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nor branches, nor flowers; but such as I am, I will hope and wait." He bent down his shoots and wept. Nor had he long to wait, for behold the divinity of earth, Man, drew nigh. He saw the feeble, helpless plant, trailing its honours along the soil. In pity, he lifted up the recumbent shoots, and twined the feeble plant about his own bower; and now the winds played with its leaves and tendrils, and the warmth of the sun began to empurple its hard green grapes, and to prepare within them a sweet and delicious juice, the repast and the drink of gods and of men. Decked with its rich clusters,

the Vine now leaned toward its master, who tasted its refreshing fruit and juicy beverage, and named the Vine his friend, his grateful favourite! Then the proud trees envied the Vine; for behold they stood barren and neglected; but he rejoiced in his humble growth and his persevering patience; and still his juice enliveneth the heart of the sad, lifts the sinking courage, and inspires to perseverance and exertion. Despair not, ye forsaken; hear, wait, and strive. From the insignificant reed flows the sweetest of juices; from the bending Vine springs the most delightful drink of the earth.

POETRY.

ORIGINAL.

ELEGY ON PERCEIVING A RENT IN MY OLD SHOE.

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THE BOSTON REVIEW.

FOR

JULY, 1808.

Librum tuum legi & quam diligentissime potui annotavi, quæ commutanda, que eximenda, arbitrarer. Nam ego dicere verum assuevi. Neque ulli paticntius reprehenduntur, quam qui maxime laudari merentur. PLIN.

ART. 22.

An Accurate Report of the Argument on a motion of Attachment against Baptis Irvine, Editor of the Whig, for a Contempt against the Court of Oyer and Terminer for Baltimore County. By A. C. Hanson, one of the Counsel for the State. Baltimore: printed and published by P. K. Wagner. 1808. 8vo. pp. 116.

THIS pamphlet has attracted our attention, rather from the importance and novelty, in this country, of the subject discussed in it, than from any extraordinary ability displayed in the discussion. In these times of democratick laxity, when a willing ness to strip the judicial tribunals of their accustomed dignity and authority is so prevalent, it will not be useless to invite the publick notice to a trial, which in a democratick state, and before a democratick tourt, with the sanction of a democratick governour, established a principle, obvious and unquestioned, it is true, in all regular and well set

tled

governments, but obnoxious to fanaticks in politicks, who believe that liberty can exist without those

wholesome restraints, which alone

give it life and durability.

trial by jury, have long been the The liberty of the press and the idols of faction, before which all other rights and privileges must bow down and humble themselves in the

dust.

Is a man's reputation devaded by some newspaper paragraph, stroyed, his peace and happiness in

he must submit in silence; because, to punish the offender would be to interrupt the freedom of the press Is a court of justice braved to its teeth, its officers traduced, its proceedings misrepresented, its regular and impartial administration intercepted; it must lament the misfortune without a struggle to prevent it; for to seize and punish the perpetrator, while punishment can answer any purpose, will be to violate the trial by jury; and to wait the formal process and issue of such a trial would be to close the doors after the treasure is stolen. Who will deny that a cunning and eloquent statement of facts, published in a popular paper during the trial of a cause, is calculated to interest the minds of a jury, and predispose them to adopt an opinion, which it may

be difficult for the strongest evidence to efface? Who will deny that to charge the judge with partiality, .he opposite party with malice, the witnesses with perjury, will probably induce one or more of a jury to shut their ears against truth, and to be eager to oppose an influence, which they may be thus led to believe is unjust? What then is to be done, unless the court is vested with power instantly to vindicate its purity, and protect the rights of suitors? Surely our constitution, professedly made to guard the rights of property and reputation, because it establishes the freedom of the press and the trial by jury, cannot have left unprotected the greatest blessings it was intended to secure.

And yet the perusal of the pamphlet we are now reviewing will shew, that an attempt of the court of Oyer and Terminer in Maryland to preserve itself from disgrace was resisted with a zeal and pertinacity, which leave little doubt of the sincerity of the gentlemen, who it seems volunteered their services in what they call the cause of liberty and the rights of man.

The facts, upon which the prosecution was founded, were as follows: one of the journeymen of Baptis Irvine, who was the editor of a democratick paper in Baltimore, was indicted for an assault and battery, and upon trial was convicted. Several other persons were charged in the same indictment with the same offence, but, not having been arrested, their trial had not come on. After the verdict, and before sentence, a very scurrilous libel on the jurors and witnesses appeared in the defendant's paper; and on affidavits made by ten of the jurors and two of the witnesses that they believed themselves to be abused by the publication, a motion was made

by the attorney for the government for a rule to shew cause, why an attachment should not issue against the defendant for a contempt of the court. The rule was granted, and a time assigned for hearing counsel on the question, "Why an attachment should not issue against Baptis Irvine for a contempt of court, in publishing, pending a prosecution therein," the obnoxious paragraph. Irvine was not without friends upon the question: several gentlemen of the bar, professing themselves republicans, volunteered their services, either sincerely believing that stretch of power dangerous to pub. lick liberty was assumed by the court; or, what is more probable, conceiving that an opportunity was offered to shew their love for the people's rights, and to signalize themselves as champions of the fashionable politicks of the day. On the day appointed for the hearing, which was sufficiently distant for preparation, the prosecution was opened by a Mr. Meredith, in a neat style of declamation, in which he stated the necessity of punishing any attempt to influence a judicial tribunal or any of its officers, or in any way to affect a cause out of court, in its progress towards decision. He stated in strong language the mischiefs, which would flow from permitting remarks to be made in newspapers with impunity on subjects pending before the court; and reprobated that spirit of democracy, which would withhold all respect from the constituted authorities of the country, and finally, if not checked, would overturn all the institutions established for the security of liberty. He characterizes the defendant as "a foreigner, a political missionary from the great High Priest of a philosophy that is ignoble, savage, devilish; of a democra

