CHAP. XXVII. the course of justice; or by calumniating the parties concerned in causes before the court, and in prejudicing the minds of the public against suitors and others, before the cause is heard. Libels on Libel on Lord Libel on the Arches, and the Judge. As judges, magistrates, and others entrusted with the administration and execution of the law, are the servants of the law, as well as of the State, it is peculiarly the policy of the law to protect them in the discharge of the duties of their respective offices: and accordingly, libels against judges and magistrates have been regarded as more immediately directed against the authority of the law, and as an offence deserving of a more exemplary punishment than libels of private individuals (e). Libels on his Majesty's judges and ministers of justice, though sometimes punishable as contempts of court, are more usually the subject of criminal information. When punishable as a contempt, the question is not whether the publication is a libel, but whether it contains reflections on the administration of justice, in a proceeding pending before the court: if it does, it may be punished as a contempt of court, if otherwise, only as a libel. But if the publication be not only a libel on the judge personally, but also on the administration of justice, in a matter pending before the court; then it is punishable not only as a contempt of court for the libel on the administration. of justice, but also by criminal information or indictment for the personal libel on the judge. It is a matter of history that in former times offences of the kind were punished with cruel severity. Amongst the earlier cases, one of the most notorious is Wrennum's case, in which the Attorney-General exhibited an information in the Star Chamber. Wrennum, who was a man of rank and education, was charged in that information with a libel, traducing the Lord Chancellor Bacon, in a petition to the King, complaining of his treatment by the Lord Chancellor in a suit in the Court of Chancery, by which he had been ruined. The Court of Star Chamber found him guilty, and sentenced him to the cruel and infamous punishment of perpetual imprisonment; to pay a fine of £1,000; to be twice pilloried; and to lose both his ears (ƒ). In a subsequent case, the defendants, for writing and pub (e) See 5 Co. 125; 9 Co. 59; Hob. 215; 5 Mod. 43, 167; and see The Queen v. Langley, 2 Salk. 698. (f) 16 Jac. I. (1618); Popham, 135; Digest Law Libels, 106. lishing two letters, scandalizing the Court of Arches, and Sir CHAP. XXVII. William Bird the judge thereof, were fined by the Court of Star Chamber, the husband in £200 and the wife in £100, and both committed to the Fleet (g). Privy Council For a seditious libel against the Privy Council and the Libel on the judges, the defendant was committed to the Fleet during the and Judges. King's pleasure, and fined £3,000 (h). Chief Justice In another case, one Jeffe was indicted for a libel directed to Libel on Lord the King, against Coke, then late Chief Justice, in respect of a Coke. judgment delivered in the case of Magdalen College, affirming the said judgment to be treason, and speaking of the late Chief Justice as "Traitor and perjured judge." This libel he affixed to the great gate at the entrance to Westminster Hall; he also affixed copies at divers other places. Being arraigned, he put in a scandalous plea, affirming that he would not plead otherwise. It was adjudged by the Star Chamber that he be committed to the marshal, stand upon the pillory, be imprisoned. till he submitted to every court, be bound to his good behaviour, with sureties during his life, and pay a fine of £1,000 to the King (i). of libels on In modern cases, defendants have been more humanely Modern cases treated. Where Lord Mansfield, C.J., had made an order out judges. of court for amending an information for libel, the defendant published a pamphlet reflecting on the Lord Chief Justice for having so done; representing the amendment as having been made "officiously, arbitrarily and illegally"; a rule was granted requiring the defendant to show cause why an attachment should not issue against him for contempt (k). Chief Justice In a subsequent case, an information was filed by the Libel on Lord Attorney-General against the defendants for printing and pub- Ellenborough. lishing in a newspaper, called "The Independent Whig," certain libels, with intent to bring the administration of justice into contempt, and to defame and vilify Lord Ellenborough, Chief Justice of the Court of King's Bench. The libels were contained in certain letters which represented his lordship as disgracing his high station, and preventing justice being done CHAP. XXVII. to a person who sought it at his hands in court; alluding to a case which had then lately been tried before his lordship. The letters were in the highest degree defamatory and scurrilous. The defendants were found guilty (). Libel on Judge trial and verdict. In another case, an information had been filed by the and Jury after Attorney-General against White and another (m), for an abusive comment on the conduct of Mr. Justice Le Blanc, and a jury, by whom a person had lately been tried for murder and acquitted. Upon the trial of the defendants for the libel, Grose, J., directed the jury, that in case they were of opinion that the publication had been made, not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into contempt the administration of justice in this country, they ought to find the defendants guilty. Ridicule and contempt of Judge of Assize. And where a judge of assize having a case to try in which a the details were of an obscene nature: by way of warning and advice to the newspaper reporters, before the trial commenced, stated with reference to the trial of that case that as there was no protection in the case of a newspaper publishing obscene and indecent matter, he hoped and believed that his advice would be taken, after the trial and conviction, and whilst the learned judge was still sitting, one of the local newspapers published a scurrilous attack