1788.
variation from it would be attended with great delay and injuftice; for when the act was paffed, although a Teʃtatum might iffue in three months from a Court of Common Pleas, it muft have been fufpended for fix months in the Supreme Court ; and thus a debtor would have it in his power to give an unfair preference to creditors in the County where he lives.
Sergeant, in reply, ftated, that the Supreme Court has powers fimilar to the Courts of King's Bench and Common Pleas in England, and that the courfe of practice, with refpect to a Teʃtatum, had al-
2dly, Abufing parties who are concerned in caufes there; and 3dly, Prejudicing mankind againft perfons, before the caufe is heard. 1 Atk 471. And in 2 Veʃey 520, though no reflection was caft upon the court, and the offender pleaded ignorance of the law, yet, it is reprefsly laid down, that ignorance was not an excufe, and that the reafon for punifhing was, not only for the fake of the party injured, but alfo for the fake of the public proceedings in the court to hinder fuch advertifements, which tend to prepoffefs people as to thofe proceedings. A fimilar doctrine is maintained in 1 P.Williams 675. And 4 Black. Com. 282. pronounces the printing, even true, accounts of a caufe depending in judgment, to be a contempt of the court.
But it has been faid, that this ufe was not depending in court, when the offence was committed, becaufe the addrefs was publifhed on the firʃt of July, and the writ againft Mr. Oʃwald was not returnable ‘till the ʃucceeding day. This idea originates in an ignorance of the conftitution of the courts of England. There all original procefs iffues out of the Court of Chancery, and is made returnable into the King's Bench or Common Pleas ; fo that, is truth, the writ gives the jurifdiction, and, of courfe, ‘till it is returned, the court cannot take cognizance of the caufe. Here, however, the original procefs issues out of the very court into which it is returnable, and is ufually tefted the laft day of the preceding term. It is abfurd, therefore, to fay that the jurifdiction of a court, by whofe authority a fuit is actually inftituted, can be thus fufpended and parcelled out.
With refpect to the addrefs itfelf Mr. Lewis annalyfed its offenfive parts, in order to fhew that it treated the judges with indecent opprobrium ; that, in fome refpects, it was inconfiftent with truth, and that, in its general operation, it was intended, and could not fail, to excite refentment againft Browne, the plaintiff, and compaffion for Oswald, the defendant, in the caufe.
He now preceeded to confider the mode of punifhment, which formed a material part of Mr. Oʃwald‘s complaint, and, in fupport of its legality, refered, generally, to the authorities which he had already cited. He obferved that much declaration has been wafted upon this topic ; and that the proceeding by attachment had been vehemently reprobated us thecreature of the Court of Star Chamber. Though that court might have employed the procefs of attachment (of which, however, he did not recollect an inftance) yet, he infifted, that it was idle and abfurd to confider it an one creature of a jurifdiction, whofe own exiftence was of a much later date, than that of the fubject to which we are told it gave birth. To prove this, he ftated that the court of Star Chamber was not inftituted ‘till the year 1368 ; that Magna Charta was confirmed, at leaft, 113 years before that time ; and, as all the authorities concur in declaring that the procefs by attachment is as ancient as the laws themfelves and that it was confirmed by Magna Charta, its origin is confequently long antecedent to that of the Court of Star Chamber. 4 Black Com. 280. 281.282. 283.284.285.
But he argued, with great ftrength and perfpicuity, that the procefs of attachment, which he practice was multiplied into innumerable ufes, was effential to the adminiftration of juftice; and that if the exercife of this power was fuppreffed, the courts themfelves might as well be annihilated. He reprefented, that it was an eftablifhed principle in law, that one court could not punifh a contempt committed againft another, then, continued, he, how fhall the Common Pleas repel an
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