Page:United States Reports, Volume 1.djvu/255

244 

1788.

law in his own caufe, and that without appeal. Holt afferts that an Act of Parliament which fhould authorize fo unreafonable a thing, would be void ; and it is fortune, on this occafion, that a candid review of the law itfelf, does not contenance this abfurdity, which lies only in the Plaintiff's conftruction. The firft claufe defines the Perfons privileged ; the fecond narrows down the privilege by a variety of exceptions; thefe exceptions are either in fact or law ; and the exceptions in law are fuch as muft either be determined by the records themfelves, or by the Court upon a ftatement of the facts on which they arife. If, therefore, it had been intended to leave the matter of reʃidency entirely to the affidavit of the party, the divifion of the fection by the word or, would have been poftponed, and this fentence muft then have been claffed before thofe things which are to be proved ƒrom records or otherwiʃe.  Nor is the word otherwiʃe to be confidered as merely diftinguifhing the proofs by record, from  thofe by affidavit ; but as meaning fuch other evidence as the common law requires : for, furely it would be as improper, nay, more dangerous, to permit a man to fwear as to the reʃidency of his adverfary, than as to the exiftence of a mortgage or judgment, which he might eafily afcertain, by infpecting the dockets and records in which they are entered.

But, let us fuppofe, that there was no disjunctive in the fection, and enquire, for a moment, whether the Court, even on that ground, have not a right to inveftigate the facts contained in the affirmation ? By the laft fentence of the fecond fection, all the affidavits, taken in purfuance of the act, are directed to be filed : now, this cannot be intended merely to fhew that an affidavit has been made, for that would fufficiently appear from the entry in the dockets ; but as another, more beneficial purpofe, as the real object of the Legiflature ; and will determine, accordingly, that the filing of the affidavits is intended to give the Judges an opportunity of feeing, on any future controverfy, whether the allegations bring the cafe legally within the exceptions of the act. In the inftance of reʃidence,  above all others, as few Plaintiffs comprehend the technical import of the word, this provifion feems to be indifpenfible ; and when the 3d fection fays, that if the Court find the Defendant is fuch as by the ac: is entended to be exempted from arreft, it furnifhes a conclufive argument, that they muft examine the evidence produced by the Parties ; for, in order to ƒind a particular object, is is clearly requifite, in the firft place, to ʃearch for it.

Thefe ideas on the fubject are, likewife, corroborated by the uniform practice of the Courts ; which has been to iffue the Capias at once, leaving the proof of the exception,‘till the Defendant makes his claim of privilege. The Defendant in the prefent cafe would be under no difficulty to obtain bail ; but the principal ground of his oppofition is, that if he now tacitly fuffers himfelf to be arrefted, his privilege, by the words of the act, will be forever extinguifhed. For