has no more to do with giving courts of authority, is coeval with their first foun- proceeding by attachment is an invasion upon the ancient simplicity of the law; that it took its rise from the statute of Westminster, ch. 2.; and Gilbert's History of the practice of the court of Com-minster hall have of vindicating their own mon Pleas, p. 20. in the first edition, is cited to prove that position. And it is said, that act only applies to persons resisting process; and though this mode of proceeding is very proper to remove obstructions to the execution of process, or to any contumelious treatment of it, or to any contempt to the authority of the court, yet that papers reflecting merely upon the qualities of judges themselves, are not the proper objects of an attachment; that judges have proper remedies to recover a satisfaction for such reflections, by actions of scandalum magnatum; and that in the case of a peer, the House of Lords may be applied to for a breach of privilege: That such libellers may be brought to punishmeat by indictment or information; that there are but few instances of this sort upon libels on courts or judges; that the Common Pleas lately refused to do it; that libels of this kind have been prosecuted by actions and indictment; and that attachments ought not to be extended to libels of this nature, because judges would be determining in their own cause; and that it is more proper for a jury to determine quo animo such libels were published. "As to the origin of attachments, I think they did not take their rise from the statute of Westminster, ch. 2.; the passage out of Gilbert does not prove it; but he only says, "the origin of commitments "for contempt, seems' to be derived from "this statute;" but read the paragraph through, the end contradicts the seeming' mentioned in the beginning of it; and shews, that it was a part of the law of the land to commit for contempt, confirmed by this statute. And indeed when that act of parliament is read, it is impossible to draw the commencement of such a proceeding out of it; it empowers the sheriff to imprison persons resisting process, but resignation of the then attorney general; but after the death of this eminent and very learned chief justice, was found in his own hand-writing among his papers by his son, who published it in Memoirs of his Life, page 243. The occasion of it was a motion in the court of King's bench, for an attachment against Mr. Almon, for a contempt in publishing a libel upon the court, and upon the chief justice. "I have examined very carefully to see if I could find out any vestigates or traces of its introduction, but can find none; it is as ancient as any other part of the common law; there is no priority or posteriority to be discovered about it, and therefore cannot be said to invade the common law, but to act in alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society. And though I do not mean to compare and contrast attachments with trials by jury, yet truth compels me to say, that the mode of proceeding by attachment stands upon the very same foundation and basis as trials by jury do, immemorial usage and practice; it is a constitutional remedy in particular cases; and the judges in those cases are as much bound to give an activity to this part of the law, as to any other part of it. Indeed it is admitted, that attachments are very pro perly granted for resistance of process, or a contumelious treatment of it, or any violence or abuse of the ministers or others employed to execute it. But it is said that the courts of justice in those cases is obstructed, and the obstruction must be instantly removed; that there is no such necessity in the case of libels upon courts or judges, which may wait for the ordinary method of prosecution, without any inconvenience whatsoever. But where the nature of the offence of libelling judges for what they do in their judicial capacities, either in court or out of court, comes to be considered, it does, in my opinion, become more proper for an attachment than any other case whatsoever. "By our constitution, the king is the fountain of every species of justice which is administered in this kingdom, 12 Co. | coolly and deliberately printing the most 25. The king is de jure to distribute jus- virulent and malignant scandal which tice to all his subjects; and because he fancy could suggest upon the judges themcannot do it himself to all persons, he de-selves. It seems to be material to fix the legates his power to his judges, who have ideas of the words "authority" and the custody and guard of the king's oath," contempt of the court," to speak with and sit in the seat of the king" concern- precision upon the question. ing his justice." "The trial by jury is one part of that "The arraignment of the justice of the system, the punishing contempts of the judges is arraigning the king's justice; it court by attachment is another: we must is an impeachment of his wisdom and not confound the modes of proceeding, and goodness in the choice of his judges, and try contempts by juries, and murders by excites in the mind of the people a gene- attachment; we must give that energy to ral dissatisfaction with all judicial deter- each which the constitution prescribes. minations, and