1788.
ments for the protection of society, it was essential that the injury should be stated to have been perpetrated seceretly, as well as maliciously; which, last he said was a word of mere form, and capable of an indefinite application to every kind of mischief. To shew the leading distinction between Trespasses, for which there is private remedy, and crimes for which there is a public prosecution, he cited Hawk, Pl. Cr. 210. lib. 2.c.s. 4. And he contended that the principle of several cases, in which it was determined an indictment would not lie, applied to the case before the Court. 2Stra. 793. 1 Stra. 679.
The
for the misconduct of (illegible text) and for a disobedience or resiftance of its process, there seemed, he said, (illegible text)propriety in establifhing an immediate remedy. But, this did not extend, in his opinion to the cafe of constructive contempts ; to criminal offences perpetration of the view of the court; nor to be such acts, as in their nature, did not (illegible text) sudden punishment, and which, in their operation, involved a variety of facts, that a jury was only competent to investigate and determine.
With respect to the opinion offered by Mr. Lewis, that as attachments had issued in Pennʃylvania before the revolution ; and as the 24 sect of the constitution, declares, that the courts shall had all the powers which they usually exercised, therefore the power of proceeding by attachment is confirmed Mr. Findley observed, that the fallacy of this interpretation would be notorious, by recollecting that the last sentence of that very section stipulates, that such powers shall not be inconsistent with the constitution. Nor would be admit the inference which had been drawn from the next section, that says, “ trials shall be by jury as heretoƒore;” for, he said, it appeared by its content and immediate subject, that it related to the forms and modes of proceeding upon the trial, and not to the cases in which the trial ought to be allowed.
Having exprtiated with great energy, upon the different points of the constitution, which the subject brought into view; having asserted the right of every man to publish his sentiments on public proceeding; and having urged the danger of permitting the judges by implication to punish for offences against themselves (observing, that if it was a contenance to writ it also a contempt against themselves a cause depending in the (illegible text)) he concluded with intimating, that he should take an opportunity of (illegible text) resolution to the house, which might serve to averse the pernacious consequences of allowing the case of Mr.Oswald to grow into precedent.
Mr. Fitzsomons, a member from the city of Philadelphia, now moved the following resolution.
“Refolved. That (illegible text) house, having in a committee of the whole, gone into a full examination of the charges exhibited by Eleazer Oswald, of arbitrary and oppressive proceedings in the justices of this supreme court against the said Eleazer Oswald are of opinion, that the charges are unsupported by the testimony (illegible text), and, consequently that there is no just cause for impeaching the said justices.”
The posession contained in this resolution give rise to a short but animated conversation. On the one hand, it was said that is (illegible text)that there was no ground of impeachment, it was no intended to concerned , that the facts represented that, if there had been proved and on the other hand, it was answered,
“ was immure in prison, without even the shadow of a trial, for an imaginary of-
"fence," it would have been the indespenful duty of the legislature to vote for an impeachment. A compromise, at length, took place, and the committee of the whole agreed to report the following resolution.
“Resolved, That the charges exhibited by Mr. Eleazer Oswald against the justices of the supreme court, and the testimony given support of them, are not a sufficient ground for impeachment.”
But when this report was called up for the decision of the house, it was postponed (and consequently lost) on motion of Mr. Clymor, in order to introduce the resolu-
tion
