1788.
By the Court:—The Legislature before the Revolution prescribed no rules for the Supreme Court; but it is certainly vested with the powers of the King's Bench and Common Pleas in England; and the practice has been, in general, governed by the same law. Hence, we find, that it was formerly thought necessary to proceed by Testatum in Pennsylvania; and although a contrary practice has lately obtained, it is without the opinion or sanction of the court.
We think, therefore, that this execution must be quashed; and in every future case of the same kind, let a Fi. fa. be filed in the Supreme Court, with a return of nulla bona; and then a term must intervene before the Testatum issues, in order to support the fiction.
The Execution quashed.
Respublica
brought to prove, that the judges could not be impeached (since surely that is not a trial by jury) as that they have not the power of issuing attachments. All cases proper for a trial by jury, the bill of rights clearly meant to refer to that tribunal; but can any thing more explicitly demonstrate, that the framers of the constitution were aware of some cases, which required another mode of proceeding, than their declaration, that "Trials shall be by jury as heretofore?"—Who will assert that contempts were ever so tried? who will hazard an opinion, that it is possible so to try them?
But does not the constitution of Pennsylvania further distinguish between the law of the land, and the judgment of our peers: furnishing a striking alternative, by the disjunctive article or? This very sentiment, expressed in the same words, appears in the Magna Charta of England; and yet Blackstone unequivocally informs us, that the process of attachment was confirmed by that celebrated instrument. In the 14 chap. of Magna Charta, it is also said, that "no amercement shall be assessed, but by lawful men of the vicinage;" and who, that is at all acquainted with the law, or with the reason of the law, can think it possible, in that case, to pursue the generality of the expression?
From these analogous principles, therefore, and the construction of ages, we may safely argue on the present occasion. But the wild and hypothetical interpretations, which some men have offered, would inevitably involve us in a labyrinth of error, and eventually endanger that liberty, which they profess, and every honest citizen must with, to preserve.
As to the manner of proceeding upon the attachment, the court on this occasion have followed the precedent in Mosley's Rep. 250. where it is liberally said, that the defendant shall not be permitted to be examined to bring himself into contempt; but upon proof of the contempt, he shall be allowed to purge himself upon his oath.
Upon the whole, Mr. Lewis concluded, that the only grounds of impeachment, were bribery, corruption, gross partiality, or willful and arbitrary oppression; and that as none of these had been proved, Mr. Oswald's memorial ought to be dismissed. He said, indeed, that it would be preferable to return to the state of nature, than to live in a state of society upon the terms which that memorial presented;—terms, which left the weak and the innocent a prey to the powerful and the wicked; and which gave to falsehood and licentiousness, all that was due to freedom and to truth.
When Mr. Lewis's argument was elected, Mr. Findley, a member from Westmoreland, rose, and delivered his sentiments, with great ability and precision. He acknowledged, that he had received great information and pleasure, from the learned and eloquent speech of the member who proceeded him; but he thought it was unnecessary, upon the present occasion, to explore the dark and distant periods of juridical history. The rights and immunities which formed the great object of the revolution, he contended, were capable of an easy and unequivocal definition, they were nor of such remote antiquity as to be loft even to the feelings of the people; and the constitution of the state was the only proper criterion, by which
they
