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Show 408 NOTE~. Note F.,-page 388. ,811swe~· submitted by majo•· general Jackson, on a rule to show cause why an attachment for c;ontempt should not issue ag·ainst hb~ . This respondent has received a paper, purporting to be the copy of a rule of the di•trict court uf the United States for Luu· isiana, in a suit entitled "The United States vs. A. Jackson; commanding him to show cause why an 'attachment should not issue against him, for divers allege~ contempts of the said court." B~fore he makes any answeF whafever to the said charges, he deems it necessary to protest, and he does hereby pmtest against, and reserve to himself all manner of benefit of exception to, the illegal, unconstitutional, and informal nature ~f the proc_eedin~;s instituted against him : it appearing, by the saul proceedmg-- 1. That witnesses have been summoned by process of subpcena, in a suit or prosecution of the United States against him, when in fact, there is no such suit or prosecution legally pending in said court. II. That the said rule was obtained at the instance of the attorney of the United States, for the dis~ric_t of Louisi~na, who had no right officially to ask for or obtam 1t; the duties of the attorney being, by law, restricted to the prosecution of "all ~elinquents for crimes and offences, cognizable under the autbonty of the United States, and all civil actions in which they shall be concerned." As this proceeding is not pretended to be a civil action to bring it within the purview of the duties of the attor · ney, {t must be a prosecution for a crime or oftence, cognizable under the authol'ity of the United States. But the facts stated in the rule do not constitute any '" crime or offence, cognizable under this authority." The courts of the United ·states have no common law jurisdiction of crimes or offences; if, therefore, the facts sta.ted in the rule are not made such by statute, they are not cognizable by the courts : but the statutes htve been searched, and no such provision can be found; therefore, the facts charge~ arc not ofi'ences which are either cognizable by this court, 01· hable to be prosecuted by the attorney for the United States. III. That if this be a prosecution for a crime or offence under the authority of the United States, the mode of proceeding is both NOTES. 409 unconstitutional and illegal : the 7th and 8th amendment to the constitution contain many provisions, directly contrary to the mode of proceeding by attachment, for contempt; particularly the 7th amendment, that no person shall be deprived of life, l iberty, or property, without due process of law; and of the 8th, that, in all criminal prosecutions, the accused shall enjoy the right of a speedy trial, by an impartial jury; and in the S2d section of the law for punishing certain crimes against the United States, is contained a conclusive implication, if not an express provision, that no offence can be prosecuted, except by information or indictment; neither of which have been filed, in this instance. The respondent, therefore, concludes those heads of exceptions, by the dilemma, that, if the proceeding be a prosecution for a crim.e ot· o:ff'ence, cognizable by the authority of the United States, it is both unconstitutional and illegal in its present form; and if it be not such a prosecution, then has the attorney of the United States no right to institute it; his ministry by law extending only to them. IV. That this court has no right to issue an attachment for any contempt whatever; or to punish the same, in any other cases than those prescribed bJ the 17th section of the judiciary act, which confines such authority to the punishment, by fine and imprisonment, for ~ontempt in any cause m· hearing befot·e the same--whereas, by the rule, nor the affida· vits, does it appear, that the alleged contempts were olfereU in any cause or hearing before the said District Court; 011 the con~ trary, all the acls complained of as con tempts, are stated to have been done in relation to an ex·parte application made to the judge of the said court, at his chambers, at a time when his court was in vacation, ami not in a cause or hearing before the court.J V. That no attachment ought to issue, for neglecting or refusing a .return to an habeas corpus, issued and returnable out of court: the statutes on that subject, both in England and in the United States, wherever they have been re-enacted, contain express penalties for this oHence; doubtless for the reason that such 1leglect or refusal, in relation to an act done, not in a cause or ltea14 ing pending in court, but in an ex·parte proceeding at a judge's chambers, could not be punished, by attachment, as a contempt. VI. That no act in relation to the writ of habea• corpus, or the SF |