1

plainant, and are of opinion, that the fummary mode of punishing contempts, by attachment as laid down in the English books, and practised by our Courts, is not agreeable to the genius of the conftitution and laws of the commonwealth of Pennfylvania, although fuch power may be a neceffary attendant upon every fuperior tribunal in cafes of direct contempts, which openly infult or refift the authority of the Court, or the perfons of the judges who prefide there while in the actual difcharge of their official duty.

The committee are of opinion there is no neceffity of fuch a power in the courts of justice, where the contempts are only confequential or conftructive, and not committed in the hearing of the Court, nor by treating with difrespect the rules or procefs thereof; every decision of facts, by courts of law, without the intervention of a jury, is a step towards establishing arifocracy, the moft oppreffive of abfolute governments, and if not timely guarded against, may imperceptibly undermine the trial by jury, the beft prefervative of liberty: The committee therefore offer the following refolution, viz.

Resolved, That a committee be appointed to prepare and report a bill, to define the powers of the courts of justice to punish contempts in a fummary mode.

The foregoing was made the order of the day, for Monday, the 14th of March, but it was not called up on that day. On the 15th, the report and memorial were read a fecond time, and on motion of Mr. D. Mitchel and Mr. A, Leacock, committed to a special committee, confifting of Meffrs. C. Porter, J. Engle, J. Simpfon, R. Welles, and W. Steele, who, on the 18th, made the following report :

That the committee have attended to the memorial, and examined the documents adduced in evidence to fubftantiate the charges, and from the view they have taken of the fubject, they are of opinion, that fufficient cause exifts to inftitute an enquiry, but in confequence of the late period of the feffion, it would be inexpedient to enter into an investigation at this time: That in the opinion of the committee, a law ought to pass, declaring what fhall conftitute a contempt of court, that neither paffions nor prejudices may operate to the injury of individuals; that a contempt being defined, the citizens will not be exposed to the commiffion of an unknown crime; that to fecure their Jiberty and protect their property, is the duty and prero

gative of the Legislature: Under fuch impreffions, the Committee offer the following refolutions, viz.

1. Resolved, That a committee be appointed to draft and report a bill, defining what shall conftitute a contempt of court.

2. Resolved, That it be especially recommended to the fucceeding Houfe of Reprefentatives, to enquire into the conduct of the judges of the Supreme Court, relative to their proceedings against Thomas Paffmore.

Ordered to be laid on the table,

In the enfuing feffion of the Legislature, on the 17th of January, 1804, Mr. John Boyd, from the committee appointed to examine the Journals and files of the late Houfe, and report the unfinished bufinefs, reported the

Resolution founded on the memorial of Thomas Paff more, of Philadelphia, complaining of the conduct of Edward Shippen, Jafper Yeates, and Thomas Smith, Judges of the Supreme Court,"

This report was referred to the committee of grievances,

On the 13th of March following, Mr. J. Goodman, from the committee of grievances, reported as follows:

That after having examined the witneffes produced to them, and carefully taken down the teftimony, and gives the fubject a due confideration, the following facts appear to be fubftantiated, viz.

That an amicable fuit was entered into between Tho. mas Paffmore, plaintiff, and Pettit and Bayard, defendants, on the 13th day of July, 1802, on a contested policy of infurance, both parties having chofen their man, as referees, with power in cafe of difagreement to choose an umpire, who, not agreeing, chofe William Haflet, um pire, who, with one of the referees, on the fixth day of Au guft, 1802, reported an award in favour of Thomas Paffmore, plaintiff, of four hundred and ninety dollars, with intereft, which award was returned into the office of the Prothonotary of the Supreme Court, on the fixth day of Auguft, 1802, on which judgment was entered on the fixth day of the fame month, against Pettit and Bayard, defendants; and, that on the eighteenth of the fame month, execution was iffued, and a levy made by the sheriff on the goods of Andrew Bayard, on the fame day; all which will appear by certified records, herewith reported.

That on the fourth day of September following, excep tions were filed by Andrew Bayard, against the decifion of the referees; that on the eighth day of the fame month, a paper was posted up in the coffee houfe, iu Philadelphia, by the faid Thomas Paffmore, faid to be a libel against Pettit and Bayard, in the words following: The fubfcriber publicly declares, that Pettit and Bayard, of this city, merchants and quibling underwriters, has bafely kept from the fubferiber, for nine months, about five hundred dollars, and that Andrew Bayard, the partner of Andrew Pettit, did on the third or fourth inftant, go before John Infkeep, Efq. alderman, and fwore to that which was not true, by which the faid Pettit and Bayard, is enabled to keep the fubfcriber out of his money for about three months longer, and the faid Bayard, has meanly attempted to prevent others from paying the fubfcriber about two thousand five hundred dollars, but in this mean dirty action he was disappointed in, I therefore do publicly declare Andrew Bayard, a lier, a rafchal, and a coward; and do offer two and a half per cent to any good perfon or persons, to infure the folvency of Pettit and Bayard, for four months from this date.'

