tute. Because we think it was neither the effect nor the intention of that statute to enable any order to be made which should diminish or abridge the common law duties of a constable, or take away any responsibility where it has attached by the common law. There is nothing in the act which points to such an alteration in the liability of a constable. It was an act passed, as appears by the preamble, to establish a new and more effective system for the appointment and regulation of constables throughout Ireland. The 12th section authorises the inspectors appointed under it, with the consent and approbation of the lord-lieutenant, to frame rules, orders, and regulations, "for the conduct and proceedings of the constables," from time to time. To direct the constables in the due and orderly performance of their duty, to point out to them the manner in which it would be best performed, not to alter the limits and extent of their duty, was the intention of the legislature. And the direction given in section 6, which applies, if any does, to this case, does not in any manner militate against this construction; for, it says no more than the law would have itself said, in directing them not voluntarily to mix themselves up with the execution of civil process. But, if the duty of aiding the sheriff in the posse comitatûs, or the duty of aiding the commissioners in the execution of a writ of rebellion, is cast upon them as liege subjects not less than as constables, there is nothing in that order which can have the effect of absolving them, nor is any authority given by the statute to absolve them, from the performance of such their common law duty. 1838. MILLER v. KNOX. 15 WILLIAMS, J.-My lords, the fifth question proposed Fifth question. by your lordships, to which alone it is necessary that I should address myself, is, "whether, supposing a stranger to the proceedings in the cause, but liable to be called upon to assist in the execution of a writ of rebellion, be 1838. MILLER บ. ΚΝΟΧ. regularly called upon to render such assistance, and decline to do so, the court out of which such writ issued can commit such person as guilty of a contempt of such court;" or, in other words, whether a writ of attachment may issue against such person: and I understand the question to be confined to the authority and competence of the court, and to that only. Now, that the superior courts of record, especially, have been in the habit of issuing such process, is past a doubt. No question of that kind was attempted to be raised at the bar. Of its antiquity also, I presume, there is as little doubt. "The issuing of attachments by the supreme courts of Westminster Hall for contempts out of court," (as is observed by Lord Chief Justice Wilmot in his prepared but not delivered judgment, in the case of Rex v. Almon, Wilmot's Notes, 254), stands upon the same immemorial usage as supports the whole fabric of the common law. It is as much the lex terræ, and within the exception of Magna Charta, as the issuing any other legal process whatsoever." Again, I shall not waste your lordships' time by discussing whether the court of Exchequer in Ireland stands upon the same footing as those before alluded to. This, also, was not disputed in argument at the bar. Lastly, I shall assume that the writ of rebellion was process lawfully issuing in the king's name by the authority of the court; because, although much observation and criticism were employed upon the nature and quality of the writ, that was not denied. The question, therefore, resolves itself into this point, whether, in the case supposed, an attachment can legally issue; or whether indictment be not the appropriate and only remedy. And, in considering this point, in the absence of any precise authority, we are driven (as in so many instances must be the case,) to analogy; and therein to ascertain whether this process has been resorted to on occasions not distinguishable from the present; because this ancient principle, as in the language of a late Chief Justice I have described it to be, has not been a barren theory, but has been frequently and variously resorted to. In Viner's Abridgment, title Contempt, (A.), it is defined or described to be, "a disobedience to the court, or an opposing or a despising the authority, justice, or dignity thereof. It commonly consists in a party's doing otherwise than he is enjoined to do, or not doing what he is commanded or required, by the process, order, or decree of the court." Hawkins, in book 2. chapter 22, "Of Attachment," observes, that "it is properly grantable in cases of contempt, against which, for the most part, all courts of record generally, but more especially those of Westminster Hall, and above all, the court of King's Bench, may proceed in a summary manner according to their discretion." Now, I would by no means intimate an opinion that the learned writer, by the latter general expressions, meant to assert that the power of the courts is perfectly arbitrary and indefinite; but I do think he must be understood as describing this power not to be precisely limited and fixed, but that it may be extended to new cases as they arise, provided they be within the principle of those in which the power has been decided to exist. The subject is pursued with much minuteness in the book I have referred to, though it is truly remarked, "that all the particular instances of contempts, it would be endless to enumerate." With one class, however, and that not a small one, I shall not trouble your lordships. I allude to attachments against sheriffs, gaolers, attornies, and others, as to whom a distinction may be drawn-that, inasmuch as they are to be considered ministers or servants of the court, they may especially be subjected to an immediate and summary control. But, after examining cases of that description, Hawkins comes to consider "where persons (generally) 1838. MILLER บ. KNOX. 1838. MILLER v. ΚΝΟΧ. are punishable in this manner for contempt of the king's writs;" and, upon this point, there is the following passage: "It seems that it may reasonably be argued, that all such writs, being in the king's name, and importing some lawful command or prohibition from him, which every subject is in duty bound to obey, every disobedience of them, being a contempt of the king's authority, is in strictness punishable in the manner above mentioned, if the court in its discretion" (discretion again) "shall think fit so to proceed: yet it doth not seem to be usual for the court to proceed in this manner for a bare non-feasance in not performing the command of the first writ in any case whatsoever." I have, of course, given the passage entire: the distinction, however, contained in the last clause does not seem to respect the power of the court so much as the ordinary course and practice; whereas I consider my present concern to be with what the courts can "in strictness' do, and not what it may be usual or expedient, and so forth, for them to do. And, even understanding the latter clause in the sense above attributed to it, I think it will presently appear to be not quite consistent with the author's usual accuracy. I shall now advert to some of the cases in which this process has issued. In an Anonymous case, 1 Salk. 84, an attachment was granted at once against a party upon whom a rule of court was served; upon which occasion he uttered some vulgar expressions concerning it. I am aware that an attempt may be made to explain this case, as coming under the acknowledged head of contempt-" speaking contemptuous words of the court;" which, being considered to be an impeachment of and an attack upon its authority, is supposed to require immediate interposition and correction. And, supposing this to be the true solution of the principle upon which the attachment was granted, it must be admitted that the case has less bearing upon the present than if the real ground for holding it to be a contempt was the disobedience of the order or rule of court. But, however that may be, that there are cases in abundance which rest absolutely and exclusively upon the latter principle, will be seen presently. In this case, however, which is constantly referred to, and its legality, I believe, never questioned, the attachment was awarded against the party, unheard, as I have before noticed. In a very recent case, Gobbey v. Dewes, 10 Bing. 112, 3 M. & Sc. 556, the court of Common Pleas granted an attachment in the first instance, against certain persons concerned in a rescue, although the return stated that the rescue had been out of the custody of a bailiff, and not of the sheriff himself-the application being founded solely upon that return. What weighs with me, however, most strongly, is, the long continued and undoubted practice, of issuing attachments for disobedience of writs of subpoena, whether comming from the crown office or taken out, as it is of course in a civil suit. And yet it is undeniable, that, in the latter instance, it is merely a private remedy resorted to by a private party to enforce or resist a claim wholly unconnected with any public concern or interest whatsoever. And, moreover, this summary interference might appear, and has actually been urged to be, the less requisite, and therefore by more objectionable, because there is another remedy, by express statutory provision, for the party aggrieved by the non-compliance with the exigency of the writ. But this notwithstanding, against persons not officers or ministers of the courts (mere private parties), attachments have been awarded in more instances than it would be possible to enumerate, and from which I must make a selection. In the case of Wyatt v. Wingford, 2 Ld. Raym. 1528, an attachment was moved for against a witness for not attending at the Assizes to give evidence in pursuance to a subpoena cause was shewn, and it was urged that the party had his remedy (before adverted to) by action on 1838. MILLER บ. KNOX. |