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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 such neceflity as there is now that law should be a profeflion, or that there should be professional lawyers or judges ; nor were there any such ; fince they have become necessary, fince crown judges have been appointed; but still the wisdom of the constitution has faid, let there be professional and crown judges for law ; but there must be popular judges, that is jurors, for the fact. But, to the present subject : As the county courts dispensed all law within the county, so did the national assembly or wittenagemote dispense law in other matters. What follows That at first not only final, but original judicature was exercised by the national assembly. 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 indispensable functions, cannot be doubted.
• What do I infer from this ? That when original"judicar ture was transplanted from the national assembly to the courts of justice, which we now see, this necessary law of privilège and protection accompanied the transfer, by the wise 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 neceflity only, and never to be extended beyond that necessity. 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 neceflity 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 subject at large ; that it is by definitie 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 the person on whom it is executed has abused or resisted the process or order of the court of parliament, or when he is in such a situation that there is, as it were, a privity between him and the body in whom the privilege refides.
when 66 As would wise
« In its origin it was so confined as to extend only to contempts committed in the presence of the court or parliament. Hence the nature of the process of attachment is personal only; that is to say, it is merely an apprehension of the person; because it was supposed 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 issues; no alias ; no pluries; it is a personal process only, because originally intended for contempts committed in person, and in presence only.
" A short view of the Norman æra, will shew that the present doctrine of attachment, has no foundation but in the star-chamber. William the Conqueror overturned the whole constitution ; by an arbitrary fiction, he assumed to be the proprietor of the whole soil, 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 afsemblies, such as the Saxon, he held none; as to parliaments, such as we know, he held none. If he held any public councils, they were councils of barons only, and those partially and arbitrarily summoned, 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 shall be particularly, that is to say, 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 should be fummoned; and, 2d, that no man would be summoned who was not a major baron,
" As to the judicial power, which is our object, he cancelled, in effect, the Saxon constitution 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 ecclesiastic, whom he brought from Normandy to preside in that court, in the character, and with the title of capitalis justiciarius ; and here the enemies of liberty take their stand.
“ They point to the ruins of the constitution, and from them they pretend to delineate its fabric, and to establish its principles on its subversion. But the right honourable member (the Attorney General ] might as well tell me that the curfeu, or that the conquest was a part of the constitution, as that the aula regis was so.
« This court and this justiciary, established by a tyrant to support his tyranny, foon became a tyrant in the reigns of his successors, both to the prince and to the people, and rose to such enormity in the reign of Henry III. when Bracton wrote, whom the right honourable gentleman [the Attorney General] has quoted, that the son 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 justly ftiled, the Justinian 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 they would be a description of a court not belonging to our constitution, and then in the stage of its most exceflive usurpation. As well might a man state the regal power in England, by stating the practice of James II. immediately before his de posal. But Bracton only used general words, and not the word attachment; and his words would prove nothing on the subject, because they would prove too much ; for they would equally prove that attachments might be used in cases between individual and individual, as between the court and the servants of the court or the magistrate.
“ Again I lay that the first principles of our criminal ju. risprudence declare, that no man shall be forced to give evidence against himself, and that no man shall 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. Constitutional doctrines may be established by principle; but un. constitutional doctrines can only be maintained by precedents exactly in point. What follows ? Till the reign of Edward I. the present courts of judicature did not exist. Till then no precedent, in point, could exist. Neither can we possibly have a record of any such 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, fay? In his zeal to establish attachments, in their full extent, he forgets his knowledge. He quotes the statute of 13th of Edward I. and says, that it seems as if commitment for contempts was founded in that statute. -Whoever reads the statute will see that it has nothing to say to the subjecl; but this is not all. The judge is guilty of the groffest anachronism. In what respect? Though, says 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 seventy years before, could have had in contemplation, a statute that was to pass seventy years after. What use do I make of this? I use it to prove that at that period there was no foundation for the present doctrine of attachment, other
wise fo great a man, fo zealous in the cause, would not have committed so 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 statute, I leave the reading of it to prove, that that had no. thing to say to the subject; and then I will pass from Gilbert to Blackstone, 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 case, so 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 ? That 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 subject is desperate, and that the point is incapable of proof. No precedent is possible to be found before Edward III. The tumultuary reigns that were infested 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 statute was found necessary to support the court of star-chamber. And why? Because the practices of that court could not be supported by the common law of the land. Attachments, in full extent, then, began indeed. But they began in the star-chamber, and under that statute. By example, it is true, they crept into other courts; which are apt enough to favour increase of jurisdiction; but as they rose (in their culpable extent) with that statute, which was made to support the star-chamber, so also, they must be considered, as falling with that statute.