1788.
ways been the fame. But, he contended, that unlefs the act of Affembly had exprefsly extended the power to the county courts, they could not have proceeded by Teʃtatum, to execute out of their immediate jurifdiction ; which is the true reafon why the Legiflature takes notice of the writ in one cafe, and not in the order.
Upon a queftion from the Court, Mr. Burd, the Prothonotary, faid that previoufly to the Revolution, the proceeding, in fuch cafes, had always been by Teʃtatum; though fince that period a different practice had been introduced by fome of the attornies, contrary to his opinion.
By
injury of that nature? It is not vefted with any criminal jurifdiction ; it cannot impanel a grand Jury, nor try an indictment; the only remedy therefore which the cafe can admit, is by an attachment. He applied the fame reafoning to the Supreme Court; and with refpect to the Orphan's Courts, the Court of Admiralty, and the Courts of the Regiʃters oƒ Wills, &c. he obferved, that their proceedings, according to the civil law, were totally independent of juries ; and that confequently if they were deprived of the procefs of attachment, it was in vain for them to decide and to decree, for they would then be without any means to enforce obedience to their decifiions and decrees. Nay, he added, that, without this power, the legiflature itfelf would he expofed to wanton infult and interruption ; and that letters, fuch as he had received, meancing his exiftence for his conduct on the prefent occafion, might be written and avowed with abfolute impunity. He then enumerated many inftances in which grofs injuftice would take place, but for the intervention of this fummary proceeding. Where a fheriff refufes, or neglects, to return a writ ; or to pay money which he has received upon an execution; where an inferior court refufes to tranfmit a record ; a witnefs, or juryman, to attend or to be fworn ; and where a defendant in ejectment refufes to pay cofts, after a non-ʃuit, for want of a confeffion of leafe entry and oufter;– in all thefe and many other cafes he demonftrated, hat the great, efficient remedy, was by an attachment to be iffued againft the delinquent.
In tracing the antiquity of the procefs by attachment, he remarked, that, it was admitted to be a part of the common law by the moft authoritative writers, and that the common law a compund of the Daniʃh, Soxan, Norman, Pict and Civil law. 1 Black Com. 63. As, therefore, the attachment is derived from the civil law, and the civil law was introduced into England by the Romans, early in the firft century, he thought it impracticable at this day to afcertain its fource; but infifted that enough appeared to prove it to be of immemorial ufage, and a part of the law of the land.
He then adverted to the leading objection made by the advocates for Mr. Oʃwald, that, however the procefs of attachment might be legal in England; it was not fo in Pennʃylvania. From a decifion in the time of Judge Kinʃey, he fhewed, that, before the revolution, an attachment had iffued for a contempt, and that the party had, in fact, anfwered certain interrogatories filed by order of the court ; fo that it only remained to enquire, whether any alteration had been introduced by the conftituton of the ftate. In the 24th ʃect of that inftrument, it is declared, that, “the Supreme Court, and the feveral courts of Common Pleas of this Commonwealth, fhall, beʃides the powers uʃually exerciʃed by fuch courts, have the powers of a court of the chancery fo far as relates, &c.” Now, as it appears by the cafe which occurred while Mr. Kinʃey was chief juftice, that the power of iffuing attachments was ufually exercifed by the Supreme Court, fo far from altering the law, this is a direct confirmation of the jurifdiction of the court ; for the greater naturally includes the lefs; and if the court is vefted with all its former powers, by what poffible conftruction can we deprive it of this ? But it is anfwered, that a fection in the bill oƒ rights provides, that “ In all profecutions for criminal offences the trial fhall be by jury, &c.” True, but the whole fyftem muft be taken together ; or, if we examine a particular part, it muft be with a recollection of the immediate fubject to which that part relates. For, otherwife, this very fection might as properly be
brought
