In the serial edition, this appeared as Chapter 10. In revising, Brackenridge moved it backward within the text and made extensive changes, which are noted below.
1. This section division is placed as it appeared in the 1819 novel version.
2. This paragraph was added for the newer edition.
3. The following paragraph was removed in 1819:
"One thing however I must correct. Speaking of liberal and enlightened lawyers, I have said they may be called the light of the country! I was thinking of the revolutionary period, when a constellation of lawyers, rose from one end of the continent to the other, and in public bodies, were the light of the country. For the particle the, greatly alters the meaning. It is intensive, and gives a distinction and superiority which was not intended. The phrase is taken from the Scripture Ye are the light of the world! This was spoken of the Apostles, whose successors the Clergy, the Ministers of revelation, are doubtless the lights of the world, and to them the phrase is particularly appropriate. The light of the world, as we call Homer the poet, or Aristotle the stagyrite. Or of Cokes writings we say 'the reports.'"
4. This long section was excised from the original chapter:
"I have spoken of judges being impeached; and of the consequential contempt as too delicate to touch upon. The fact is, that it relates to the ground of their impeachment; which, at the time of this present writing August 1804 is depending before the senate of the commonwealth. But nothing hinders to canvass the general principle, without an application to the facts under consideration: or rather to explain the meaning and effect of a consequential contempt. For it is a thing buried in obscurity by the very phrase that is used to express it. A contempt of the court! One would suppose that it can mean only, treating the court with contempt. That is the meaning of what is called the direct contempt; which is an open insult and resistance to the powers of the court, or the persons of the judges who preside there. 4 Black.283. But there is what is called the consequential contempt, and which is but constructively a contempt, and does not mean a disrespect of the court, but of the law. The court which administers the law, is put by a figure for the law itself.
It is the technical term, the word contempt that misleads. It is not the court that is despised. Nor do they feel it as such. It is the law; it is the administration of justice that is slighted. Common sense can understand this. The Scripture has the idea, and the language of the constructive contempt. He that despiseth you, despiseth me; and he that despiseth me, despiseth him that sent me. It is not the court that is despised; but the law which they are bound to administer. We say against the peace and dignity of the commonwealth, in an indictment; and yet the commonwealth, that is, the body of the people, know nothing of the matter, and feel neither peace nor dignity affected. A tall man which, in the old language means a strong man, impels another with his foot upon what are called the posteriors, The commonwealth, in fact, that is the body of the people, never hear of it, or take any heed of the consequences; nevertheless the law pursues, and punishes in the name of the commonwealth.
But a principle of these contempts, is an interference with a case depending in the courts of justice. It is the policy of the law to provide against this, by giving the suitor a right to call upon the court, for a summary interference to restrain it.
But why not turn the matter over to a jury; and let them in the first instance find a bill? I grant that where the libel is upon the court itself, it might be prudent, and would answer the end as well, to let the fact come forward established in that way. But where the cause in court is affected; where any blemish is thrown upon that while it is depending; the right of a third person intervenes: the right of the suitor who calls upon the court to interfere by a summary proceeding. Can the court refuse in this case? I call upon you Messieurs Judges, for protection; for redress; you have the power; it is the law of the land. You are sworn to dispense the law; it is your duty. I demand my right. My case shall be considered pure until it is determined otherwise by a final hearing and decision. Will you tempt me to break the peace; to murder this man that has attacked my interest and my honour, by his publication, relative to the controversy that is in law between us. If you withhold the summary redress, which the law gives, you tempt me to break the peace; and his blood be upon your heads. Shall I lie by, and let the imputation rest upon my cause, or affect the decision, and take my chance of a circuitous prosecution, when the law gives me an immediate protection, in the shape of supporting your dignity. I have a right in the power which you possess; and I call for the exercise of that power.
This is called the power of the court; but it is founded upon the right of the citizen. It is the duty of the court to proceed in this way, when called upon; because the suitor has the election of the proceeding, by calling on the court; or by indictment for the libel.
