1788.
RESPUBLICA verʃus TEISCHER.
T
HE Defendant had been convicted in the county of Berks upon an indictment ƒor maliciouʃly, wilƒully, an wickedly killing a Herʃe: and upon a motion in arreft of Judgment, it came on to be argued, whether the offence, fo laid, was indictable?
Sergeant, in fupport of the motion, contended that this was an injury of a private nature, amounting to nothing more than a Trefpafs; and that to bring the cafe within the general rule of indict-
ments
they could be judged and afcertained. He did not, therefore, Intend to purfue Mr. Lewis, in the tract of legal difquifition ; but, appealing confidently to the inftrument itfelf, he deemed it to be his duty to pronounce, that the decifion of the fupreme court was a deviation from the fpirit and the letter of the frame of government. In doing this, he obferved, that he did not mean to affert, that any ground had been fhewn for the impeachment of the judges. But, on the contrary, he agreed with Mr. Lewis, that bribery, corruption, or a willful and arbitrary inftraction of that law, were the only true caufes for inftituting a profecution of that nature; and his candor readily induced him to believe, that as none of thefe had been proved, neither did any them actually exift on this occafion. But, he faid, it was due to the deareft interefts of pofterity, that the legiflature fhould not with that circumfpection, fhould decide with that wifdom, which, leading on the one hand, to an acquittal of the judges, did not tend, on the other hand, to eftablifh a baneful and deftructive precedent. It was in this point of view, that the prefent proceeding prefented itfelf to his mind, as a matter of the greateft magnitude and importance ; and he faid it were better far that Mr. Oʃwalf had fuffered in filience and obfcurity, than that the attention of the legiflature fhould be awakened, only to give additional ftrength and authority to the miftaken judgment of the court.
That it was a miftaken judgment, every man, he alledged, who poffeffed a competent fhare of common fenfe, and underftood the rules of grammar, was able to determine on a bare perufal of the bill of rights and conftitution. With thefe aids, he defied all the fophiftry of the fchools, and the jargon of the law, to pervert or corrupt the explicit language of the text ; and therefore he regretted, that in liftening to the ingenuity of Mr. Lewis's paraphrafe, his admiration was not neceffarily followed by conviction.
He then difcuffed the 9 ʃect. of the bill or rights, which provides, “ that in all
“ profecutions for criminal offences a man hath a right to be heard by himfelf and “ his council, to demand the caufe and nature of his accufation, to be confronted
“ with the witneffes, to call for evidence in his favour, and a fpeedy public trial,
“ by as impartial jury of the country, without the unanimous confent of which
“ jury he cannot be found guilty, nor can he be compelled to give evidence againft
“himfelf, nor can any man be juftly deprived of his liberty except by the laws of his liberty except by the laws of
“ the land or the judgment of his peers.” He faid, that in thefe expreffions, there was nothing ambiguous or uncertain ; they contained a recapitulation of the moft valuable privileges, in the moft pofitive language ; and they did not require to be illuftrated, or explained, by the Roman inftitutions, or the Britiʃh practice. Hither, be obferved, every man could fafely refort, in order to be taught the nature and extent of his rights and obligations and it would be fatal indeed to the caufe of liberty, if it was once eftablifhed, and the technical learning of a lawyer is neceffary to comprehend the principles laid down in this great political compact between the people and their rulets. Even with refpect to that claufe on which the proceedings of the Judges are particularly vindicated, he did not perceive a reafonable ground for the diftinction that was attempted, that the law oƒ the land was not, in fact, contra-diftinguifhed from the judgment oƒ his peers, but merely a diverfty in the mode of expreffing the fame thing. He admitted, however, that cafes did exift in which it was neceffary, for the fake of juftice, to empower the judges to exercife a fummary authority. For outrages committee in the face of the court,
for
