1788.
by the court:–The Legiflature before the Revolution prefcribed no rules for the Supreme Court ; but it is certainly vefted with the powers of the King's Bench and Common Pleas in England ; and the practice has been, in general, governed by the fame law. Hence, we find, that it was formerly thought neceffary to proceed by Teʃtatum in Pennʃylvana ; and although a contrary practice has lately obtained, it is without the opinion or fanction of the court.
We think, therefore, that this execution muft be quafhed ; and in every future cafe of the fame kind, let a Fi.ƒa. be filed in the Supreme Court, with a return of nulla bona; and then a term muft intervene before the Teʃtatum iffues, in order to fupport the fiction.
brought to prove, that the judges could not be impeached (force furely that is not a trial by jury) as that they have not the power of iffuing attachments. All cafes proper for a trial by jury, the bill of rights clearly meant to refer to that tribunal ; but can any thing more explicitly demonftrate, that the framers of the conftitution were aware of fome cafes, which required another mode of proceeding, than their declaration, that “Trials fhall be by jury as heretoƒore?” – Who will affert that contempts were ever fo tried? who will hazard an opinion, that it is poffible fo to try them?
But does not the conftitution of Pennʃylvania further diftinguifh between the law oƒ the land, and the judgment oƒ our peers: furnifhing a ftriking alternative, by the disjunctive article or? This very fentiment ; expreffed in the fame words, appears in the Magana Charta of England; and yet Blackʃtone unequivocally informs us, that the procefs of attachment was conʃirmed by that celebrated inftrument. In the 14 adop oƒ Maga Charta, it is alfo faid, that “no amercement fhall be affeffed, but “ by lawful men of the vicinage;” and who, that is at all acquainted with the law, or with the reafon of the law, can think it poffible, in that cafe, to purfue the generality of the expreffion?
From thefe analogous principles, therefore, and the conftruction of ages, we may fafely argued on the prefent occafion. But the wild and hypothetical interpretations, which fome men have offered, would inevitably involved us in a labyrinth of error, and eventually endanger that liberty, which they profefs, and every honeft citizen muft with, to preferve.
As to the manner of proceeding upon the attachment, the court on this occafion have followed the precedent in Moʃley's Rep. 250. where it is liberally faid, that the defendant fhall not be permitted to be examined to bring himfelf into contempt ; but upon proof of the contempt, he fhall be allowed to purge himfelf upon his oath.
pon the whofe, Mr. Lewis conclude, that the only grounds of impeachment, were bribery, corruption, grofs partiality, or willful and arbitrary oppreffion ; and that as none of thefe had been proved, Mr. Oʃwald's memorial ought to be difmiffed. He faid, indeed, that it would be preferable to return to the ftate of nature, than to live in a ftate of fociety upon the terms which that memorial prefented ; –terms, which left the weak and the innocent a prey to the powerful and the wicked ; and which gave to falfehood and licentioufnefs, all that was due to freedom and to truth.
When Mr. Lewis's argument was elected, Mr. Findley, a member from Weʃtmoreland, rofe, and delivered his fentiments, with great ability and precifion. He acknowledged, that he had received great information and pleafure, from the learned and eloquent fpeech of the member who proceeded him; but he thought it was unneceffary, upon the prefent occafion, to explore the dark and diftant periods of juridical hiftory. The rights and immunities which formed the great object of the revolution, he contended, were capable of an eafy and unequivocal definition, they were nor of fuch remote antiquity as to be loft even to the feelings of the people ; and the conftitution of the ftate was the only proper criterion, by which
they