indisposes their minds to In many cases, we may not see the corresobey them; and whenever mens allegi-pondence and dependance which one part ance to the laws is so fundamentally shaken, it is the most fatal and the most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges, as private individuals, but because they are the channels by which the king's justice is conveyed to the people. To be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open and uninterrupted current, which it has for many ages found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth. "In the moral estimation of the offence, and in every public consequence arising from it, what an infinite disproportion is there between speaking contumelious words of the rules of the court, for which attachments are granted constantly, and of the system has and bears to another; but we must pay that deference to the wisdom of many ages as to presume it. And I am sure it wants no great intuition to see, that trials by juries will be buried in the same grave with the authority of the courts who are to preside over them.". Trinity Term, s Geo. III. Writs of attachment were granted against Staples Steare, John Williams, and John Pridden, for contempt, in publishing the North Briton Extraordinary, No. 4, containing a letter addressed to lord Mansfield, lord chief justice, containing gross reflections on his lordship. They were all examined upon interrogatories, and reported in contempt. And in Michas. Term, 9 Geo. III, Steare was sentenced to be imprisoned three calendar months. PAPERS PRESENTED TO THE HOUSE OF COMMONS RELATING TO AMERICA. -Ordered, by the House of Commons, to be printed, 9th February, 1810.-[No. I.] munications which you represent yourself to have received from different individuals of weight and influence in the American government, respecting the political relations of Great Britain and the United States. DISPATCHES FROM MR. SECRETARY CANNING TO THE HON. DAVID ERSKINE. No. I.-Dispatch from Mr. Secretary Canning, to the hon. D. M. Erskine, dated Foreign-Office, 23d January 1809. SIR; Your Dispatches, from (No. 46,) It must be confessed, that the conciliato (No. 49,) both inclusive, have been re- tory disposition which these individuals ceived, and laid before the King. The describe to you as existing on the part of most serious attention of his Majesty's go- the American administration, does not apvernment has been directed to the import-pear either in the acts of the government, ant matters treated in those Dispatches; or in the debates of Congress. But the and especially to those confidential com- intimations which have been given to you The terms of reparation which Mr. Rose was authorized to propose, were in substance, 1st. A formal disavowal by his Majesty of the act of admiral Berkeley. 2d. The restoration of the men forcibly taken from on board the Chesapeake; reserving to his Majesty the right of claiming, in a regular way, from the American Government, the discharge of such of them as might prove, upon investigation, to be either natural born subjects of his Majesty, or deserters from his Majesty's service. of the difference between the personal | of reparation which his Majesty is now sentiments of Mr. Jefferson, and those of willing to offer. his probable successor in the presidency, with respect to this country, and the hopes which you have been led to entertain, that the beginning of the new presidency may be favourable to a change of policy in America, if opportunity and encouragement for such a change shall be afforded by this country, have induced his Majesty's government to review and reconsider the most important points of disagreement between the two governments; and I have received his Majesty's commands to send you such instructions on these sub--3dly. A pecuniary provision, suitable jects, as must, if the government of the United States be seriously disposed to accommodation, lead to their immediate and satisfactory adjustment. to their respective situations in life, for the widows or orphans of such men (not being natural born subjects of his Majesty, nor deserters from his Majesty's service) as may have been unfortunately killed on board the Chesapeake. In return for these concessions, his Majesty required,-1st. A disavowal on the part of the American Government of the detention, by Commodore Barron, of deserters from his Majesty's service; of his denial of his having such persons on board of the ships under his command, and his refusal to deliver them upon demand. 2dly. A like disavowal of the outrages commit ted on the persons or property of his Majesty's subjects at Norfolk, or elsewhere, in consequence of this affair. An engagement was also to be required, that the American Government should not, in future, countenance any of its agents, civil or military, in encouraging desertion from his Majesty's service. The first of these points is the affair of the Chesapeake. Nothing prevented an amicable conclusion of this discussion by Mr. Rose, except the refusal of the American government to withdraw the Proclation issued on the 2d July 1807, by which the ships of war of Great Britain were interdicted from the harbours of the United States, while those of France continued to be allowed a free resort to them.