth be used as party “thereto.” The ground thereof was, that indictments for forcible entry and detainer, small trespasses and the like, carried on for the prosecution of civil rights, where the public peace had been slightly violated, should receive no preference. The present suit is of a different kind, and the public weal is materially interested herein. Let the jury therefore be sworn.
    A summons in debt had issued in this cause, and a declaration had been filed therein. The defendant pleaded performance, &c. The attorney general replied and assigned for breach certain printed publications in a newspaper, called Porcupine’s Gazette, from the 24th August 1797, until the 16th November following, with an averment, that the said false, slanderous and malicious words so published by the defendant, were published by him, with intent falsely, slanderously and maliciously to defame the government of the United States, the officers and the good citizens thereof, as well as the government of this commonwealth, his excellency the governor, and others the officers and good citizens thereof, all which the said commonwealth is ready to verify, &c.
    Issue was joined hereupon ; but it was afterwards agreed, that the plea and replication should be withdrawn, oyer and the plea of nil debet entered, and issue joined thereon, and that the cause should be tried on its merits.
    # -| *The recognizance was taken by the Honourable Thom-94J as M'Kean, esq., late chief justice, on the 18th August 1797, in 2000 dollars, and Benjamin Davies and Richard North, sureties therein, in 1000 dollars each, “conditioned, that if the “ above bounden William Cobbet, shall be of good behaviour to- “ wards the aforesaid commonwealth, and all the liege people “until the next Court of Oyer and Terminer and General Gaol “Delivery, to be holden before the justices of the Supreme “ Court at Philadelphia, for the city and county of Philadelphia, “then the said recognizance to be void, otherwise to remain in “force.”
    
      The next Court of Oyer and Terminer for the county of Philadelphia, was held on the 26th November 1797.
    The attorney general read thirty-five different malicious, scurrilous and abusive publications in the Porcupine’s Gazette, mentioned in the replication aforesaid, defaming, ridiculing and reflecting on the general government of the Union, the principles of republican government, the people for adopting those principles, Mr. Thomas Jefferson, Mr. James Monroe, &c. the king of Spain, the French and Spanish nations and ministers thereof, the government of Pennsylvania, and his Excellency Thomas Mifflin, late governor thereof, Drs. Benjamin Franklin and David Rittenhouse, Mr. Alexander James Dallas, and other individuals, the justices of the peace, board of health, and overseers of the poor for supposed acts of tyranny and neglects of official ditty, &c. &c. &c.
    Mr. Lewis, for the defendant, after premising, that though formally this was an action of debt, it was substantially a cause of a criminal nature, proposed three grounds of defence, which he stated as follows :
    1. The late chief justice of the state had no power to take a recognizance of good behaviour, in the case of a libel and before conviction.
    2. But if he had such power, the present recognizance is not conformable to the statute of 34 Edw. 3, c. 1.
    3. The present recognizance has not been forfeited by the defendant, nor has it been regularly pursued.