upon the judge, holding him up to ridicule and contempt with reference to his observations so made upon the case before the trial: such was held to be a contempt of court, and upon the application of the AttorneyGeneral on the Crown side of the Queen's Bench Division, the defendant was ordered to show cause why he should not be committed to prison for his contempt; and on showing cause and apologising, he was fined £100 and £25 for costs (n). Committals for scandalous reflections on Courts of Justice now seldom resorted to. But although the publication of scandalous matter reflecting upon a judge in his administration of justice, may amount to a contempt of court, committals for such have of late years seldom been resorted to, except in cases of a very gross nature; occupants of the judicial Bench having acted with commendable forbearance, and left to public discrimination attacks upon and comments derogatory or scandalous of them in their judicial capacity. (1) The King v. Hart and another, K. B. E. T. 1808; 48 Geo. III.; vide 10 East, 94; and see Butt v. Conant, 1 Brod. & Bing. 548; 4 Moore, 195. (m) 1 Camp. 359. (n) The Queen v. Gray (1900), 2 Q. B. 36. But in small Colonies, consisting principally of coloured CHAP. XXVII, populations, the enforcement, in a proper case, of committal for In Colonial contempt for scandalous attacks upon the court in its adminis- Courts tration of justice, may be necessary for the preservation of its dignity, and the enforcement of its judgments and decrees (o). essential. safeguard. The jurisdiction in contempt exists in the interest of the Jurisdiction in public, as a safeguard of the due administration of justice. Contempts, a Any act done or writing published which is calculated to bring the Court, or the judge of a Court, into contempt, or to lower his authority, is a contempt of Court. Further, any act done, or writing published, which is calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts, is a contempt of Court (p). All Courts of Record, Inferior as well as Superior, and What Courts whether of civil or criminal jurisdiction, have power to punish tion to punish have jurisdicfor contempts committed in the face of the court. But In- for Contempts. ferior Courts not of Record have no power (except where expressly given them by statute) to punish for contempts other than those committed in the face of the court: whereas the Superior Courts, and some Inferior Courts of Record, punish for contempts of both classes. There is a distinction between a power to punish for contempt, and a power to remove for disorderly conduct; the one being a judicial power, the other an ordinary power for the necessary preservation of order, which may be used by all Courts Inferior as well as Superior. Courts of Record are of three classes:-1. Supreme; 2. Courts of Record, what Superior; 3. Inferior. 1. The Supreme Court of this Kingdom is the High Court of Parliament, consisting of King, Lords, and Commons (q). The Supreme Court of Judicature in England was constituted by the Judicature Act of 1873 (r), which consolidated into one court under the name of "The Supreme Court," the then existing Court of Chancery, the Superior Courts of Common Law, and the Courts of Admiralty, Probate and Divorce. 2. The Superior Courts of Record, as constituted by the Judicature Acts, are, The High Court of Justice, and the Court (0) McLeod v. St. Aubyn (1899), A. C. 549. (p) Per Lord Russell, L.C.J., in The Queen v. Gray, 16 T. L. R. (1900), pp. 305-6. () As to contempts of Parliament and other legislative assemblies, ride Chapter XXIX., infra. () 36 & 37 Vict. c. 66, s. 3 (amended by various subsequent statutes). are. CHAP. XXVII. of Appeal (s). And by a subsequent Statute (t) the term "Superior Courts" means and includes:-As to England, his Majesty's High Court of Justice and his Majesty's Court of Appeal, and the Superior Courts of law and equity in England as they existed before the constitution of his Majesty's High Court of Justice: and-as to Ireland, the Superior Courts of law and equity at Dublin: and—as to Scotland, the Court of Session. Superior jurisdiction as Judicial proceedings at Chambers, relation to. The Court of the Railway and Canal Commission is also a Court of Record (u). 3. Inferior Courts of Record, as ordinarily so called, are Corporation Courts, Courts Leet, and Sheriff's Torn, &c. (x). Courts not of Record, are Courts Baron, and the old County and Hundred Courts. A Court that is not of Record, cannot impose any fine on an offender, nor award a capias against him (y). Every court having power to fine and imprison is thereby made a Court of Record; the proceedings of which can only be removed by writ of error or certiorari (2). It appears therefore, that wherever there is jurisdiction erected with power to fine and imprison, that is a Court of Record; and what is there done is matter of record (a). And this too, though the power be given de noro, by Act of Parliament (¿). The Superior Courts of Record have power to punish not only for contempts committed in the face of the court, but also for contempts in the nature of publications reflecting on its proceedings, or on the parties concerned in such proceedings, in matters pending before the court; though they be published whilst the court is not sitting, and at some distance of time and place. And the question whether the particular publication be a contempt or not, is for the court to determine (c). Contempts of court in relation to judicial proceedings of the Superior Courts at Chambers, have usually been punished, not by the judge whilst presiding at chambers, but by the court of which the judge is a member, as a contempt of the court itself. It is however, not to be assumed (although the point has never (s) 36 & 37 Vict. c. 66, ss. 16, 17 and 18. (t) 39 & 40 Vict. c. 59, s. 25. (u) 51 & 52 Vict. c. 25, s. 2. (x) Bac. Abr. tit. Courts (D.) 1. (y) Vide Godfrey's case, 11 Co. Rep. () Bac. Abr. tit. Courts (D.) 2. (a) Vin. Abr. tit. Court (I.) 7. (b) Ibid., 12 Mod. 388, per Holt, C.J.; Carth. 494. (c) Vide Crawford's case, 13 Q. B. 628, 630.) |