But under an attachment, you call upon a party to say whether he is not the author of the writing. That is against a principle of the common law; no one is bound to accuse himself; and by a clause of the constitution, no one is compellable to give evidence against himself. But the parts of the law must be taken together: exceptions subject to the general rules. The proceeding by attachment, and compelling to answer on interrogatories put, existed under the common law, whose maxim it was, no one is bound to accuse himself. It is a special case out of the general principle: and there is good reason for the exception. But whether reason, or not, the exception is as old as the principle. For this proceeding, and such interrogation is of immemorial usage; it is as old as the constitution of the courts themselves. If our constitution had meant to do away this exception, it would have voted it in express terms; more especially as it had been exercised by the courts before the formation of the constitution; and by implication recognized by the legislature itself, in the case of Oswald, taken up by the house. But the constitution gives the courts, the powers usually exercised. This power was usually exercised, and therefore it is given.
But there is reason for it, independent of law, and constitution. The administration of justice requires it. How can I fix a libel on the author? The presumption is, that my adversary in the cause depending, is the author of the writing that affects the merits of it. On this presumption the law gives me a right to call upon him. Who else can be supposed to interfere by my adversary; or some one with his privity? The necessity of the case justifies this exception to the general rule. He may go on behind the scene and prejudice the public mind against me and my cause, and leave me to my redress afterwards. The law will not allow this. If it is not a principle of the law, it ought to be a principle. But it is a principle as old as our Saxon ancestry, from whom the trial by jury is derived. It is coeval with the trial by jury, and necessary to its preservation. It is a safeguard of the trial in which the bulk of the people are especially interested. Before they give it up let them think. Leave it to the suitors in court, and at least one side will always object to it; probably both. All that wish a fair and unprejudiced decision will object to it. They will not be satisfied with being turned round to an indictment, and the slow process of a jury trial to establish the fact of the libel. But they will wish more, that the party interested, shall be purged on his oath, as to his agency in the publication. In this case, they have the conscience of the party to establish the guilt. And the looking forward to him, sill lessen his hope of escaping detection. It is a great privilege to an honest man. It is the rogue only that needs fear it.
But though the bare circumstance of being a party to the suit depending may found such presumption of being the author of the writing, as will justify the calling on the party to answer, by a rule to shew cause why an attachment should not issue, yet it is never done, and perhaps ought not to be done, without an affidavit of some fact to lay a ground for the motion. This in the case of a third person, is absolutely necessary; for no presumption of the nature already stated, can exist.
But the negative of the party to the suit depending, or of a third person, on oath, dissolves the rule, and there is an end of the summary interposition. This is a privilege peculiar to this special proceeding; and not possessed in the case of an indictment by a grand jury. It softens the extraordinary remedy, by suffering a man to be a witness for himself; and what is more; taking what he says, to be the truth, and so far as respects the attachment incontrovertable.
But if this power, though founded on law, and the constitution, should be deemed contrary to the spirit of liberty, or good policy, a clause of a few lines, can put an end to it:[viz.] That in the case of contempts, by interference in a cause depending, the proceeding shall be by indictment, in the first instance; and in no other way. It will relieve the court from a burden, which they conceive a duty; and experience will determine whether the alteration of the common law in this particular be an evil or a good.
But of what use can a rogues oath be? He is not supposed to have a conscience. But he can look to an indictment for perjury. But suppose he did not know, or at least think there was a cause depending; and that he did not mean a contempt. It is not what he thought, or what he meant; but was there a case depending, and what did he do?
