Page:United States Reports, Volume 1.djvu/339

328 

1788.

that point had been determined by an unanimous opinion of the four judges yefterday, it was not now open for argument.

Lewis faid, that as a mifreprefentation had been induftrioufly fpread abroad refpecting the conduct of the court, he thought it proper, at this time concifely to ftate the real nature of the prefent proceedings. It has been afferted that the court were about to compel Mr. Oʃwald to convict himfelf of the offence with which he is charged: but the fact is this, that it is incumbent upon the perfon who fuggefts the contempt to prove it by difinterefted witneffes ; and then, indeed, the defendant is allowed by his own oath to purge and acquit himfelf, in fpite of all the teftimony which can poffibly be produced againft him. It appears clearly, therefore, that Mr. Oʃwald's being called upon to anfwer interrogatories, is not meant to eftablifh his guilt (for that has been already done) but to enable him to avoid the punifhment which is the confequence of it. The court employ no compulfion in this refpect. He may either anfwer, or not, as he pleafes: it he does anfwer, his single oath, in his own favour, will countervail the oaths of a thoufand witneffes ; and if he does not anfwer, his filence corroborates the evidence which has been offered of the contempt, and the judgment of the court muft neceffarily follow.

M‘KEAN, C.J. Your ftatement is certainly right, and the mifreprefentation, which is attempted, muft either be the effect of wickednefs, or ignorance.

Lewis now prayed, that the rule might be made abfolute ; but remarked, that, according to the authorities, the court might either do that ; or, as the defendant was prefent, they might proceed at once to pafs fentence upon him.

M‘KEAN, C.J. There can be no occafion, when the party is prefent, to make the rule for the attachment abfolute : the court will proceed to give judgment.

BRYAN,Juʃtice. I was not here when the complaint was made to the court, when the evidence in fupport of the motion was produced, or the arguments againft it were delivered:  I confider myfelf therefore totally incapacitated for taking any part in this bufinefs.

Lewis. We can immediately furnifh the court with the proofs.

BRYAN, Juʃtice. Can you furnifh me, likewife, with Mr. Sergeant‘s arguments?

Lewis faid, that he had not penetration enough to difcover any argument in what had been faid for the defendant ; and having again read all the evidence which had been produced, he recapitulated what he had before faid in fupport of the motion.

Page, the under-fheriff, was then called upon to prove, that the writ in the action of Browne vs Oʃwald had been in his poffeffion, at leaft twelve days before it was ferved ; and that the delay in ferving it arofe at firft, from the defendant's being at Baltimore;  and, afterwards, from his not being at home when the witnefs had repeatedly called upon him. BRYAN,