the county judged. Thus there were originally judges, both of law and fact, though now it is attempted to exclude them even from the latter. In the fimplicity of that time, and in the paucity of laws, there was then no fuch neceffity as there is now that law should be a profeffion, or that there should be profeffional lawyers or judges; nor were there any such; fince they have become neceffary, fince crown judges have been appointed; but ftill the wifdom of the conftitution has faid, let there be profeffional and crown judges for law; but there must be popular judges, that is jurors, for the fact. But, to the present fubject: As the county courts difpenfed all law within the county, fo did the national affembly or wittenagemote difpenfe law in other matters. What follows? That at firft not only final, but original judicature was exercifed by the national affembly. Now, that that affembly had a law of privilege, analogous to ours, to protect its dignity, and to defend it, in the neceffary exercise of its indispenfable functions, cannot be doubted.

"What do I infer from this? That when original judica ture was transplanted from the national affembly to the courts of justice, which we now fee, this neceffary law of privilège and protection accompanied the transfer, by the wife spirit of our constitution, and that the practice of attachment is, in the courts of justice, rightly understood and limited, exactly what our law privilege is to the parliament. Now every man knows that the law of privilege, in parliament, is grounded on neceffity only, and never to be extended beyond that neceffity. Every body knows what a clamour the courts of justice would make, and the nation too, if parliament were to extend its privilege an atom beyond the absolute neceffity of self-protection. Every man knows that the law of privilege is only meant for internal purposes, if I may say so, and not for the community, or for the fubject at large; that it is by definiti on priva lex, and never to be indulged to the extinction of the lex publica, and that it never ought to be exerted, except

when

when the person on whom it is executed has abused or refifted the process or order of the court of parliament, or when he is in fuch a fituation that there is, as it were, a privity between him and the body in whom the privilege refides.

"In its origin it was fo confined as to extend only to contempts committed in the presence of the court or parliament. Hence the nature of the procefs of attachment is perfonal only; that is to fay, it is merely an apprehenfion of the perfon; because it was fuppofed that the person committing the contempt must be present, and that his caption was unavoidable; and hence it is, that when caption is avoided, the process to this hour is ineffectual; no diftringas iffues; no alias; no pluries; it is a perfonal process only, because originally intended for contempts committed in person, and in presence only.

"A fhort view of the Norman æra, will fhew that the present doctrine of attachment, has no foundation but in the ftar-chamber. William the Conqueror overturned the whole conftitution; by an arbitrary fiction, he affumed to be the proprietor of the whole foil, and divided it into 60,000 knights-fees, that he might have, in effect, an army of 60, ooo knights bound to him by all the chains of the tyrannous Norman feod which he introduced. As to national affemblies, fuch as the Saxon, he held none; as to parliaments, fuch as we know, he held none. If he held any public councils, they were councils of barons only, and those partially and arbitrarily fummoned, a fault in which he was imitated by most of his immediate fucceffors. Hence one of the articles of magna charta is, that the major barons fhall be particularly, that is to fay, individually fummoned. What conftituted the major baron was then perfectly known, though now imperfectly. But this article had a double operation; it required, ift, that every major baron fhould be fummoned ; and, 2d, that no man would be fummoned who was not a major baron.

"As

"As to the judicial power, which is our object, he cancelled, in effect, the Saxon conftitution and the county courts, and substituted a Norman court, called the aula regis in the place of them, and compelled the people to quit their native judicatures and their native language, and to plead in the Norman language, and in this Norman judicature, before an ecclefiaftic, whom he brought from Normandy to prefide in that court, in the character, and with the title of capitalis juticiarius; and here the enemies of liberty take their stand.

"They point to the ruins of the conftitution, and from them they pretend to delineate its fabric, and to establish its principles on its fubverfion. But the right honourable member [the Attorney General] might as well tell me that the curfeu, or that the conqueft was a part of the conftitution, as that the aula regis was fo.