    1. At common law there were conservators of the peace, but their powers only extended to offences committed within their own view. The first statute which respected justices of. the peace, was 1 Edw. 3, but their powers were not extended beyond mere conservators. 3 Burn’s Just. (14th edit.) 4, 5, 6. 2 Hawk. 34, § 11. There was no jurisdiction at common law, to take a recognizance for the good behaviour. The stat. of 34 Edw. 3, c. 1, gave that power which was confined to justices of the peace. *4 Burn’s Just. 269, 270. Whatever may have been the practice of the judges of the Supreme Court, since the last L constitution of 1790, that instrument is silent, as to their being justices of the peace, throughout the state ; though by article 5, § 29, the president of the courts in each district, and the judges of the Court of Common Pleas in their respective counties, are declared to be justices of the peace, so far as relates to criminal matters. 3 Dali. Laws, Introd. 31. Binding to the good behaviour at the common law might be the consequence of a conviction by verdict, but could not be exercised originally. 4 Burn’s Just. 281.
    The attorney general and Mr. Ingersoll answered : This first exception will be seen to be totally void of foundation. By the act of assembly of 22d May 1722, “for establishing courts Of “judicature,” the judges of the Supreme Court were empowered “to minister justice to all persons, and exercise the jurisdictions and powers thereby granted, as fully and amply to all “intents and purposes whatsoever, as the justices of the Court “of King’s Bench, Common Pleas and Exchequer, at West“minster, or any of them, may or can do.” Galloway’s edit. Pennsylvania Daws, 114, § 13. Miller’s edit. Vol. 1, pa. 85.— By the 24th sect, of the 2d chapter of the constitution of 1776, “the Supreme Court shall, besides the powers usually exercised, “have the powers of a Court of Chancery, so far, &c. and such “other powers as may be found necessary, by future general “assemblies, not inconsistent with this constitution.” 1 Dall. Append. 58. By the act of 28th January 1777, §4, “the judges “of the Supreme Court, shall have, use and exercise all the “powers, authority and jurisdiction, that by former laws in force “have been theretofore used and exercised,” &c. 1 Dall. Laws, 723. The 6th section of the 5th article of the constitution of 1790, pursues the old constitution almost in totidem verbis. 3 Dali. Laws, Introd. 30. And in the beginning of the schedule thereto, it is declared, that all laws in force, at the time of making the alterations therein, and not inconsistent therewith, shall continue, as if the alterations had not been made. Ib. 36. It clearly then follows, that the jurisdiction of the judges of this-.court is not restrained by the present constitution, and that they have the powers of the justices of the King’s Bench, in England. There those justices are sovereign conservators of the peace, &c. 1 Bac. Ab. 592. 2 Com. Dig. 589. 4 Inst. 73. 9 Co. 118. b. In the form of a record of conviction of murder, they are styled justices of the peace. 4 Bl. Com. Append. 2. They are ex officio general conservators of the peace, throughout the whole kingdom, and may commit all breakers of it, or bind them in recognizances to keep it. 1 Bl. Com. 350. A surety *96] for the Peace is *taken by a competent judge of record. ” Wood’s Inst. 421, 422. — Binding to the peace or good behaviour, is a species of preventive justice; 4 Bl. Com. 251; and it may be done by any justice of the peace, or those who are ex officio conservators of the peace, according to their discretion. Ib. 253. And one may be bound to his good behaviour, for causes of scandal, contra bonos mores. 1 Haw. c. 61, § 2. The justices of the Court of King’s Bench are styled the keepers of the morals of the kingdom of England ; so are the justices of the Supreme Court as to this state.
    It would be strangely anomalous, if the presidents of the districts should be justices of the peace within their respective districts, and that power be denied to the justices of the Supreme Court, whose jurisdiction confessedly pervades the whole state.
    By xi-ie Court. We have no hesitation in saying, that the late chief justice had full power to take the present recognizance of good behaviour, in the case of a libel, and before conviction. By the terms of the old provincial act of 1722, the judges of the
    
