450 
real bona fide objects of the assembly 
when met. : 
It is unnecessary to enlarge upon these 
priverples, because their notoriety has 
no doubt suggested this novel attempt to 
proceed by attachment, where they have 
mo place; and I cannot help remarking, 
that the prosecutor (if his prosecution be 
founded in policy or justice) has acted 
with great indiscretion, by shewing that 
he is afraid to trust the people with that. 
decision upon it which belongs to them 
by the constitution; and which they are 
more likely to give with impartial justice, 
than the judges whom he desires to de- 
cide upon it at the expence of their oaths 
and of the law. 
This is a strong expression, which per- 
haps I should not have used in answer- 
ing the same case in the ordinary course 
of business; but writing to you, as a gen- 
tleman, I have no scruple in saying, that © 
the judges of the Court of King’s Bench 
cannot entertain a jurisdiction by attach- 
ment o:er the matter contained in the 
afidavit which you have sent me, without 
such a gross usurpation and abuse of 
power, as would make me think it my 
duty, were Ia member of the Irish par- 
hiament, to call them to account for it 
‘by impeachment. 
The rights of the superior courts to 
proceed by attachment, and the limita- 
tions imposed upen that right, are esta- 
blished upon «principles too plain to be 
misunderstcod. 
Every court must have power to enforce 
its own process, and to vindicate con- 
tempts of its authority; otherwise the 
Jaws would be despised, and this obvious 
necessity at once produces aud Inmits 
the process of attachment. 
Wherever any act is done by a court 
which the subject is bound to obey, obe- 
dience may be enforced, and ‘disobedi- 
ence punished, by that summary pro- 
ceeding. Upon this principle attach- 
ments issue against officers for contempts 
in not obeying the precess of courts di- 
rected to them, as the ministerial ser- 
vants of the law; and the parties ou whom 
Stch process is served, may, in like man- 
ner, be attached for disobedience. 
Many other cases might be put, in, 
which itis a legal proceeding, since every 
act which goes directly to frustrate the 
mandates of a court of justice, is a con- 
tempt of its authority. But I may ven- 
ture to Jay down this distinct and abso- 
lute limitation of such process, viz. 
that it can only issue in cases where the 
court which issuesit, has awarded some 
Lord Erskine’s Opinion on Summary Attachment. 
* 
» 
[June I, 
process, given. some judgment, made 
some legal order, or done some act, 
which the party against whom tt issues, 
or others on whom it is binding,- have 
either neglected to obey, contumaciously 
refused to submit to, excited others to 
defeat by artifice or force, or treated 
with terms of contumely and disrespect. 
But no crime, however enormous, even 
open treasen and rebellion, which carry 
with them a contempt of all law, and the 
authority of all courts, can possibly he 
considered as a contempt of any parti- 
cular court, so as to be punishable by 
attachment; unless the- act, which 1s 
the object of that punishment, be in di- 
rect violation or obstruction of something 
previously done by the court which issues 
it, and which the party attached was 
bound, by some antecedent proceeding. 
of it, to make the rule uf his conduct. 
A constructive extension of contempt 
beyond the limits of this plain principle 
would evidently imrolve every misde- 
meanor,.and deprive the subject of the 
trial by jury, in all cases where the pu- 
nishment does not extend to touch his 
life. 
The peculiar excellence of the English 
government consists in the right of being 
- 
judzed by the country in every criminal 
case, and uot by fixed magistrates ap- 
pomted by the crawn. In the higher 
ordex of crimes, the people alone can ac- 
cuse, and without their leave, distinctly: 
expressed by au indictment found before 
them, no man can be capitally arraigned ; 
and in ali the lesser misdemeanors, whicl 
either the crown, or individuals borrow- 
ing its authority, may prosecute, the . 
safety of individuals and the public free- 
dom absolutely depend upon the well. 
known immemorial right of every de- 
fendant to throw himself-apon his coun- 
try for deliverance by the general plea of 
—Not Guilty. By that plea, which in 
nv such case can be demurred to by the 
Crown, or questioned by its judges, the 
whole charge comes before the jury on 
the general issue, who have ajurisdiction 
co-extensive with the accusation, the ex= 
ercise of which, in every instance, the 
authority of the court can neither mit, 
supersede, controul, or punish. > 
Whenever this ceases to be the law of 
England, the English constitution is at 
an end; and its period in Ireland is ar- 
rived already, if the Court of King’s 
Bench can convert every crime, by con- 
struction, into acontempt of its autho- 
rity, in order to punish Ly attachment. — 
By this proceeding the party offended 
8 