"This court and this jufticiary, established by a tyrant to support his tyranny, foon became a tyrant in the reigns of his fucceffors, both to the prince and to the people, and rofe to fuch enormity in the reign of Henry III. when Bracton wrote, whom the right honourable gentleman [the Attorney General] has quoted, that the fon of that Henry III. namely Edward I. overthrew that court, and established on its ruins the four great courts of judicature which we now poffefs, and has been thence juftly ftiled, the Juftinian of England. If Bracton's words, therefore, as quoted, were applicable to attachments, which the very reading of them shews that they are not, yet they could be of no authority, because the would be a description of a court not belonging to our conftitution, and then in the stage of its moft exceffive ufurpation. As well might a man ftate the regal power in England, by stating the practice of James II. immediately before his depofal. But Bracton only used general words, and not the word attachment; and his words would prove nothing on the fubject, because they would prove too much; for they

would

would equally prove that attachments might be used in cafes between individual and individual, as between the court and the fervants of the court or the magiftrate.

"Again I fay that the first principles of our criminal jurifprudence declare, that no man fhall be forced to give evidence against himself, and that no man fhall be convicted, but by judgment of his peers. Attachment is an exception to this general rule. It proves the rule indeed, but as it cannot prove itself, it must be established by proof; and nothing but precedent, in point, can be admitted. Conftitutional doctrines may be established by principle; but unconftitutional doctrines can only be maintained by precedents exactly in point. What follows? Till the reign of Edward I. the prefent courts of judicature did not exift. Till then no precedent, in point, could exift. Neither can we poffibly have a record of any fuch precedents earlier than a subsequent reign, namely that of Edward II. for with Edward II. and not before the year books begin. What does Lord Chief Baron Gilbert, that great lawyer and antiquarian, say? In his zeal to establish attachments, in their full extent, he forgets his knowledge. He quotes the statute of 13th of Edward I. and fays, that it feems as if commitment for contempts was founded in that statute. -Whoever reads the statute will see that it has nothing to fay to the subject; but this is not all. The judge is guilty of the groffeft anachronifm. In what refpect? Though, fays he, no man can be imprisoned, according to magna charta, but by judgment of his peers, or by the law of the land, yet this ftatute of Edward I. is lex terræ, as if those words could mean any thing but what was law at the time, or as if King John and the barons feventy years before, could have had in contemplation, a ftatute that was to pafs feventy years after. What use do I make of this? I use it to prove that at that period there was no foundation for the prefent doctrine of attachment, other

That

wife fo great a man, fo zealous in the cause, would not have committed fo deplorable an error. I use it to prove, that the words of magna charta, or Bracton's words quoted by the Attorney General, being prior to that statute, of Edward I. are committed by the authority of that judge, not to be applicable to attachments, of which he places the origin not higher than the statute of the 13th of Edward I. As to that ftatute, I leave the reading of it to prove, that that had nothing to fay to the fubject; and then I will pass from Gilbert to Blackftone, who animadverts on the error of Gilbert, and then falls into as great an error himself. For what does he do? He quotes the year books for precedents of attachments, but a learned member has gone through every cafe, fo quoted from the year books, and has found that in every one of those cafes it appears by the year book, that a jury was empanelled: What follows? That every one of Blackstone's authorities are overturned. And what is the natural inference? when two great judges and antiquarians have laboured this point, they have been able to prove nothing but their own errors in law, and in fact, that the fubject is desperate, and that the point is incapable of proof. No precedent is poffible to be found before Edward III. The tumultuary reigns that were infefted by the wars of York and Lancaster, are not times of precedent; if in that period any had been produced, which yet there have not. What follows? We are brought to the reign of Henry VII. and then a ftatute was found neceffary to support the court of star-chamber. And why? Because the practices of that court could not be fupported by the common law of the land. Attachments, in full extent, then, began indeed. But they began in the star-chamber, and under that ftatute. By example, it is true, they crept into other courts; which are apt enough to favour increase of jurifdiction; but as they rofe (in their culpable extent) with that ftatute, which was made to fupport the star-chamber, so also, they must be confidered, as falling with that statute.

"What