The reader will observe in page 327, that Mr. Boileau refere to the opinion of Mr. Lewis, as contained in a letter from that gentleman t Mr. Passmore. The reporter had not a copy of this letter at the time when Mr. Boileau's speech was put to press, It was afterwards procured, and will be found as read by Mr. Ingersoli in fuages 391, 2, 3,

or

EDWARD SHIPPEN, Esq. Chief Justice,

AND

JASPER YEATES, & THOMAS SMITH, ESQR's. Assistant Justices of the Supreme Court of Pennsylvania,

ON AN IMPEACHMENT

BEFORE THE SENATE OF THE COMMONWEALTH:

JANUARY, 1805.

INTRODUCTION.

N the 28th of February, 1803, in the Houfe of Representatives of the commonwealth of Pennsylvania, Mr. Ferguson prefented the following memorial, figned by Thomas Pallmore, of the city of Philadelphia.

To the HONORABLE the HOUSE of REPRESENTATIVES of the Commonwealth of Pennsylvania.

The memorial of Thomas Passmore, of the city of Phi ladelphia,

RESPECTFULLY SHEWETH,

That your memorialist conceives it to be the undoubted and most invaluable right of every free citizen of thisTM Commonwealth, to addrefs your honorable body, when he has unfortunately fuftained injuries of fuch a description, as you, and you only, are properly authorized to redress; and that it is more especially the bounden duty of any individual, who seriously apprehends the conftitutional and legal exercife of Judicial authority towards himself, to have been manifeftly exceeded, to prefent for your confideration a cafe, pregnant with fo, many alarming confequences to the rights and liberties of the people: Under thefe impreffions, your memorialist respectfully folicits. your attention to a recent decifion of the honorable Edward Shippen, Chief Justice, and Jasper Yeats and Themas Smith, Efquires, Judges of the Supreme Court of this ftate, in which, without the opportunity of defending him

B

felf before a jury of his peers, for a conftructive and in plied contempt, not occurring in the view of the Court, nor relating to any cause which could be confidered as pending therein, he was torn from his fan.ily and business, and ignominiously fentenced to a clofe confinement for thirty days, and the payment of a fine of fifty dollars, and this too after he had fubmitted to the inquifitorial proceeding of answering fully to written interrogatories.

The circumstances of the cafe, were as follows: Meffrs Pettit and Bayard, of the city of Philadelphia, merchants, were, with feveral other perfons, underwriters upon a policy of infurance on a veffel of your memorialist. A lofs happened, and the underwriters were applied to for the amount of their respective engagements. The gen tlemen just named, were the only perfons who at first made any difficulty on the fubje&t; but, in confequence of their refufal, the other underwriters alfo declined payment, and your memorialist, to his great injury, was kept out of a large fum of money juftly due to him. At length, however, Meffrs Pettit and Bayard, agreed to enter into an amicable reference under a rule of Court with your memorialist, and the other underwriters followed their example; two referees were chofen, and according to the previous agreement of all parties, called to their affiftance a third referee, the mutual allegations of both parties were fully and fairly heard, and an award made in favor of your memorialift-the faid award was returned into the Prothonotaries office, and agreeably to the terms of the reference, a judgment was entered thereon; notice of the fame was given to Meffrs Pettit and Bayard, and the other underwriters, all of whom, except faid Pettit and Bayard, acquiefced, and paid to your memorialift the fums for which they were refpectively bound; the period allowed by the rules and practice of the Court to a diffatisfied party to file exceptions, elapfed, and an execution was iffued against them; after this, however, Mr. Andrew Bayard filed exceptions to the report of the referees which your memorialit was informed by his Counsel, were out of time, and therefore would not be received by the Court but they had the effect of occafioning a confiderable delay in the recovery of the money. Smarting under a sense of the injury done him by this procedure on the part of Mr. Bayard, your memorialist in the fervor of momentary refentment, wrote a paper, expreffive of his feelings, and put the fame up at the merchant's coffee house, on a board to which advertisements are generally attached, and which fituation was pointed out by the keeper of the faid coffee houfe, as a proper one for the purpose. It was, however,