cy, shameless, irrational, ferocious.” He says, "the paper managed by the defendant is unexampled in venom and malignity by any of the columns of its great prototype, the Aurora." In another paragraph he says, "it is a truth within the knowledge of all his hearers, that this city (Baltimore) has been for some time disgraced by a newspaper, assuming the title of the Whig, marked by a contempt of order and violence of outrage, by a rage of defamation, and audacity of falsehood, seldom equalled, but never surpassed by the most profligate pages of the most licentious paper, that society or government ever tolerated." After indulging himself in some handsome flights respecting the true liberty of the press, and the necessity of preserving the dignity of the courts of law, in the course of which there are many severe, and perhaps unwarrantable attacks upon the defendant's general conduct and character, which was not then a subject of investigation, Mr. Meredith produced his authorities to support his positions, which were, 1. That the publication complained of was a contempt of court, and, 2. That as such, by the common law, it was punishable by attachment: and also, that by several decisions in other states, and in the court of the United States, the principle had been fully recognized and establish

ed.

Mr. Meredith was followed by Mr. Donaldson for the defendant, who controverts his position with ingenuity, and is no mean competitor in the field of declamation. Zealous in the cause of liberty and the sacred rights of the press, he seems to think all restraint of either incompatible with the dignity of free and independent man. The basis of his argument is the several arti

cles in the Constitution and Bill of Rights of Maryland, providing for the trial by jury, freedom of discussion, personal liberty, &c. which are found with little variation in the constitutional codes of all the states, which have a written constitution, and of which, indeed, most are taken from the Magna Charta of that land of true civil liberty, Great Britain.

Mr. Donaldson's argument is, that by the constitution, in all criminal prosecutions, the accused has a right to trial by jury; that a process for contempt is a criminal prosecution, its consequence being fine and imprisonment; that therefore the court could not punish in the summary way of attachment, but that there must be indictment and trial before any punishment could be inflicted. The force of Mr. Donaldson's argument is weakened by his admission, that there are contempts, which the court may punish by attachment, such as all disobediences of officers to their lawful orders, and disturbances in the presence of the court. With this admission, it would seem the only question must be, whether the facts complained of amounted to a contempt, for Mr. Donaldson did not pretend to shew by any authority the line of distinction between con tempts, on one side of which they could, and on the other side they could not punish, without the intervention of juries.

Next follows Mr. Hanson for the prosecution, who compliments the court, and severely lashes the defendant and his paper; he says "it is the most infamous paper ever published in the state of Maryland. Even the foul and filthy pages of the Aurora, the pimping falsehoods of the Intelligencer, are not half so reprehensible as the paragraph com

plained of. To put them in competition, steeped in gail and venom as they are, would be to compare the chastity of a vestal with the most infamous and abandoned prostitute, that ever waded through the filth of pollution." There is some danger, that to those, who have read the Aurora and the Intelligencer, this sentence may appear somewhat hyperbolical.

He further says, the defendant is "an emigrant from that distracted and politically miserable state of Pennsylvania. Trained up under William Duane, of famous newspaper memory, not even Moloch himself was better qualified for his mighty revolutionary purposes." Mr. Hanson appears to have been upon higher stilts than any of his brethren, and in the course of a tolerable argument, indulges himself in many ebullitions of passion and zeal. We are not a little surprised, that in an argument addressed to the court, upon a grave law question, so much latitude of remark should have been permitted, as most of the counsel were indulged in.

Next follows Mr. Glenn, who talks solemnly about the trial by jury, liberty of the press, and the rights of man. His argument is short, and not without merit. He is replied to by Mr. Livermore, who, without declamation, in a speech which shews considerable research, and a perfect understanding of his subject, has treated the question in a lawyer-like manner, and very intelligibly and satisfactorily maintained the prosecution. Mr. Livermore's speech comprehends all which was said upon the subject by all the advocates, and ably refutes the objections, which had been raisthe defendant's counsel. From ment of ideas, and the

rish discernible in

Mr. Livermore's argument, we conclude he has had more professional experience than the gentlemen who preceded him, and we are confirmed in this opinion from the rank he held in the argument, he being the last but one out of four, who spoke in favour of the prosecution. But if we should be mistaken in this conjecture, and Mr. Livermore should turn out to be as young a man as his colleagues, we think we venture to say, he had advantageously improved his noviciate, and that he is less eager to display his powers of oratory, than to do justice te the cause which he espoused.

may

Mr. Kell concludes in the defence, and Mr. Jennings for the prosecution; and it may well be imagined, considering the number who preceded them, and allowing them tolerable ability, that there was little left for them to do. The only thing remarkable about Mr. Kell is, that he was candid enough to admit a principle, from which his colleagues thought it necessary explicitly to dissent.

The court decided in favour of the attachment, and the Chief Justice in a neat, concise manner, delivered their opinion, with the reasons on which it was founded. They sentenced the defendant to thirty days imprisonment.

The counsel for Irvine were not disposed to abandon him, while any hope of defeating the prosecution remained. Confiding in the democratick propensities of gov. Wright, they addressed a letter to him, urging the interposition of his power of pardon. But they were mistaken in the man. Whatever may have been his theoretick notions of liberty and the rights of man, he seems to have been sensible, that practical liberty is perfectly consistent with the wholesome restraints of the law;

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