1788.
The Attorney General observed, in reply, that though he had not been able to discover any instance of an indictment at common law, for killing an animal, or, indeed, for any other species of malicious mischief; yet, that the reason of this was probably the early interference of the statute law to punish offences of such enormity; for, that in all precedents, as well antient as modern, he had found the charge laid contra formam statuti except in the case of an information for killing a dog;—upon which, however, he did not mean to rely. 12 Mod. 337.
He said, that the law proceeded upon principle, and not merely upon precedent. In the case of Wade for embezzling the public money, no precedent was produced; and one Henry Shallcross was lately condemned in Montgomery county, for maliciously burning a barn, (not having hay or corn in it) though there was certainly no statute for punishing an offence of that description in Pennsylvania. The principle, therefore, is, that every act of a public evil example, and against good morals, is an offence indictable by the common law; and this principle affects the killing a horse, as much, at least, as the burning an empty barn.
But, he contended, that there were many private wrongs which were punishable by public prosecution; and that with respect to these a distinction had been accurately establifhed in 2 Burr. 1129, where it is said, thatin such impositions or deceits where common prudence may guard persons against the suffering from them, the offence is not indictable, but the party is left to his civil remedy
"for
tion originally proposed by Mr. Fitzsimons in the committee. Mr. Findley then claimed the attention of the members, and after a judicious introduction, presented the following resolutions to the chair, to supercede Mr. Clymer's motion.
"Resolved, That the proceedings of the supreme court against Mr. Eleazer Oswald, in punishing him by fine and imprisonment, at their discretion, for a constructive or implied contempt, not committed in the presence of the court, nor against any officer, or order thereof, but for writing and publishing improperly, or indecently, respecting a cause depending before the supreme court, and respecting some of the judges of said court, was an unconstitutional exercise of judicial power, and sets an alarming precedent, of the most dangerous consequence, to the citizens of this commonwealth."
"Resolved, That is be specially recommended to the ensuing General Assembly, to define the nature and extent of contempts, and direct their punishment."
An interesting debate arose upon these resolutions, in the course of which, much that had been said in the committee was repeated, and many new ideas were suggested, upon the general question of the jurisdiction of the court in cases of attachment. With respect of Mr. Findley's propositions, that gentleman ably supported them upon the spirit of the constitution, and the expediency of the thing itself. But it seemed to be satisfactorily answered by Mr. Lewis, 1ft. That the legislative power is confined to making the law, and cannot interfere in the interpretation; which is the natural and exclusive province of the judicial branch of the government; and 2dly, That the recommendation to the succeeding assembly would be nugatory; for the courts of justice derive their powers from the constitution, a source paramount to the legislature; and, consequently, what is given to them by the former, cannot be taken from them by the latter.
Mr. Findley's motions were lost by a considerable majority; and Mr. Clymer's revived resolution, adopted by the house: Yeas 34. Nays 23.
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