1788.
Respublica versus Teischer.
THE Defendant had been convicted in the county of Berks upon an indictment for maliciously, wilfully, and wickedly killing a Horse: and upon a motion in arrest of Judgment, it came on to be argued, whether the offence, so laid, was indictable?
Sergeant, in support of the motion, contended that this was an injury of a private nature, amounting to nothing more than a Trespass; and that to bring the cafe within the general rule of indict-
ments
they could be judged and ascertained. He did not, therefore, intend to pursue Mr. Lewis, in the tract of legal disquisition; but, appealing confidently to the instrument itself, he deemed it to be his duty to pronounce, that the decision of the supreme court was a deviation from the spirit and the letter of the frame of government. In doing this, he observed, that he did not mean to assert, that any ground had been shewn for the impeachment of the judges. But, on the contrary, he agreed with Mr. Lewis, that bribery, corruption, or a willful and arbitrary infraction of that law, were the only true causes for instituting a prosecution of that nature; and his candor readily induced him to believe, that as none of these had been proved, neither did any of them actually exist on this occasion. But, he said, it was due to the dearest interests of posterity, that the legislature should act with that circumspection, should decide with that wisdom, which, leading on the one hand, to an acquittal of the judges, did not tend, on the other hand, to establish a baneful and destructive precedent. It was in this point of view, that the present proceeding presented itself to his mind, as a matter of the greatest magnitude and importance; and he said it were better far that Mr. Oswald had suffered in silence and obscurity, than that the attention of the legislature should be awakened, only to give additional strength and authority to the mistaken judgment of the court.
That it was a mistaken judgment, every man, he alledged, who possessed a competent share of common sense, and understood the rules of grammar, was able to determine on a bare perusal of the bill of rights and constitution. With these aids, he defied all the sophistry of the schools, and the jargon of the law, to pervert or corrupt the explicit language of the text; and therefore he regretted, that in listening to the ingenuity of Mr. Lewis's paraphrase, his admiration was not necessarily followed by conviction.
He then discussed the 9 sect. of the bill of rights, which provides, "that in all prosecutions for criminal offences a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favour, and a speedy public trial, by as impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty, nor can he be compelled to give evidence against himself, nor can any man be justly deprived of his liberty except by the laws of the land or the judgment of his peers." He said, that in these expressions, there was nothing ambiguous or uncertain; they contained a recapitulation of the most valuable privileges, in the most positive language; and they did not require to be illustrated, or explained, by the Roman institutions, or the British practice. Hither, be observed, every man could safely resort, in order to be taught the nature and extent of his rights and obligations; and it would be fatal indeed to the cause of liberty, if it was once established, and the technical learning of a lawyer is necessary to comprehend the principles laid down in this great political compact between the people and their rulers. Even with respect to that clause on which the proceedings of the Judges are particularly vindicated, he did not perceive a reasonable ground for the distinction that was attempted, that the law of the land was not, in fact, contra-distinguished from the judgment of his peers, but merely a diversity in the mode of expressing the fame thing. He admitted, however, that cafes did exist in which it was necessary, for the fake of justice, to empower the judges to exercise a summary authority. For outrages committee in the face of the court,
for
