1788.
ments for the protection of society, it was essential that the injury should be stated to have been perpetrated secretly, 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. 22. 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 its officers and for a disobedience or resistance of its process, there seemed, he said, to be a propriety in establishing an immediate remedy. But, this did not extend, in his opinion to the case of constructive contempts; to criminal offences perpetration of the view of the court; nor to be such acts, as in their nature, did not call for a 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 Pennsylvania before the revolution; and as the 24 sect. of the constitution, declares, that the courts shall have 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 he admit the inference which had been drawn from the next section, that says, "trials shall be by jury as heretofore;" 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 expatiated 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 contempt to write, it also a contempt to speak of a cause depending in the court) he concluded with intimating, that he should take an opportunity of submitting a resolution to the house, which might serve to avert the pernicious consequences of allowing the case of Mr. Oswald to grow into precedent.
Mr. Fitzsimons, a member from the city of Philadelphia, now moved the following resolution.
"Resolved. That this 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 the supreme court against the said Eleazer Oswald, are of opinion, that the charges are unsupported by the testimony adduced, and, consequently that there is no just cause for impeaching the said justices."
The proposition contained in this resolution, gave rise to a short but animated conversation. On the one hand, it was said, that in admitting that there was no ground of impeachment, it was not intended to concede, that the facts represented in the memorial had not been proved; and, on the other hand, it was answered, that, if there had been proof that the memorialist, according to the complaint, "was immured in prison, without even the shadow of a trial, for an imaginary offence," it would have been the indispensable 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. Clymer, in order to introduce the resolu-
tion
