CONTEMPT OF COURT

The late Mr. Carlyle has somewhere in his voluminous but well-indexed

writings a highly humorous and characteristic passage in which he,

with all his delightful gusto, dilates upon the oddity of the scene

where a withered old sinner perched on a bench, quaintly attired in

red turned up with ermine, addresses another sinner in a wooden pew,

and bids him be taken away and hung by the neck until he is dead; and

how the sinner in the pew, instead of indignantly remonstrating with

the sinner on the bench, 'Why, you cantankerous old absurdity, what

are you about taking my life like that?' usually exhibits signs of

great depression, and meekly allows himself to be conducted to his

cell, from whence in due course he is taken and throttled according to

law.

This situation described by Carlyle is doubtless mighty full of

humour; but, none the less, were any prisoner at the bar to adopt

Craigenputtock's suggestion, he would only add to the peccadillo of

murder the grave offence of contempt of court, which has been defined

'as a disobedience to the court, an opposing or despising the

authority, justice, and dignity thereof.'

The whole subject of Contempt is an interesting and picturesque one,

and has been treated after an interesting and picturesque yet accurate

and learned fashion by a well-known lawyer, in a treatise[A] which

well deserves to be read not merely by the legal practitioner, but by

the student of constitutional law and the nice observer of our manners

and customs.

[Footnote A: _Contempt of Court, etc._ By J.F. Oswald, Q.C. London:

William Clowes and Sons, Limited.]

An ill-disposed person may exhibit contempt of court in divers

ways--for example, he may scandalize the the court itself, which may

be done not merely by the extreme measure of hurling missiles at the

presiding judge, or loudly contemning his learning or authority, but

by ostentatiously reading a newspaper in his presence, or laughing

uproariously at a joke made by somebody else. Such contempts,

committed as they are _in facie curiae_, are criminal offences, and

may be punished summarily by immediate imprisonment without the right

of appeal. It speaks well both for the great good sense of the judges

and for the deep-rooted legal instincts of our people that such

offences are seldom heard of. It would be impossible nicely to define

what measure of freedom of manners should be allowed in a court of

justice, which, as we know, is neither a church nor a theatre, but, as

a matter of practice, the happy mean between an awe-struck and unmanly

silence and free-and-easy conversation is well preserved. The

practising advocate, to avoid contempt and obtain, if instructed so to

do, a hearing, must obey certain sumptuary laws, for not only must he

don the horsehair wig, the gown, and bands of his profession, but his

upper clothing must be black, nor should his nether garment be

otherwise than of sober hue. Mr. Oswald reports Mr. Justice Byles as

having once observed to the late Lord Coleridge whilst at the Bar: 'I

always listen with little pleasure to the arguments of counsel whose

legs are encased in light gray trousers.' The junior Bar is growing

somewhat lax in these matters. Dark gray coats are not unknown, and it

was only the other day I observed a barrister duly robed sitting in

court in a white waistcoat, apparently oblivious of the fact that

whilst thus attired no judge could possibly have heard a word he said.

However, as he had nothing to say, the question did not arise. It is

doubtless the increasing Chamber practice of the judges which has

occasioned this regrettable laxity. In Chambers a judge cannot

summarily commit for contempt, nor is it necessary or customary for

counsel to appear before him in robes. Some judges object to fancy

waistcoats in Chambers, but others do not. The late Sir James Bacon,

who was a great stickler for forensic propriety, and who, sitting in

court, would not have allowed a counsel in a white waistcoat to say a

word, habitually wore one himself when sitting as vacation judge in

the summer.

It must not be supposed that there can be no contempt out of court.

There can. To use bad language on being served with legal process is

to treat the court from whence such process issued with contempt. None

the less, considerable latitude of language on such occasions is

allowed. How necessary it is to protect the humble officers of the law

who serve writs and subpoenas is proved by the case of one Johns, who

was very rightly committed to the Fleet in 1772, it appearing by

affidavit that he had compelled the poor wretch who sought to serve

him with a subpoena to devour both the parchment and the wax seal of

the court, and had then, after kicking him so savagely as to make him

insensible, ordered his body to be cast into the river. No amount of

irritation could justify such conduct. It is no contempt to tear up

the writ or subpoena in the presence of the officer of the court,

because, the service once lawfully effected, the court is indifferent

to the treatment of its stationery; but such behaviour, though lawful,

is childish. To obstruct a witness on his way to give evidence, or to

threaten him if he does give evidence, or to tamper with the jury, are

all serious contempts. In short, there is a divinity which hedges a

court of justice, and anybody who, by action or inaction, renders the

course of justice more difficult or dilatory than it otherwise would

be, incurs the penalty of contempt. Consider, for example, the case of

documents and letters. Prior to the issue of a writ, the owner of

documents and letters may destroy them, if he pleases--the fact of his

having done so, if litigation should ensue on the subject to which the

destroyed documents related, being only matter for comment--but the

moment a writ is issued the destruction by a defendant of any document

in his possession relating to the action is a grave contempt, for

which a duchess was lately sent to prison. There is something majestic

about this. No sooner is the aid of a court of law invoked than it

assumes a seizin of every scrap of writing which will assist it in its

investigation of the matter at issue between the parties, and to

destroy any such paper is to obstruct the court in its holy task, and

therefore a contempt.

To disobey a specific order of the court is, of course, contempt. The

old Court of Chancery had a great experience in this aspect of the

question. It was accustomed to issue many peremptory commands; it

forbade manufacturers to foul rivers, builders so to build as to

obstruct ancient lights, suitors to seek the hand in matrimony of its

female wards, Dissenting ministers from attempting to occupy the

pulpits from which their congregations had by vote ejected them, and

so on through almost all the business of this mortal life. It was more

ready to forbid than to command; but it would do either if justice

required it. And if you persisted in doing what the Court of Chancery

told you not to do, you were committed; whilst if you refused to do

what it had ordered you to do, you were attached; and the difference

between committal and attachment need not concern the lay mind.

To pursue the subject further would be to plunge into the morasses of

the law where there is no footing for the plain man; but just a word

or two may be added on the subject of punishment for contempt. In old

days persons who were guilty of contempt _in facie curiae_ had their

right hands cut off, and Mr. Oswald prints as an appendix to his book

certain clauses of an Act of Parliament of Henry VIII. which provide

for the execution of this barbarous sentence, and also (it must be

admitted) for the kindly after-treatment of the victim, who was to

have a surgeon at hand to sear the stump, a sergeant of the poultry

with a cock ready for the surgeon to wrap about the stump, a sergeant

of the pantry with bread to eat, and a sergeant of the cellar with a

pot of red wine to drink.

Nowadays the penalty for most contempts is costs. The guilty party in

order to purge his contempt has to pay all the costs of a motion to

commit and attach. The amount is not always inconsiderable, and when

it is paid it would be idle to apply to the other side for a pot of

red wine. They would only laugh at you. Our ancestors had a way of

mitigating their atrocities which robs the latter of more than half

their barbarity. Costs are an unmitigable atrocity.

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