you tempt me to break the peace; and his blood be upon your heads. Shall I lie by, and let the imputation rest upon my cause, or affect the decision, and take my chance of a circuitous prosecution, when the law gives me an immediate protection, in the shape of supporting your dignity? I have a right in the power which you possess; and I call for the exercise of that power."

This is called the power of the court; but it is founded upon the right of the citizen. It is the duty of the court to proceed in this way, when called upon; because the suitor has the election of -the proceeding, by calling on the court; or by indictment for the libel.

But under an attachment, you call upon a party to say whether he is not the author of the writing. That is against a principle of the common law; no one is bound to accuse himself; and by a clause of the constitution, no one is compellable "to give evidence against himself." But the parts of the law must be taken together; exceptions subject to the general rules. The proceeding by attachment, and compelling to answer on interrogatories put, existed under the common law, whose maxim it was, "no one is bound to accuse himself." It is a special case out of the general principle: and there is good reason for the exception. But whether reason, or not, the exception is as old as the principle. For this proceeding, and such interrogation is of immemorial usage; it is as old as the constitution of the courts themselves. If our constitution had meant to do away this exception, it would have voted it in express terms; more especially as it had been exercised by the courts before the formation of the constitution; and by implication recognized by the legislature itself, in the case of Oswald, taken up by the house. But the constitution gives the courts, "the powers usually exercised." This power was usually exercised, and therefore it is given.

of law, and constitution. How can I fix a libel on

But there is reason for it, independent The administration of justice requires it. the author? The presumption is, that my adversary in the cause depending, is the author of the writing that affects the merits of it. On this presumption the law gives me a right to call upon him. Who else can be supposed to interfere but my adversary; or some one with his privity? The necessity of the case justifies this exception to the general rule. He may go on behind the scene and prejudice the public mind against me and my cause, and leave me to my redress afterwards. The law will not allow this. If it is

not a principle of the law, it ought to be a principle. But it is a principle as old as our Saxon ancestry, from whom the trial by jury is derived. It is coeval with the trial by jury, and necessary to its preservation. It is a safeguard of the trial in which the bulk of the people are especially interested. Before they give it up let them think. Leave it to the suitors in court, and at least one side will always object to it; probably both. All that wish a fair and unprejudiced decision will object to it. They will not be satisfied with being turned round to an indictment, and the slow process of a jury trial to establish the fact of the libel. But they will wish more, that the party interested, shall be purged on his oath, as to his agency in the publication. In this case, they have the conscience of the party to establish the guilt. And the looking forward to him, will lessen his hope of escaping detection. It is a great pri vilege to an honest man. It is the rogue only that needs fear it.

But though the bare circumstance of being a party to the suit depending, may found such presumption of being the author of the writing, as will justify the calling on the party to answer, by a rule to shew cause why an attachment should not issue, yet it is never done, and perhaps ought not to be done, without an affidavit of some fact to lay a ground for the motion. This in the case of a third person, is absolutely necessary; for no presumption of the nature already stated, can exist.

But the negative of the party to the suit depending, or of a third person, on oath, dissolves the rule, and there is an end of the summary interposition. This is a privilege peculiar to this special proceeding and not possessed in the case of an indictment by a grand jury. It softens the extraordinary remedy, by suffering a man to be a witness for himself: and what is more ; taking what he says, to be the truth, and so far as respect the attachment, incontrovertible.

But if this power, though founded on law, and the constitution, should be deemed contrary to the spirit of liberty, or good policy, a clause of a few lines, can put an end to it: viz. "That in the case of consequential contempts, by interference in a cause depending, the proceeding shall be by indictment, in the first instance; and in no other way." It will relieve the court from a burden, which they conceive a duty; and experience will determine whether the alteration of the common law in this particular be an evil or a good.

But of what use can a rogue's oath be? He is not supposed to have a conscience. But he can look to an indictment for perjury. But suppose he did not know, or at least think there was a cause depending; and that he did not mean a contempt. It is not what he thought, or what he meant; but was there a case depending, and what did he do?