      Supreme Court here, have all the powers of the justices of the Court of King’s Bench in' England, who clearly are justices of the peace throughout the kingdom ex officio. These powers were secured to each of us, by the constitution of 1776, the law of 1777, the new constitution of 1790, and the schedule thereto. The constitution under which we live, is far from being silent on the point of jurisdiction, to be exercised by the judges of this court. There was a strong necessity for giving the presidents of the district courts and the associate judges of the Common Pleas, the authority of justices of the peace, by the express words of the constitution, because it was intended that a new power should be superadded to their offices; but that reason does not hold in our case, the members of this court having uniformly exercised the power, near seventy years before.
    2. Mr. Lewis for the defendant. The recognizance as taken is not conformable to the words of the statute of 34 Edw. 3, c. 1. There the expressions are, “ sufficient surety and mainprize of “their good behaviour towards the king and his people,” &c. 4 Burn’s Just. 270. Here it is expressed, “towards the aforesaid commonwealth and all the liege people,” &c.
    By the CouRT. We see no want of conformity here; the construction is very plain and evident. Our difficulty rests on the ground, whether a conviction of the defendant in a court of criminal jurisdiction for the libellous publications charged against him, ought not to have preceded the present suit; and we wish to lead the researches of the counsel to this point.
    *3. Mr. Lewis. Regularly, this proceeding should have originated by scire facias, and not by a summons in [*97 debt. 4 Burn’s Just. 267. 1 Haw. 130. Dall (old edit.) c. 70. But if we have any advantage herein, it has been agreed to wave it. Under the present constitution, (art. 9, § 10. 3 Dall. Laws Introd. 34,) informations can only be filed in certain cases. But the present method of procedure puts all in the power of the judge or justice, who according to his discretion is to determine on the quantum of the recognizance. His discretion, and the indiscretion of the party charged, settles the forfeiture, without the intervention of a grand jury, to pass between the state and the party. We have been taught to believe, that grand juries are bulwarks and ramparts between the public and the individual; an attempt to deprive the defendant of the benefit of their review of his conduct is indeed a libel on the laws. By the 7th section of the 9th article of the state constitution, “printing presses shall be free to every person who undertakes “ to examine the proceedings of the legislature or any branch “ of government, and no law shall be made to restrain the right “ thereof. Every citizen may freely speak, write and print on “any subject, being responsible for the abuse of that liberty. “In prosecutions for the publication of papers, investigating 
      “ the official conduct of officers, or men in a public capacity, or “ where the matter published is proper for public information, “ the truth thereof may be given in evidence ; and in all indict“ments for libels, the jury shall have a right to determine the “ law and the facts under the direction of the court, as in other “cases.” 3 Dall. Laws Introd. 34. Some special damages must be proved to warrant the inquiry into a libel. The pursuit of' a libel in a criminal procedure, is alien to the constitution of England. Letters concerning libels, (ascribed to Ld. Camden,) 23, surety for the good behaviour is only good as warranted by the stat. 34 Edw. 3, c. 1. Ib. 25, and this extends only toward the king and his people. One may not be bound over to his good behaviour for publications respecting foreign nations, foreigners, or inhabitants of other states. Every one may freely write on public national measures, whether of our own or foreign countries ; and in times of general calamity, as during the prevalence of a plague or yellow fever, the system of treatment becomes an important object of discussion, on which every man has a right to express his sentiments. Whether any publication is an abuse of the public liberty, may be inquired into on the presentment of a-grand jury, and tried in the usual method by a petit jury; but not by such a mode of procedure as the present, in the nature of an *information, not within the *98] exceptions of the 10th section of the 9th article of the constitution of Pennsylvania.
    