not fuffered to remain there one minute, the perfon just mentioned taking it down before it was read by any other perfon but himself, and afterwards delivering it to Mr. Bayard, and, fubfequent publicity, if fuch it obtained, is afcribable therefore to Mr. Bayard, and not to your me morialist. This occurrence took place on the eighth of September laft. At the following Term,the counsel of Mr. Bayard, applied to the Supreme Court, and obtained a rule on your memorialist, to fhew caufe why an attachment fhould not iffue against him for a contempt, and after ar gument on the eighth of December laft, an attachment was awarded. On the fixteenth of the fame month, your memorialift was ordered by faid Court to answer interro, gatories; to which order he, without hefitation, yielded obedience. In those answers, your memorialist stated, that to the best of his judgment and belief, at the time of write ing the above mentioned paper, there was no fuit depending between him, and Pettit and Bayard; for, tha: although fuch an action had been instituted between him and Pettit & Bayard, and referred under an amicable agreement; yet,before the time alluded to, a report had been made in favor of your memorialift, and the fuit determined by a judgment entered thereupon, that altho' exceptions had been afterwards filed, your memorialist understood and believed it to be a rule of the Supreme Court, that where by the tenour of the fubmiffion, the report of the referees is to be made into office; if fuch report is made, notice thereof given to the party against whom it operates,and no exceptions filed within four days thereafter, the fame becomes abfolete & unavoidble; that fuch was the impreffion on the mind of your memotialist, at the time of the commiffion of the alledged contempts; and that he was the more confirmed therein by the acquiefcence of the other underwriters; he alfo mention;ed as has been herein before ftated, that the paper, containing the offenfive expreffions, was immediately after be ing put up, torn down by the keeper of the coffee-houfe before it had been read: In the doing of which, he declar ed he had not the most distant intention to prejudice the public mind in his favor, or to treat with difrefpect the Judicial authority of his country, for which he had always entertained the utmost refpect; and that his conduct was merely the refult of the heat and paffion of the moment, notwithstanding which, declarations on his part, thus unreluctantly and refpectfully made, under the folemnities of an oath, the fevere and difgraceful punishment was inflict, ed upon, and fuffered by your memorialist; that in the courfe of the difcuffion, the counfel of your memorialist was interrupted, and fo far difcouraged by the Court, as to leave the difcuffion of the queflion on his part unfinished. Your memorialist himself was refufed to be heard, and in

ftead of confidering the offence as committed against the Juftice of the country, he was repeatedly told by the Court, that a perfonal apology to Mr. Bayard, would mitigate, if not prevent,the intended punishment; thus clear y evincing that the Court confidered the injury of a persona nas ture, not affecting the fair adminiftration of public justice, while at the fame time they refufed to leave the perfon confidering himself injured to his action at law, as your memorialift humbly apprehends of right they ought to have done. Your memorialift fubmits to your Honorable Body, that in this tranfaction, the above named Judges have violated the duties, and exceeded the powers of the high station delegated to them; that even in the annals of British jurifprudence, no cafe can be found where fuch an act has been confidered a contempt; that the paper referred to, did not relate to a fuit depending for trial, fo as improperly to bias the minds of the public, nor did it in the most diftant manner, reflect upon the Court or any of its officers, that in its moft aggravated colours, it could have been no more than a perfonal affront to Mr. Bayard; and, even that was prevented, by the interference of a third perfon; that should an unprecedented rigor of con. ftruction be allowed to exact the ci cumftance into a conftructive or implied contempt of the Court, even the ftricteft principles of common law would have abfolved your memorialift, when he had purged fuch contempt by full and fatisfactory anfwers to written interrogatories: And finally, he fubmits it to your better judgment, whether the proceedings against him do not involve a manifeft infraction of the bill of rights, and whether these fummary judicial proceedings for conftru&tive offences, if unnoticed by the Legislature, may not pave the way for the destruction of the ineftimable right of trial by jury.

Your memorialift therefore prays, that you would be pleafed to take the above circumftances into confideration, and enquire whether the above named JUDGES have not made themfelves the objects of IMPEACHMENT. THOMAS PASSMORE.

(Signed)

Philadelphia, February 26, 1805.

4

The memorial was read, and referred to Meffrs. H. Ferguson, F. Smith, D. Montgomery, D. Mitchel, J.. M.Mafters, J. Rofs, and Ifaiah Davis, to confider and report thereon. This committee, on the 9th of March, 1803, made the following report :—

That they have examined the petition and documents accompanying it, and heard the allegations of the com