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.