The Attorney General obferved, in reply, that though he had not been able to difcover any inftance of an indictment at common law, for killing an animal, or, indeed, for any other fpecies of malicious mifchief ; yet, that the reafon of this was probably the early interference of the ftatute law to punifh offences of fuch enormity ; for, that in all precedents, as well antient as modern, he had found the charge laid contra ƒormam ʃtatuit except in the cafe of an information for killing a dog;–upon which, however, he did not mean to rely. 12Mod. 337.
He faid, that the law proceeded upon principle, and not merely upon precedent. In the cafe of Wade for embezzling the public money, no precedent was produced ; and one Henry Shalleroʃs was lately condemned in Montgomery county, for maliciouʃly burning a barn, (and having hay or corn in it) though there was certainly no ftatute for punifhing an offence of that defcription in Pennʃylvania. The principle, therefore, is, that every act of a public evil example, and againft good morals, is an offence indictable by the common law; and this principle affects the killing a horfe, as much, at leaft, as the burning an empty barn.
But, he contended, that there were many private wrongs which were punifhable by public profecution ; and that with refpect to thefe a diftinction had been accurately eftablifhed in 2 Burr. 1129. where it is faid, that “ in fuch impofitions or deceits where common ” prudence may guard perfons againft the fuffering from them, the “ offence is not indictable, but the party is left to his civil remedy
tion originally propofed by Mr. Fitzʃoms in the committee. Mr. Findley then claimed the attention of the members, and after a judicious introduction, prefented the following refolutions to the chair, to fupercede Mr. Clymor's motion.
“Refolved, That the proceedings of the fupreme court againft Mr. Eleazer Oswald, in punifhing him by fine and imprifonment, at their difcretion, for a confructive or implied contempt, not committed in the prefence of the court, nor againft any officer, or order thereof, but for writing and publifhing improperly, or indecently, refpecting a caufe depending before the fupreme court, and refpecting fome of the judges of faid court, was an unconftitutional exercife of judicial power, and fets an alarming precedent, of the moft dangerous confequence, to the citizens of this commonwealth.”
“ Refolved, That is be fpecially recommended to the enfuing General Affembly, to define the nature and extent of contempts, and direct their punifhment.”
An interefting debate arofe upon thefe refolutions, in the courfe of which, much that had been faid in the committee was repeated, and many new ideas were fuggefted, upon the general queftion of the jurifdiction of the court in cafes of attachment. With refpect of Mr. Findley's propofitions, that gentleman ably fupported them upon the fpirit of the conftitution, and the expediency of the thing itfelf. But it feemed to be fatisfactorily anfwered by Mr. Lewis, 1ft. That the legiflative power is confined to making the law, and cannot interfere in the interpretation; which is the natural and exclufive province of the judicial branch of the government ; and 2dly, That the recommendation to the fucceeding affembly would be nugatory ; for the courts of juftice derive their powers from the conftitution, a fource paramount to the legiflature ; and, confequently, what is given to them by the former, cannot be taken from them by the latter.
Mr. Findley's motions were loft by a confiderable majoirty ; and Mr. Clymor's revived refolution, adopted by the houfe : Yeas 34. Naya 23.
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