1788.
ccording to the practice upon attachments, he will be compelled to anʃwer interrogatories; in doing which, he muft either be guilty of perjury, or give evidence againʃt himʃelʃ. The proceeding by attachment is, indeed, a novelty in thus country, except for the purpofe of enforcing the attendance of witneffes. Thofe contempts which are committed in the face of a court ftand upon a very different ground. Even the court of Admiralty (which is not a court of record) poffeffes a power to punifh them; and the reafon arifes from the neceffity that every jurifdiction fhould be competent to protect itfelf from immediate violence and interruption. But contempts which are alledged to have been committed out of doors, are not within the reafon; they come properly within the clafe of criminal oƒƒences; and, as fuch, by the 9th ʃect. of the bill of rights, they can only be tired by a jury.
M‘KEAN, C.J. Do you then apprehend that the 9th ʃect. of the bill of rights introduced fomething new on the fubject of trials? I have always underftood it to be the law, independent of this fection, that the twelve jurors muft be unanimous in their verdict, and yet this fection makes this exprefs provifion.
Sergeant faid, that he had difcuffed the fubject as well as the little opportunity afforded him would admit. He preffed the court to give further time for the argument, or, at once, to direct a trial. This he contended was, at leaft, difcreationary ; and, confidering the Defendant's proteftation of innocence [♦], his readinefs to give ample fecurity for his future appearance, the magnitude of the queftion as arifing from the conftitution, and its immenfe confequences to the public, he thought a delay, that was cifential to deliberation and juftice, ought not to be refufed.
Heatly and Lewis, in fupport of the motion, contended, that under the circumftances of the cafe, Oʃwald's publication, whether true or falfe, amounted to a contempt of the court, as it refpected a caufe then depending in judgement, and reflected upon one of the Judges in his official capacity ; that the argument of the adverfe counfel went fo far as to affert , that there could be no fuch offence as a contempt even in England, fince the very words inferted in the conftitution of Pennʃylvania, were ufed in the Magna Charta of that kingdom ; that, in truth, neither the bill of rights nor the conftitution extended to the cafe of contempts, for they mean only to fecure to every citizen the right of expreffing his fentiments with a manly freedom, but not to authorize wanton attacks upon private reputation, or to deprive the court of a power effential to its own exiftence, and to the due adminiftration of juftice; that the court were as competent to judge of the fact and the law, upon the infpection of the publication in queftion, as the Chancellor was in the authority cited from Atkins; and that although the profecutor could, perhaps, proceed either by indictment or information, yet that the abufes of the Star Chamber had rendered the procefs by information
[♦]Mr.Gʃwold repeatedly declared that he meant no contempt of the court in what he had publifhed