THOMAS PASSMORE.

Philadelphia, Sept. 8th, 1802.

For which libel, the faid Thomas Paffmore, was committed to the cuftody of the fheriff of Philadelphia county, in the debtors apartment of the common goal, for the space of thirty days, and was fined fifty dollars, to the commonwealth, for an alledged contempt of Court. It appears, moreover, from the evidence, that the ufual courfe of pro⚫ceeding was, in the firft inftance, departed from by the Court. Immediate fentence, or atonement to Mr. Bayard, was the only alternative; but on the suggestion of Mr. Paffmore's counfel, interrogatories in the ufual manner, were filed by the counfel of Pettit and Bayard; which interogatories, together with the answers thereto, (which anfwers in the opinion of your cominittee were fatisfactory, and did purge the contempt, if a contempt had been committed) are here with reported.

Although the faid Thomas Paffmore, had complied with every request of the faid Court, except that he refused to make an apology to Andrew Bayard; he was, on the twenty-eighth day of December, 1802, fined and imprisoned by the faid Court, as aforefaid.

Your committee, after a muture confideration of the fubject, conceive themfelves juftified in the opinion, that

the judges have exercised a ftretch of power in this cafe, hot warranted by the conftitution and laws of our coun try; and that if fuch an abuse of power be tolerated, and quietly acquiefced in by the Legislature, there is reafon to fear that the fafety and perfonal liberty of the citizen, will be annihilated.

That, however willing the committee may be to concede, that every Court of Justice neceffarily poffefs the power of punishing contempts committed in their prefence and whilft in feffion; yet they are of opinion, that offences, fuch as charged against the faid Thomas Paffmore, if viewed under all the variety of circumftances, connected with the cafe, do not amount to a contempt of Court, and confequently do not warrant the unufual feverity of proceeding, which was had against bim.

1. Because the publication did not reflect on the judges in their judicial capacity, nor perfonal character.

2. Because there was no direct allufion in the paper called a libel, to any caufe pending before the Court.

3. Because it appears from the record, that the faid Thomas Paffmore was warranted in the conclufion, that the fuit between him and Pettit and Bayard, was then ended, judgment having been entered, and execution iffued. This opinion is confirmed, because the judgment was not fet afide, until after the term of his imprisonment had expired, and after his application to the Legislature, for the impeachment of the judges.

4. Because it appears from the evidence, that the Court were fatisfied with the anfwers of Thomas Paffmore, to the interrogatories, fo far as refpected the alleged contempt. against themselves.

5. Because it appears that the punishment was inflicted, not because he had committed a contempt of Court, but becaufe he would not apologize, or make atonement to Mr. Andrew Bayard, as the Court had expected.

Upon the whole, your committee cannot but reiterate their opinion, that the proceeding of the Judges in this cafe, is unprecedented in the annals of jurifprudence, and that nothing fimilar to it is to be found in any other country, where law, and not the arbitrary will of the magiftrate, is the governing principle; therefore, in order to afford the faid Thomas Paffimore, the remedy pointed out

by the conftitution, for the injury complained of; and alfo to put those high and dignified officers to their trial, and afford them an opportunity of justifying their conduct to the world, if in their power fo to do, offer for the adop tion of the houfe, the following refolution, viz.

Resolved, That a committee be appointed to draught. articles of impeachment against the faid Edward Shippen, Efq. Chief Juftice of the Supreme Court of Pennfylvania, and Jafper Yeates, and Thomas Smith, Efquires, Judges of the faid Court, for a high misdemeanor in their official capacity, by arbitrarily and unconftitutionally fining and imprifoning Thomas Paffmore.

Monday, the 19th inft. was affigned for the fecond reading of this report of the committee of grievances, and it was made the order for that day.

On the morning of the 19th, agreeably to the order of the day, the Houfe proceeded to confider the report, and after fome debate, adjourned until three o'clock in the afternoon, when the confideration was refumed.

A motion was made by Mr. Porter and Mr. Franklin, to postpone the fame, for the purpofe of introducing the following as a fubftitute to the report of the committee of grievances

"Resolved, That the charges exhibited by Thomas Pafimore, against the Juftices of the Supreme Court, and the teftimony adduced in fupport of faid charges, do not afford fufficient ground for this Houfe to proceed by impeachment."

On the morning of the 20th, the fabftitute was by leave withdrawn. The Houfe again refumed the confideration of the report of the committee of grievances, and after confiderable debate, adjourned until three o'clock P. M. when after fome further debate, the question was put "Will the House agree to the resolution ?"- [That is, the refolution of the report of the committee of grievances.]

The Yeas and Nays were called for by Mr. Franklin and Mr. Trevor, and were as follow:

YEAS.-Mers. Adams, Adcock, Agnew, Alfhouse, Alter, Acker, Boileau, Boyd, Brifben, Bucher, Clark, Darlington, M. Davis, T. Davis, Dechart, Engle, Fenton, Ferree, Fulton, Giffen, Goodman, Grofs, Harrison, Hol

C