1788.
determine the difpute between them ; who, for that purpofe, reprefents himfelf as a perfecuted man, and afferts that his judges are influenced by paffion and prejudice,–willfully feeks to corrupt the fource, and to difhonor the adminiftration of juftice.
Such is evidently the object and tendency of Mr. Oʃwald's addrefs to the public. Nor can that artifice prevail, which infinuates that the decifion of this court will be the effect of perfonal refentment ; for, if it could, every man might evade the punifhment due to his offences, by firft pouring a torrent of abufe upon his judges, and then afferting that they act from paffion, becaufe their treatment has been fuch as would naturally excite refentment in the human difpofition. But it muft be remembered, that judges difcharge their functions under the folemn obligations of an oath : and, if their virtue entitles them to their ftation, they can neither be corrupted by favour to fwerve from, nor influenced by fear to defers, their duty. The judge, indeed, who courts popularity by unworthy means, while he weakens his pretenfions, diminifhes, likewife, the chance of attaining his object ; and he will eventually find that he had facrificed the fubftantial bleffing of a good confcience, in an idle and vifionary purfuit.
Upon the whole, we confider the publication in queftion, as having the tendency which has been afcribed to it, that of prejudicing the public (a part of whom muft hereafter be fummoned as jurors) with refpect to the merits of a caufe depending in this court, and of corrupting the adminiftration of juftice: We are, therefore, unanimoufly of opinion, on the firʃt point, that it amounts to a contempt.
It only remains then to confider, whether the offence is punifhable in the way that the prefent motion has propofed.
It is certain that the proceeding by attachment is an old as the law itfelf, and no act of the legiflature or fection of the conftitution, has interpofed to alter or fufpend it. Befides the fections which have been already read from the conftitution, there is another fection which declares, that “ trials by jury fhall be as heretoƒore; and furely it cannot be contended, that the offence, with which the defendant is now charged, was heretoƒore tried by that tribunal. It a man commits an outrage in the face of the court, what is there to be tried?– what further evidence can be neceffary to convict him of the offence, than the actual view of the Judges? A man has been compelled to enter into fecurity for his good behaviour, for giving the lie in the prefence of the Judges in Weʃtminiʃter-Hall.
On the prefent occafion, is not the proof, from the infpection of the paper, as full and fatisfactory as any that can be offered? And whether the publication amounts to a contempt, or not, is a point of law, which, after all, it is the province of the judges, and not of the jury, to determine. Being a contempt, if it is not punifhed immediately, how fhall the mifchief be corrected ? Leave it to be cuftomary feems of a trial by jury, and the caufe may be continued being in fufpenfe, while the party perferves in his mifconduct. The
injurious