      E contra for the commonwealth.
    The letters ascribed to Ld. Camden, cited for the defendant, were adapted to the heat of the times, and not to the British code of laws. Their intemperance clearly appears from the sentiments read out of page 23, and they ill deserve the name of an authority. It is apprehended, that the 10th section of the 9th article of the constitution merely respects informations, in cases wherein corporeal punishment may be the consequence of a conviction. This is merely a civil action, brought in the name of the commonwealth, on a recognizance contended to be forfeited, wherein money only can be recovered.
    The common law of England, as modified by our constitution, acts of assembly and local usage, is binding here; and it is insisted that the present mode of procedure is authorized fully thereby. The first inquiry then is, has the defendant forfeited his recognizance ?
    A recognizance for keeping the peace may be forfeited by any actual violence, or even menace, or by any unlawful action, that either is, or tends to a breach of the peace, or by any offence enumerated before in the nth chapter of the author’s 4th book. 4 Bl. Com. 255. In the chapter referred to are forcible entry and detainer. Ib. 148. Spreading false news, and false and pretended prophecies. Ib. 149. Any thing tending to provoke, or excite others to break the peace, and libels. Ib. 150. The sending an abusive private letter to a man, is as much a libel as if it were openly printed, for it equally tends to a breach of the peace. Ib. 150. 2 Brownl. 151. 12 Co. 35. Hob. 215. Poph. 139. 1 Hawk. 195.
    A recognizance for the good behaviour may be forfeited by all the same means, as one for the security of the peace may be, and also by some others, as by speaking words tending to sedition, &c. Ib. 257. Any thing which tends to a breach of the peace is a forfeiture of the recognizance. Cro. El. 86. Any written or printed publications, pictures, signs, or the like, which set a man in an odious or ridiculous light, and thereby diminish his reputation, are libels, and every libel has a tendency to break the peace, or provoke others to break it. 3 Bl. Com. 125. 4 Bl. Com. 150. 1 Hawk. 193, 195. 2 Wils. 403. x Lev.. 139.
    It is then evident, that a recognizance for the good behaviour, or even for the peace, may be forfeited by a subsequent libel, menace, &c. or any matter tending to a breach of the peace. The next inquiry is, what is the regular mode of recovery ?
    *If a recognizance be forfeited in England, it must be r* estreated into the exchequer, and process issue thereon, in that court. Dali. 277, 286. Here the same is to be estreated into this court. It is objected, that a conviction in a court of criminal jurisdiction of the cause of forfeiture, ought to precede this suit. We ask, what species of indictment could be formed for menace, threats, &c. For .many causes of forfeiture, indictments would not lie, and the supposed pre-requisite could not possibly be complied with. The law is not to be reproached for such absurdity, with any degree of justice. The recognizance being broken, becomes forfeited or absolute; and being estreated and sent up to the exchequer, the party and his sureties having now become the king’s absolute debtors, are sued for the several sums in which they are respectively bound. 4 Bl. Com. 253.
    If a recognizance is given for good behaviour, he cannot be indicted for a breach of the recognizance before a scire facias upon it, for he may have a plea for his excuse. 5 Com. Dig. 341. 1 Rol. Abr. 900, 1. 5. In a scire facias on the forfeiture of a recognizance for breach of the peace, the writ was held good, on a verdict against the defendant, that he had broke the peace, without the words vi et annis. 3 Bulst. 220. In Cro. Jac. 598, we find several exceptions taken by counsel to a scire facias on a recognizance for good behaviour, but none like the present; and in Rex v. Heyward et al. Cro. Car. 498, the ground on which the defendants obtained a verdict, was that though the principal spoke to a constable words of heat and intemperance, they did not tend to a breach of the peace. M. was bound with sureties for his good behaviour; then M. was indicted for that he being so bound, did assault I. S. and so had forfeited his recognizance; the indictment against M. was quashed because he ought to have been prosecuted by scire facias, and not by indictment. T. Raym. 196.
    In scire facias on a recognizance to keep the peace, Ryder, C. J. declared, that the question, whether the breach of the peace by assaulting another person, did amount to a forfeiture of the recognizance, might be determined on the plea of not guilty, to the scire facias. Sayer 139, 140.
    These authorities, it is hoped, will fully remove any doubts which may have arisen in the minds of the court, as to the present mode of procedure. There is no partiality in the case. The same steps have been pursued as to William Duane, the editor of the Aurora.
    What hardship occurs here ? No forfeiture is incurred until the guilt of the party is ascertained by an impartial trial of his *iool *Peers- While strong sensibility is expressed for the of- -* fender, let not the case of unoffending and innocent persons be neglected. If the formation of democratic societies for the purpose of reviewing and censuring the government of the union, is improper, and leads to great abuses, surely the conduct of an alien to our interests and laws is more highly reprehensible; when he attacks in the grossest and most scurrilous manner both public and private measures and characters. His publications are replete with gall and wormwood, without an atom of useful information to the public mind.
    To effect the purposes of preventive justice, a discretion must necessarily be lodged with the magistrate. So it was lately under a law of the United States, giving power to the president to remove suspicious aliens. If a justice of the peace exercises his office with wanton cruelty, this court will order an information against him for misconduct in office. If any member of this court should be so unmindful of his high duties as to exact oppressive and tyrannical recognizances, he is subject to impeachment, or a removal from office, on the address of two thirds of each branch of the legislature.
    Is the intervention of a grand jury indispensably necessary in all cases, before a party shall be punished for a libel ? The learned gentleman who now advocates the defendant’s cause, contended with success in the case of Respub. v. Oswold, that this court, though the injured and slandered party, might determine on the question of libel without the aid of either a grand or petit jury, x Dali. 319.
   Shippen, C. J.

We entertained doubts at one stage of this cause, respecting the propriety of the present method of recovering this recognizance. Our constitution guards against in-formations unless in certain excepted cases ; and prosecutions for libels in England generally originate by information. We thought there might be oppression in the case of a single justice, with all the checks placed on him by the law, who might take bail in any indefinite sum ; and many inconveniences might arise to the sureties, when the principals had gone off and were tried unheard. But we are bound by positive adjudged cases, and must be governed by the law as we find it. If any evils arise, the legislature only are competent to remove them.

Referred, to in 1 Binn. 422.

The authorities cited by the counsel for the state fully prove, that the guilt of the party may be determined on the scire facias, on the recognizance.

The jury in this case have the constitutional right of determining the law and the facts, under the direction of the court *whether the publications of the defendant are libels ; and if they view them in the light we do, they will have no [*101 hesitation in pronouncing them to be such. Libels are destructive both of public and private happiness, manifestly tend to breaches of the peace, and are good causes of forfeiture of a recognizance to keep the peace or of good behaviour. They merit every discouragement, to which they may be legally subjected by a court and jury.

Verdict for the commonwealth.  