-The constructions given by Mr. Madison to the Resolution of the committee to whom this consideration of the foreign relations of the United States was referred at the opening of the present session of Congress, undoubtedly goes a considerable way to remove the objection to which the Proclamation was liable. Of the exclusion of the ships of war of both belligerents from the ports of a neutral state, neither belligerent This last point, being, according to the has a right to complain. The partiality statement in your (No. 47,) to be provided of that regulation alone gave to it a for by a special act of Congress, it is not character of hostility.-If therefore the necessary to obtain any specific engageships of war of France shall in point of factment or declaration respecting it; and as have been excluded from the ports of the United States, and such ships of that description as were in those ports at the time of passing the resolution shall have been warned to depart, his Majesty would no longer insist upon the formal recal of the Proclamation as a preliminary of the adjustment of the difference arising from the affair of the Chesapeake.-It is still necessary, however, that either the Proclamation should be withdrawn, or its operation formally declared to be at an end; but it will be sufficient if that withdrawal or declaration is recorded (according to the arrangement which Mr. Madison professed himself ready to adopt) in the same instrument, or at the same time, with the terms it is above all things desirable to simplify as much as possible the conclusion of an arrangement which has been so long pending, as a recurrence to the details of the affair of the Chesapeake, of the causes which led to it, and of the discussions immediately arising out of it, might lead to complicated and fruitless controversy, his Majesty, on his part, would be contented at present to wave any demand for retrospective disavowals on the part of the Government of the United States; that Government being, on the other hand, contented to receive back the men forcibly taken out of the Chesapeake, as the single and sufficient act of reparation. To which, however, his Majesty would still be willing to United States, of a sincere desire to contribute to that object in a manner which should render the continuance of the system adopted by the British government unnecessary, it is thought right that a fair opportunity should be afforded to the American Government to explain its meaning, and to give proof of its sincerity. -The extension of the interdiction of the American harbours to the ships of war of France as well as of Great Britain is, as stated in my other dispatch, an acceptable symptom of a system of impartiality towards both belligerents; the first that has been publicly manifested by the American Government.-The like extension of the Non-importation Act to other belligerents is equally proper in this view. These measures remove those preliminary objections, which must otherwise have precluded any useful or amicable discussion. I have only to add (though I see no ground to apprehend that such a demand is likely to be brought forward) that you are steadily and peremptorily to refuse any demand for any further mark of his Majesty's displeasure to admiral Berkeley, In this state of things it is possible for than that which was in the first instance Great Britain to entertain propositions, manifested, by that officer's immediate re- which, while such manifest partiality was call. You are to open the subject of the shewn to her enemies, were not conChesapeake separately and distinctly:sistent either with her dignity or her inThe manner in which the proposal for the adjustment of that difference may be received will be the best test of the general disposition of the American Government, and will naturally indicate the course to be pursued in respect to the further instructions which I shall proceed to communicate to you in another dispatch. I am, &c. No. II.-Dispatch from Mr. Secretary Can- terests. From the report of your conversations with Mr. Madison, Mr. Galatin, and Mr. Smith, it appears,-1st. That the American Government is prepared, in the event of his Majesty's consenting to withdraw the Orders in Council of January and November 1807, to withdraw contemporaneously on its part, the interdiction of its harbours to ships of war, and all non-intercourse and non-importation acts so far as respects Great Britain, leaving them in force with respect to France, and the powers which adopt or act under her Sir; If there really exists in those indi- decrces. 2dly. What is of the utmost viduals who are to have a leading share in importance, as precluding a new source of the new administration of the United misunderstanding which might arise after States, that disposition to come to a com- the adjustment of the other questions, that plete and cordial understanding with Great America is willing to renounce during the Britain, of which you have received from present war, the pretension of carrying on them such positive assurances; in meet-in time of war, all trade with the enemies ing that disposition it would be useless and unprofitable to recur to a recapitulation of the causes from which the differences between the two governments have arisen, or of the arguments already so often repeated in support of that system of retaliation to which his Majesty has unwillingly had recourse. That system his Majesty must unquestionably continue to maintain, unless the object of it can be otherwise accomplished. But after a profession on the part of so many of the leading members of the government of the colonies, from which she was excluded during peace. 