1838. MILLER 2. ΚΝΟΧ. minal proceedings. There may, indeed, be an attachment against persons for not returning a writ of mandamus directed to many persons who are not a corporation, and who may not be designated by name; but then it is directed to a class of persons; and besides, such an attachment could only be on the party refusing to come into court and do the thing required, and not for a bye-gone thing. It may be said, that, though the commission of rebellion does not mention any body by name in the clause of aid and assistance, yet that, when the commission of rebellion is properly notified to any individual, it is to be considered in the same light as if his name had been inserted in it : but I know of no instance where that has been so held; and I think that sort of virtual and inferential direction to the party is not to be considered in the same light as if he had been named in the commission; and that it does not make him guilty of a contempt of the court, and render him liable to a commitment on a summary proceeding. I must now notice a proceeding under which I understand attachments have been granted in cases something resembling the present: and that is, under writs of assistance granted to persons employed in the collection of the revenue of the crown. Writs of assistance are for some purposes of very antient date; but, as to those for collecting the revenue, I cannot find any trace of them before the 13 & 14 Car. 2, c. 40, s. 5, which authorises them to be granted under the seal of the court of Exchequer, to take a constable, headborough, or other public officer, to do various acts specified: and the same powers have been continued in various subsequent acts of parliament, the last of which appears to be the 3 & 4 Will. 4, c. 53, ss. 38, 39. There are instances of informations filed in the crown office by the Attorney-General, against persons for refussing to aid and assist under a writ of assistance; and there are also, I understand, some instances of attachments being granted by the court of Exchequer against persons for refusing to aid and assist the revenue officers. I have not been able to learn whether these instances have been numerous nor whether the question was discussed in the court of Exchequer; nor whether they were granted on the ground of its being a contempt of the crown in matter relating to the collection of the revenue; which it might be said was as much allowable as in cases where parties refused to pay obedience to the warrants of the judges of the King's Bench in criminal proceedings. Upon the whole consideration of the fifth question, I come to the conclusion that it is not a contempt of the court upon which the party can be committed. PARK, J., gave no detailed opinion, but simply expressed his entire concurrence in the opinion about to be given by Tindal, C. J., as to the fifth question, as well as in that already given by that learned judge upon the first four questions. TINDAL, C. J., now proceeded to give his opinion on the fifth question proposed by the House: 1838. MILLER v. KNOX. In answer to the last question above proposed to her Fifth question. majesty's judges, and upon which I regret to find that two of my brethren differ from me, the opinion at which I have arrived, upon the best consideration I can bring to the subject, is this—that, if a stranger to the proceedings in the cause, being in other respects liable to be called upon to assist in the execution of a writ of rebellion, has been regularly called upon to render such assistance, and refused or declined so to do, the court out of which such writ issued may proceed against him by attachment for a contempt of the court; and, if no sufficient answer or excuse be shewn on his part, he may be committed for such contempt; and I ground this opinion upon the consideration that the proceeding by attachment is a legal and constitutional mode of punishing persons guilty of contempts against the au 1838. MILLER บ. KNOX, thority of the superior courts of law; and that the disobedience of the mandatory part of this writ by a person who has been duly made acquainted with its exigency, and required to assist, and has not at the time a legal excuse for refusing or declining to assist, is a denial of the authority, and therefore a contempt of court. That there must exist some mode of enforcing the mandatory part of this writ requiring from strangers aid and assistance in the execution thereof, is obvious, unless such mandate, which has been inserted in the writ from the earliest times, and has been continued without interruption down to the present, is to be regarded as a mere formula of useless words, or an idle and empty threat; and, therefore, the great question that has been argued at your lordships' bar has been, not whether the court has the power to issue the mandate, but as to the mode of enforcing it by law; the plaintiff in error contending that the course to be pursued against such as refuse and neglect to obey its authority, is, by indictment, and indictment only; the defendant in error insisting, on the other