1788.
The Defendant appearing on Monday the 14th, agreeably to the rule to fhew caufe, obtained on Saturday, prayed that the rule might be enlarged, as he had not had a reafonable time to prepare for the argument. But Lewis oppofed the enlargement of the rule, obferving that the defendant would be heard in extenuation, or excufe, of the contempt, after the attachment had iffued.
By M‘KEAN, C.J.–I know not of nay inftance where a delay of a term has been allowed in the cafe of an attachment: one reafon for fuch a fummary proceeding is to prevent delay. Let caufe be now fhewn.
Sergeant, in fhewing caufe againft the attachment, contended that the doctrine, in 4 Black. Com. 280. was laid down much too wide; that in 2 Atk 469. the Chancellor exprefsly affigns this reafon, for his determining without a jury, that he was a judge of ƒact; and in 1 Burr.510. 513 an information is granted on this principle, that courts of common law will not decide upon facts without the intervention of a jury.
M'KEAN, C.J.– This was not the reafon that influenced the court in their decifion.
But, whatever the law might be in England, Sergeant in fifted that it could not avail in Pennʃylvania. Even in England indeed, though it is faid to be a contempt to report the decifions of the courts, unlefs under the imprimatur of the judges ; yet, we find Burrow, and all the fubfequent reporters, proceeding without that fanction. But the conftitution of Pennʃylvania authorizds many things to be done which in England are prohibited. Here the prefs is laid open to the infpection of every citizen, who wifhes to examine the proceedings of the government ; of which the judicial authority is certainly to be confidered as a branch. Conʃt. Penn. ʃect. 35.
M'KEAN, C.J.– Could not his be done in England? Certainly it could: for, in fhort, there is nothing in the conftitution of this ftate, refpecting the liberty of the prefs, that has not been authorized by the conftitution of that kingdom for near a century paft.
Sergeant. The 9th ʃection oƒ the Bill oƒ Rights, however, puts this fuppofed offence into fuch a form, as muft entitle the defendant to a trial by jury; and precludes every attempt to compel him to give evidence againft himfelf. It declares, “that, in all profecutions for
“ criminal oƒƒences, a man has a right to be heard by himfelf and
“ his council, to demand the caufe and nature of his accufation, to
“ be confronted with the witneffes, to call for evidence in his favour,
“ and a fpeedy public trial, by an imparital jury of the country, without
“ the unanimous confent of which jury he cannot be found guilty;
“ nor can he be compelled to give evidence againʃt himʃelʃ; not can any
“man be juftly deprived of his liberty except by the laws of the
“land, or the judgment of his peers.–” Now, the prefent proceeding againft the defendant is for a criminal oƒƒence; and, yet, if the attachment iffues, the effential parts of this fection muft be defeated for, in that cafe, the defendant cannot be tried by a jury; and, ac-