But at this rate you abridge the liberty of speech, and of writing: you make it dangerous to canvass a general principle of law; for some suit may be depending on which it may turn. The law goes no such length. I am at liberty to canvass a general principle. It is a consideration of the particular case from which I am excluded; or the application of the facts to the law. The legality of general warrants was abundantly canvassed, at the time Wilkes was the subject of one of them; and no exception taken to the freedom of the press in this particular. The constitutionality of the Sedition Law of the United States, was brought into view pending indictments under it; and no exception. I am canvassing a general principle at present; and there are impeachments depending where it may be brought into view. That is nothing; for it is the facts of the case that will be ultimately considered.
The courts may have this power, and yet may exercise it with partiality, oppression, and tyranny. This will render the exercise of any power impeachable. For this the accused must put themselves upon the country; or if clearly and palpably, a court have no such power at all, and yet exercise it, it is a misdemeanour. For error in judgment where there is a right to judge, is not impeachable; but the exercise of a power unknown to the law, even though unaccompanied with express malice, is impeachable, and will subject to a reprimand, &c. according to the circumstances. The rights of the citizens are thus secured; and far be it from me to abridge them, even in idea, by any reasoning I may offer.
But if the law guards against a party endeavouring to preoccupy the public mind, on the merits of a cause, that may come to trial; humanity and good policy will forbid, the raising a clamor against men in office whose conduct may be called in question, and depending before the highest judiciary tribunal. I therefore object to the toast on the 4th of July last; chace the judges from the bench. I am sorry that it came from the state of Pennsylvania.
This is a pun upon the word Chace; refering to Samuel Chace of Maryland: a judge of the supreme court of the United States, and against whom articles of impeachment are prepared by the house of representatives.
In the month of May 1774; having come up the bay of Chesapeake, I landed at Annapolis. There, for the first time I saw Samuel Chace, with papers in his hand, haranguing the citizens. It was on the Boston port bill.
The cause of Massachusetts became popular because it was the cause of America. But it required sense to explain, and spirit to enforce resistence. It was not the mild temper of Poca; nor the cool reasoning of a Johnston. It was the ardent mind; the impressive vigour, the undaunted resolution of a Chace that led a state into war. Shall even the excess of qualities that profited, not receive quarter, and be gently scanned, when great objects are accomplished? his error has been in the heat of times, if error there has been, and shall the heat of other times, as posterity may think, take its turn. For the sake of the democracy, I am not clear that the prosecution, has been necessary or judicious. Be that as it may, this I know, there is a dormant body of republicans who have seen the revolution, and do not rejoice in it. Those who have not had a political, or perhaps a personal existence at the period may feel it less. It is sufficient to have said this; I leave the result to the constituted authorities.
But be the demerit of the judges conduct what it may, I think the allusion to his case, in the public libation, Chace the judges from the bench, was unjustifiable. Great delicacy becomes brave men, and they will not insult the accused, or triumph over the unfortunate.
In the parable of supposed offence to the St. Tammany, or, Cincinnati Societies, I will acknowledge that I have in view my own case with the legislature; my only complaint against whom is that I had not a citation to explain. I think that when I come to explain the circumstances of my situation, and the motives of my conduct, which I mean to do at large in the second volume of the second part, they will themselves be sensible that through an over-jealousy of honour, they took fire too hastily. It is a maxim of Rochefoucault that when a wise man does not know what to do, let him do nothing. This maxim I thought of at the time, and the truth is, I was greatly at a loss what to do; but I did, what I now think, notwithstanding all that has happened, was necessary, and unavoidable. But what is more, I am confident that when the situation is explained, there will be found few who can think otherwise.
It may be thought that I allude to my own case, and that of the impeached judges, in several places of this book. It is possible I may have been led to this train of thinking, and of course writing, a good deal from what has happened, though I mean no reflection or invective. But I cannot say that I have any direct reference, where it is no expressed in terms.
But in no place have I a reference to the language or conduct of the delegated bodies; but to popular prejudice, and declamation at home. I have been led to write on this subject; because I was thinking on it. John Carmichael, a Clergyman of Brandywine; some years ago; took his text in these words, It is not good for man to be alone. For, said he, having been lately married, as you all know, I can preach best on what I think most about.
