1902 Encyclopedia > Contempt of the Court

Contempt of the Court




CONTEMPT OF COURT is any insult offered to a court of justice, or any defiance or resistance to its authority. " If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned at the discretion of the judges, without any further proof or examination." In other cases if the judges have reason to believe, from an affidavit, that a contempt has been committed, they make a rule calling on the suspected person to show cause why an attachment should not issue against him, or in flagrant cases the attachment issues in the first instance. (See ATTACHMENT.) The process of attachment merely brings the accused into court; he is then required to answer on oath interroga-tories administered to him, so that the court may be better informed of the circumstances of the contempt. If he can clear himself on oath he is discharged; if he confesses the court will punish him by fine or imprisonment, or both, at its discretion. Both in courts of common law and courts of equity many acts are punished as contempts which are properly civil injuries, and the process of contempt enforced against them is, as Blackstone points out, to be looked upon rather as a civil executim for the benefit of the injured party than as a criminal process for a contempt of the authority of the court. Among the oLences enumerated in the text books as the most usual instances of contempt are the following:—(1) Disobedience of inferior judges and magistrates; (2) Wrongdoing by sheriffs, bailiffs, jailers, and other officers in executing the process of the law; (3) Malpractice of attorneys and solicitors; (4) Misbehaviour of jurymen in collateral matters relating to the discharge of their duties; (5) Misbehaviour of witnesses; (6) Disobedience of parties in a cause to an order of the court, non-payment of costs, non-observance of awards; (7) Those committed by other persons. Among those general contempts some, says Blackstone, " may arise in the face of the court, as by rude and contumelious behaviour, by obstinacy, perverseness, or prevarication, by breach of the peace, or any wilful disturbance whatever ; and others in the absence of the party, as by disobeying or treating with disrespect the king's writ or the rules and process of the court, by perverting such writ or process to the purposes of private malice, &c, by speaking or writing contemptu-ously of the court or judges acting in their judicial capacity, by printing false accounts (or even true ones without proper permission) of causes depending in judgment," &c.

The practice of the courts in punishing the last ciass of contempts is of great importance in these days, inasmuch as it involves the question of the liberty of the press. It wiil be seen from the following statement that the judges have assumed very extensive and arbitrary powers of interfering with the free discussion by the public of the proceedings in courts of justice.

A judgment prepared by Lord Chief-justice Wilmot in the case of an application for an attachment against J. Almon in 1765, for publishing a pamphlet libelling the Queen's Bench, is, although it never was delivered in court, constantly referred to as authoritative by later judges and writers. The chief-justice said that the offence of libelling judges in their judicial capacity is the most proper case for an attachment, for the " arraignment of the justice of the judges is arraigning the king's justice ; it is an impeach-ment of his wisdom and goodness in the choice of his judges; and excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them. To be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open, and uninterrupted current which it has for many ages found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth." Again " the consti-tution has provided very apt and proper remedies for cor-recting and rectifying the involuntary mistakes of judges, and for punishing and removing them for any perversion of justice. But if their authority is to be trampled on by pamphleteers and news-writers, and the people are to be told that the power given to the judges for their protection is prostituted to their destruction, the court may retain its power some little time, but I am sure it will eventually lose all its authority." In several cases the judges have declared that while their administration of justice may be discussed fairly and bona fide, it is not open to a journalist to impute corruption. A recent writer (Shortt, Law relating to Works of Literature) states the law to be that the temperate and respectful discussion of judicial determina-tion is not prohibited, but mere invective and abuse, and still more the imputation of false, corrupt, and dishonest motives is punishable. In an information granted in 1788 against the corporation of Yarmouth for having entered upon their books an order " stating that the assembly were sensible that Mr W, (against whom an action had been brought for malicious prosecution, and a verdict for ¿£3000 returned, which the court refused to disturb) was actuated by motives of public justice, of preserving the rights of the corporation to their admiralty jurisdiction, and of support-ing the honour and credit of the chief magistrate," Mr Justice Buller said, "The judge and jury who tried the case, confirmed by the Court of Common Pleas, have said that instead of his having been actuated by motives of public justice, or by any motives which should influence the actions of an honest man, he had been actuated by malice. These opinions are not reconcilable; if the one be right the other must be wrong. It is therefore a direct insinuation that the court had judged wrong in all they have done in this case, and is therefore clearly a libel on the administra-tion of justice." Many of the doctrines expressed in the above extracts go beyond the practice, if not the strict law of later times. The tendency has been to restrict the process of contempt to cases in which judges are insulted or defied in the discharge of their duties, or in which matters relating to a pending cause are publicly discussed. Bribes or menaces offered to the judges have been punished as contempts. In a recent case a judge of assize having ordered the court to be cleared on account of some disturb-ance, the high sheriff issued a placard protesting against " this unlawful proceeding," " and prohibiting his officers from aiding and abetting any attempt to bar out the public from free access to the court." The lord chief-justice of England, sitting in the other court, summoned the sheriff before him and fined him ¿£500 for the contempt, and =£500 more for persisting in addressing the grand jury in court, after he had been ordered to desist.