But at this rate you abridge the liberty of speech, and of writing; you make it dangerous to canvass a general principle of law; for some suit may be depending on which it may turn. The law goes no such length. I am at liberty to canvass a general principle. It is a consideration of the particular case from which I am excluded; or the application of the facts to the law. The legality of general warrants was abundantly canvassed, at the time Wilkes was the subject of one of them; and no exception taken to the freedom of the press in this particular. The constitutionality of the sedition law of the United States, was brought into view pending indictments under it; and no exception. I am canvassing a gene ral principle at present; and there are impeachments depending where it may be brought into view. That is nothing; for it is the facts of the case that will be ultimately considered.

The courts may have this power, and yet may exercise it with partiality, oppression, and tyranny. This will render the exercise of any power impeachable. For this the accused must put themselves upon the country; or if clearly and palpably, a court have no such power at all, and yet exercise it, it is a misdemeanor. For error in judgment where there is a right to judge, is not impeachable; but the exercise of a power unknown to the law, even though unaccompanied with express malice, is impeachable, and will subject to a reprimand, &c. according to the circumstances. The rights of the citizen are thus secured; and far be it from me to abridge them, even in idea, by any reasoning I may offer.

NOTES

ON SMITH'S EDITION OF THE

LAWS OF PENNSYLVANIA.

T

BY an act of Assembly of 28 Feb. 1810, provision is made for a publication of the laws, to be examined and approved by the judges of the supreme court, and the Governor is authorised to appoint some fit person inter alia "to insert the notes of judicial decisions." To what must the examination, and approbation of the supreme court be considered as extending? It could not respect type, press-work, or fidelity of the publication, compared with the enrolled acts; or even the arrangement of the laws; but what was immediately within the province of their judgment, the insertion of the notes of judicial decisions. Nor could this examination and approbation be considered as vouching for the correctness of the decisions; but, only at most, for the correct statement of these decisions. Nor even that indeed, for no record is kept of decisions, but only of causes in which such decisions are made. And this, without recurring to the prothonotary's dockets, was not in their power. It would require a labour of years to ascertain all these. But as to the reasons of the decisions in a particular case, this could only be collected from the notes of judges; or others who had taken notes. And these notes could not always be considered as correctly taken, unless noted by the judge himself at the time he delivered his opinion. Nor had any one judge the notes of other judges in his power; much less, of those taken by the counsel at the bar; or, by others. And what is more, in the case of judges who had set on the bench before him, and were deceased, unless from papers left behind them,

1

which might, or might not be furnished, there was no opportunity of information. The notes of judges, or of others, is private property; and even an act of assembly could not enforce the procuring them.

But an impracticable consequence must follow if their examination, and approbation was to involve a consideration of the law of the decisions. For that would require of them with the reasons given, much time, and be inconsistent with the prescribed official attendance, and necessary hearing and adjudication of causes in court.

A great mischief would also follow, that these decisions. should be sanctioned, or disapproved without argument in the particular point of law, when it comes again to be considered. For though the stare decisis is a salutary maxim; and the non ita refert, may be taken into view; yet every party, in his particular case, has a right to contest his decision; for decision is but the evidence of law; and the judge himself has a right to depart from the decision of others; and, even from his own, in a new case. It cannot therefore be supposed that the legislature in imposing the duty could mean to forestal the opinions of the identical judges at a future day, by such a revision. They could mean, only; and certainly did mean no more, than to call for some judgment in bulk upon the work, as to the reasonable industry, and pains be stowed in collecting decisions. Whether these were right, or wrong, they could not be considered as expressing an opinion. Nay, on the contrary, if decisions in the individual opinion of any of them; or of the whole erroneous, were left out, it would be a reason for refusing their approbation. The public had it in view; and had a right to know, as far as possible what decisions had taken place. This doubtless, with a view to provide by law where they might think it necessary to interpose. This, by acts declaratory of what they conceiv ed the law to have been, or explanatory of acts of the legislature, where the construction put upon them by the courts, appeared, as they might think, to be erroneous: or, to supply or amend where there appeared to be a defect in the acts themselves.