But while I am thinking about giving offence, which I do not intend,
5. What follows in this concluding section was moved from the body of Chapter 17 to the conclusion section.
6. What follows here is the original "Conclusion of the Volume" from the serial edition:
These concluding pages I had written, and had printed off, to this point of the game, if I may so express myself, this 19th of Nov. 1804; and had intended to publish; but it struck me that it might give offence to the legislature, and it might be as well to let it rest until next spring after they had risen; and if any thing should give umbrage; though I cannot possibly see what, they might have a summer to think of it before they met again, and so could do nothing hastily. I asked the printer boys what they thought of it. For I could communicate to no one else lest it should get out. In the language of John Bunyan; in the preface in verse to his Pilgrims Progress, which I remember something of, having read it 30 years ago.
It is said of Moliere, that he recited his comedies to an old woman in his house; and when she smiled the audience never failed to smile also. This is an appeal to simple nature. On that ground, I took the opinion of an old man about the shop, that wore spectacles. It was his opinion that it might be thought I was making a dash at somebody. He thought the lawyers, and the Irish might take offence; and perhaps the legislature themselves for any thing he knew. This last was the most delicate consideration, and at the present time, I would not think it advisable to add the bar and the Irish to the weight against me. For that reason, nonum prematur, say, in mensem. Six or nine months hence, it may be safer to let it come forth.
I had the curiosity however to ask the man what possible offence it could give the Irish? He thought Clonmels song bore hard upon them. It was in vain that I explained to him that no reflection was intended on the nation, or the Irish character; and indeed little else than an incident to enliven the history. He still thought, as he expressed it, that it was a double entendre, and something might be taken out of it. It is this,
Or, that good theologists can make a text yield more than was in it, independent of cultivation.
This book then rests for a period; lest the publication should do myself harm. It will depend upon circumstances whether I do not burn it altogether; or put it off at the book fair, with some New-England man, who will give it a circulation in the Northern States; and keep it away from Pennsylvania.
How a man feels himself cramped in such a fear, and trembling of mind! I am positively more afraid at this moment of the mistake of the honest, than I was of the resentment of the knave at a former period. During the reign of terror, my strictures were very free; but I begin almost to call this a reign of fear, which is the same thing with the former reign.
A word to the critic seems necessary in some part of a book. It happens to come here at the end of it. It is now ten years since I last put pen to paper in any thing above dissertation in the gazette or a newspaper paragraph. I am well aware that there will be found a great falling off since my last about that time. I am not conscious to myself that my vigour of mind has abated in matters of judgment; for, as would seem from the story of Gill Blass, I shall not be the first to discover that. But I must acknowledge that I am not sensible of the same powers of imagination in that respect,
----Non sum qualis eram.
No wonder; for the snow of age has come upon my head; and winter has taken possession of my brow. My fancy is as cold as it was once warm. My inclination leads me to metaphysics, chiefly. But that subject is exhausted; or, so many have written well, that it is discouraging to came after them.
It is on account of the decline of fancy, that I have confined my self in this volume, to mere narrative, which is the province of old age. Here, and there, I have interspersed a maxim, or an observation; but these are the saws of age, and have not that brilliancy of thought, or terseness of expression, which quick and lively wit gives. There is some attempt at humour; but seldom have I been able to reach it. A salutary bon mot, or jeu desprit, may sometimes be found. Nevertheless it may serve to let people know that I am alive.
Were it not that the Captain had enjoined on me to continue his story when he delivered his papers into my hand, I believe I should not have taken up the pen again. But I must go through with it, and complete the history; which I hope to comprize in another volume.
It will be observable that Latin quotations abound more than a reader of English may be disposed to relish. But the fact is, that I have forgot almost all the reading of my middle age; and recollect chiefly my academic studies. Hence it is that the classics are more in my head, than Shakespeare; or Milton.
of Volume First"