The act entitled “An act to revise the law in relation to the common law,” approved March 5, 1884, and which provides that “ the common law of England, so far as the same is applicable and of a general nature, * * * shall be the rule of decision, and shall be considered as in full force until repealed by legislative authority,” is declaratory of what has been the law by which the inhabitants of the territory now constituting the State of Illinois have been governed, and of the rights, privileges and immunities to which they have been entitled ever since Anglo-Saxon civilization first obtained a foothold in it.
Upon the question of what the common law of England is upon any subject upon which they write, the concurring testimony of Blackstone and Hawkins, the first in his Commentaries, and the last in his Pleas of the Crown, is conclusive. Blackstone, writing of contempts, having described the preliminary proceedings and then referring to courts of equity, proceeds: “And thereafter the party in contempt has answered the interrogatories, such his answer may be contradicted and disproved by affidavits of the adverse party; whereas, in the courts of law, the admission of the party to purge himself by oath is more favorable to his liberty, though perhaps not less dangerous to his conscience; for, if he clears himself by his answers, the complaint is totally dismissed.”
Hawkins states the same, in somewhat similar language. The purging of which they speak is his answer to written interrogatories, taken by a master of the court. 3 Bl. Com. 288; 2 Hawk. P. C. 207, and notes; 3 Burr. 1329. Three different times, the first and last separated by an interval of over twenty years, the Supreme Court of this State have recognized the rule so laid down as correct. Crook v. The People, 16 Ill. 534; Buck v. Buck, 60 Ill. 105; Story v. The People, 79 Ill. 45. Except by statute, there is no legitimate mode by which the judge of a court of law or equity may be informed of facts upon which he is to act by the oral testimony of witnesses delivered in his presence. The authorities, or the dicta, upon which the counsel for the defendants in error ask this court to assume the functions of the Legislature and change this “rule of decision,” in the order cited are: State v. Mathews, 37 N. H. 450, a divorce case, and the contempt was in violating an injunction; Bates’ Case, 55 N. H. 325, in which the only thing decided is that exceptions by Bates to evidence which had been admitted against him were well taken, and they were sustained; Dobbs v. State, 55 Ga. 272; where the court below had heard testimony against Dobbs,, and the Supreme Court reversed the judgment, with no allusion to the propriety of so doing; Crow v. State, 24 Tex. 12, where there was a jury trial, and the Supreme Court said the proceedings were erroneous but that Crow had no appeal, and the ° appeal was dismissed; Sinnott v. State, 11 Lea (Tenn.), 281, in which no question touching the point in issue was made; and the last, Henry v. Ellis, 49 Iowa, 205, in which the court did have before them, and did decide, the point that witnesses might, as in a case of libel, be examined as to how an ambiguous newspaper publication, which Henry acknowledged to be his act, was understood by the readers. The court declines to say that, there was any contempt in -the case, as Henry, in his application for a certiorari, upon which application the decision was made and the writ refused, had not raised the question. There was no-discussion of the law or reference to authorities in the case.
1 have not searched for any additional support to the position of the defendants in error, but assume that the field has been exhausted by the industry of the counsel. Every case except the one from Iowa presents mere dicta, which certainly are no more authoritative than the thrice written dicta of the court whose decisions are paramount as to what the law of this State is. The claim that the loose case from Iowa overbalances the unbroken current of English authority, and the many cases in accord therewith in the United States, would be too preposterous for serious consideration. Jackson v. Smith, 5 Johns. 115; U. S. v. Dodge, 2 Gall. 312; In re Pitman, 1 Curtiss (U. S.), 186; Conover v. Wood, 5 Abb. Pr. 84; State v. Earl, 41 Ind. 464; Burke v. State, 47 Ind. 528.
The plaintiff in error, in answer to the rule to show cause why he should not be attached for contempt in attempting to influence a juror, by his affidavit explicitly, without evasion, denied the whole charge in detail. Without the corroborating affidavits which he presented that denial should have ended the inquiry; unless, indeed, the court called upon hinj to answer, under oath, specific written interrogatories, which would have heen, manifestly, of no practical effect.
The court had jurisdiction of the subject-matter and of the person of the plaintiff in error, but it had no jurisdiction of the mode of proceeding. This distinction is not easily defined (Lange v. Benedict, 73 N. Y. 12) but is easily illustrated. The criminal court, having before it a defendant indicted for an offense, however trivial, has no authority, without his consent, to try the issue of fact. If he pleads guilty, the court may fix the punishment. If he denies the charge against him, the court, unaided, can go no further. The sturdy principles of the common law exempt him from submitting an issue of fact to any other tribunal than a jury of his peers, with the right of challenge. People v. Hanchett, 16 Legal News, 320, is as instructive and almost as persuasive, as authority, as if the eminent judge who decided it had sat where he did when he delivered the opinion in People v. Whitson, 74 Ill. 20.
All the further proceedings, by examining witnesses, were without warrant of law. There is in the record no plausible foundation for the position that they were by consent. The j udgment should be reversed.
Judgment reversed.