hand, that, to proceed against such as refuse obedience to its command by attachment for contempt of the court out of which the process issues, is a course sanctioned by law. That the superior courts have the power of issuing attachments for the purpose of vindicating their own authority, and punishing contempts committed against them, is not denied. It was admitted, in the course of the argument, that attachments may properly issue against those who actually resist the process of the court, who treat it with contumely, or who commit any act of violence or insult against the ministers of the court employed in executing such process; such acts are universally allowed to be properly punishable as contempts of the court, as they amount in effect to an obstruction of the course of justice, and require, upon that account, a more speedy punishment than can be obtained by recourse to indict ment. Indeed, it is difficult, and, so far as I have been able to discover, impracticable, to find the period of time when proceedings by attachment were first introduced; such course of proceeding must of necessity have been coeval with the institution of courts themselves; since, without that speedy remedy, they could never either have acquired or sustained that dignity and authority in the eyes of the people which is essential for the performance of the duties with which they are entrusted. It was stated, indeed, in the course of the argument, that attachments for contempts owe their origin to the statute of Westminster 2, c. 39; and for this the authority of Chief Baron Gilbert has been cited in his History of the Common Pleas, p. 25. Yet, upon an accurate consideration of that passage in Gilbert, and of the statute itself, it appears that neither will support such a proposition. In the passage referred to, the Chief Baron lays it down that "the original of commitment for contempt seems to be derived from this statute, for, since the sheriff was to imprison those that resisted the process, the judges that awarded such process must have the same authority to vindicate it; hence, if any one offers any contempt to the process, either by word or deed, he is subject to commitment during pleasure, viz. à quâ non deliberetur sine speciali præcepto Domini Regis; so that, notwithstanding the statute of Magna Charta, that none are to be imprisoned nisi per legale judicium parium suorum, vel per legem terræ, this is one part of the law of the land to commit for contempts, and is confirmed by this statute." Now, the very language of Chief Baron Gilbert in the latter part of the clause is at variance with the first, viz. that it is confirmed by the statute, not created by it; and the language of the statute of Westminster itself imports that the writ of attachment was not then for the first time introduced; the statute enacting, "that, if the sheriff, when he cometh, do find resistance, he shall certify to the court 1838. MILLER V. KNOX. As to the origin of attachments for contempt. 1838. MILLER บ. KNOX. As to the mode of proceeding for a refusal to aid in the execution of an ordinary writ. the names of the resisters, aiders, consenters, commanders, and favourers; and by a writ judicial, they shall be attached by their bodies to appear at the king's court; and, if they be convict of such resistance, they shall be punished at the king's pleasure:" words which are consistent rather with the attachment being a mode of proceeding previously known and practised in the courts, and directed by the statute to be applied to this particular case, than with the institution of a proceeding altogether unheard of in the courts before that time. And the authority of the Year Book, 3 Hen. 7, 1 (which has been before referred to), is express to the point, that the statute Westminster 2, c. 39, was not introductory of a new law against resisters of the sheriff, but only confirmatory of the common law. That an attachment is a proceeding which has existed time out of mind against persons guilty of a contempt of court, cannot therefore be doubted; and the question that has been made at your lordships' bar has been, whether the court has any authority to issue it against persons guilty, not of any positive act of contempt, but of mere non-feasance only: and, upon consideration of the cases in which it has been held to apply, it appears to me, if not by direct authority to be drawn from them, at least by necessary analogy, that it must apply to the case of mere non-feasance; that is, in the particular case, to mere refusal to give aid to the officer. I. In the case of refusal to aid and assist the sheriff in the execution of an ordinary writ, it may be admitted that the more common course of proceeding would be by indictment or information against the party so refusing; there being in the crown office informations to be found upon the file against such offenders. But, admitting that such would be the ordinary course of proceeding in that case, it would not govern the present; for, there is a broad distinction between the two cases. The writ of execution to the |