The difference between pending and decided cases has been frequently recognized by the courts. What would be a fair comment in a decided case may tend to influence the mind of the judge or the jury in a case waiting to be heard, and will accordingly be punished as a contempt. This is distinctly laid down in the case of Tichborne v. Mostyn, where the publisher of a newspaper was held to have com-mitted a contempt by printing in his paper extracts from affidavits in a pending suit, with comments upon them. In the case of the Queen v. Castro, it was held that after a true bill has been found, and the indictment removed into the Court of Queen's Bench, and a day fixed for trial, the case is pending ; and it is a contempt of court to address public meetings, alleging that the defendant is not guilty, that there is a conspiracy against the defendant, and that he cannot have a fair trial ; and the court will order the parties to answer for their contempt, and fine or imprison them at discretion. In another case the publica-tion of a winding-up petition, containing charges of fraud, before the hearing of the petition was held to be a contempt of court. The courts may, if they choose, prohibit any publication of their proceedings while the litigation is pending. It is now the invariable rule of the English press to refrain from expressing an opinion on matters relating to any pending suit. On the other hand, the dis-cussion of decided cases shares in the licence how allowed to the expression of opinion on all public affairs in England.

The Scotch and colonial courts exercise the same power of committing for contempt as the English. It has been held in a case arising under the County Court Act, that inferior courts of record have only power over contempts committed in fade curiae. The county court judge has no power of proceeding against a person for a contempt com-mitted out of court.

The proper punishment of contempt is by fine or im-prisonment at the discretion of the court. In a recent case it was held that no person can be punished for contempt, unless the specific offence charged against him is distinctly .stated, and an opportunity given him of answering it. When a barrister had been suspended from practice by the supreme court of Nova Scotia for addressing a letter to the chief justice which was a contempt of court, the Privy Council on appeal discharged the order, as substituting a penalty and mode of punishment which was not the appropriate and fitting punishment for the offence. The letter was written by the defendant in his individual capacity of suitor, and had no connection with his profes-sional status or character.

Blackstone notices the exceptional character of the punishment provided for this offence. "It cannot have escaped the attention of the reader/' he says, " that this method of making the defendant answer upon oath to a criminal charge is not agreeable to the genius of the com-mon law in any other instance." There can be no doubt that the discretionary power of judges to punish summarily by fine or imprisonment offences committed against their own dignity is liable to abuse, and careful as English judges are in enforcing it, a trial and conviction in the ordinary manner would probably be more satisfactory. The offence is by no means clearly defined, but it will be generally agreed that it is desirable to prevent and punish insulting expressions and disorderly conduct in courts of justice, as well as any such publications as may really tend to prejudice a pending cause. A judge may safely be intrusted with the power of keeping order in his court, but contempts committed elsewhere should be pro-ceeded against like other offences.

A similar power of punishing for contempt is exercised by the two Houses of Parliament. The question was discussed in the case of Burdett v. Abbott, where Lord Ellenborough said, " Can the High Court of Parliament, or either of the two Houses of which it consists, be deemed not to possess intrinsically that authority of punishing summarily for contempts which is acknowledged to belong, and is duly exercised as belonging, to every superior court of law of less dignity doubtless than itself 1 " It was at one time held that the "privilege of committing for contempt is inherent in every deliberative body invested with authority by the constitution ; " and that accordingly it extended to colonial assemblies. This opinion has been overruled by subsequent decisions. Baron Parke, in the case of Kielley v. Carson, says that the power of punish- ment for contempt attaches to bodies having judicial functions, and is an incident of those functions, except only in the case of the House of Commons, whose authority in this respect rests upon ancient usage. The Legislative Assembly of Victoria is entitled by enactment to the privileges, immunities, and powers held, and enjoyed, and exercised by the English House of Commons. Where a legislative assembly has the power of committing for contempt, the punishment lasts only till the end of the current session. " Though the party should deserve the severest censure," says Lord Denman, " yet his offence being committed the day before a prorogation, if the House ordered his imprisonment but for a week, every court in Westminster Hall, and every judge in all the courts would be bound to discharge him by habeas corpus." See PRIVILEGE. (E. E.)







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