3dly. Great Britain, for the purpose of securing the operation of the Embargo, and of the bond fide intention of America to prevent her citizens from trading with France, and the powers adopting and acting under the French decrees, is to be considered as being at li berty to capture all such American vessels as may be found attempting to trade with the ports of any of those powers; without which security for the observance of the Embargo, the raising it nominally with respect to Great Britain alone, would in fact raise it with respect to all the world. circumstances herein described, to take such reciprocal engagement on his Majes ty's behalf. I am, &c. GEO. CANNING. No. III.-Dispatch from Mr. Secretary Canning, to Hon. D. Erskine, dated Foreign Office, January 23d, 1809. (No. 5.) Sir; In addition to what I have stated in my preceding Dispatch of this date, I think it right to assure you, that the inten tion of sending a minister to America as therein announced, for the purpose of concluding a Treaty with the United States, has not arisen from any doubt of your executing the commission, if it had been entrusted to you, with zeal and with ability; but it is presumed, that after the On these conditions his Majesty would consent to withdraw the Orders in Council of January and November 1807, so far as respects America.-As the first and second of these conditions are the suggestions of the persons in authority in America, to you, and as Mr. Pinckney has recently (but for the first time) expressed to me his opinion that there will be no indisposition on the part of his Government to the enforcement, by the naval power of Great Britain, of the regulations of America with respect to France, and the countries to which those regulations continue to apply; but that his Government was itself aware, that without such enforcement, those regulations must be altogether nu-long suspension of friendly intercourse gatory; I flatter myself that there will be no difficulty in obtaining a distinct and official recognition of these conditions from the American Government. For this purpose you are at liberty to communicate this Dispatch in extenso to the American Secretary of State.-Upon receiving, through you, on the part of the American Government, a distinct and official recognition of the three above-mentioned conditions, his Majesty will lose no time in sending to America a minister fully empowered to consign them to a formal and regular treaty. with the United States, a minister sent for No. IV.-Dispatch from Mr. Secretary Can- Sir; In your Dispatch (No. 47.) among As however it is possible that the delay the other important suggestions which you which must intervene before the actual state yourself to have received from Mr. conclusion of a Treaty, may appear to the Galatin, is one, the purport of which is, American Government to deprive this ar- that supposing all the existing differences rangement of part of its benefits, I am to between the two countries to be done authorize you, if the American Govern- away, the system of their commercial inment should be desirous of acting upon tercourse might be better regulated by the the agreement before it is reduced into a short and simple agreement, either to adregular form, either by the immediate re- mit each other's productions on equal and peal of the Embargo and the other acts in reciprocal duties, or reciprocally to place question, or by engaging to repeal them each on the footing of the most favoured on a particular day, to assure the Ameri- nation, than by any more minute and comcan Government of his Majesty's readiness plicated provisions.-The sentiments upon to meet such a disposition in the manner which this suggestion appears to be foundbest calculated to give it immediate effect. ed, are so much in unison with those enUpon the receipt here of an official note, tertained here, that I am to direct you, in containing an engagement for the adop- the event of the subjects mentioned in my tion, by the American Government, of the Dispatches being put in a train of adjustthree conditions above specified, his Ma- ment, to endeavour to obtain from the jesty will be prepared on the faith of such American Government, some more precise engagement, either immediately (if the and authentic exposition of their views repeal shall have been immediate in upon this subject, to be transmitted here America) or on any day specified by the for consideration, if possible, at the same American Government for that repeal, re-time with their answers upon the subject ciprocally to recall the Orders in Council, without waiting for the conclusion of a Treaty. And you are authorized in the of those other Dispatches.-It will not, however, be desirable that those answers should be delayed for this purpose.-Bur |