CHAP. XXVII. of the ecclesiastical courts, in the face of the court, or any other contempt towards such court or the process thereof, are directed to be signified to the Lord Chancellor, who is to issue a writ de contumace capiendo for taking into custody persons charged with such contempts; such person not being a peer, lord of Parliament, or member of the House of Commons. Courts Martial, Isle of Man, Any person subject to military law, who is guilty of contempt of a Court Martial, by using insulting or threatening language, or by causing any interruption or disturbance in the proceedings of such court, may be committed by the court into military custody; and such court may either order him to be tried by another Court Martial, or, after hearing or giving him an opportunity of answering his contempt, may, if the court think it expedient, by order under the hand of the president, commit the offender to prison, with or without hard labour, for a period not exceeding twenty-one days (r). Where a person not subject to military law, is guilty of any contempt towards a Court Martial, by using insulting or threatening language, or by causing any interruption or disturbance in its proceedings, or by printing observations, or using words calculated to influence the members of or witnesses before such court, or to bring such court into disrepute; the president of the court martial may certify the offence of such person to any court of law in the part of His Majesty's dominions where the offence is committed, which has power to commit for contempt; and that court may after hearing any witnesses against or on behalf of the accused, and any statement in defence, punish or take steps for the punishment of such person in like manner as if he had been guilty of contempt of that court (s). The Court of Chancery of the Isle of Man is a Court of Record, and has power to punish for contempts, whether committed in the face of the court, or out of court. And so, where it has committed a party for contempt in publishing, out of court, in a newspaper, matters considered by the court to be defamatory of its proceedings, the High Court of Justice in England will not interfere by habeas corpus, unless there has been some error in the manner and form of the proceeding (t). () Vide the Army Act, 1881, s. 28. (*) Ibid., s. 126, sub-s. 3. It should be observed that a court martial has the power, whilst sitting, of ordering the removal and exclusion from the court, of any person, whether subject to military law or not, who wilfully interrupts the proceedings of the court. (1) In re Crawford, 13 Q. B. 613, 628. All colonial Courts of Record have power to punish for CHAP. XXVII. contempt of court. The supreme (or superior) colonial courts Colonial have similar powers to those of the High Court of Justice in Courts. England, and punish for contempts whether committed in the face of the court or out of court (u). contempt. The High Court of Judicature in India has power to suspend Judges in India a member of the English bar from practice as an advocate in punish for that court, for contempt of court, in publishing a libel reflecting on the judges of that High Court in their official capacity (x). According to modern authorities, all legislative assemblies Legislative possessing judicial functions have the power of vindicating assemblies. themselves from contempts; this power, however, does not belong to all colonial legislative assemblies. The English House of Commons, though possessing no judicial functions, has an authority to commit, founded upon ancient usage. In the exercise of this power the court or assembly must themselves be the judges of the necessity for doing so; and it is clear that one court cannot question the proceedings for contempt by any other court. The reply of the judges to the question put by Lord Eldon in the House of Lords, in the case of Sir Francis Burdett v. Abbot (y), is decisive as to that. The question was, "If the Court of Common Pleas committed for a contempt without stating any reason, would this court, or any other court in Westminster Hall, interfere and set the prisoner at liberty by reason of the generality of the warrant?” The answer was, by all the judges, that no such thing could be done. Classification Division and Classification of Contempts.—The subject, Con- Division and tempts of Court may, properly, be classified and arranged of Contempts. under four different heads or divisions (viz.)— 1. Contempts committed in the face of the court; as by some insult or open act of defiance to the presiding judge; or by some wilful interruption of the proceedings. 2. Contempts committed out of court, by some wrongful interference with the administration of justice; as by some publication reflecting on proceedings pending before the court, or on parties concerned in such proceedings. 3. Contempts by disobedience to the lawful judgments, decrees, or orders of the court. (u) Vide MDermott's case, L. R. 1 P. C. C. 260, and In re Pollard, L. R. 2 P. C. C. 106; and infra, p. 423. (x) Re S. B. Sarbadhicary (1906), 95 L. T. R. 894 (P. C. Ap.). (y) 14 East, 1; 5 Dow, 165, 199. CHAP. XXVII. Contempts 4. Contempts by other acts tending to prejudice or obstruct the course of justice :-as by threats or attempts to intimidate, to bribe, or otherwise unduly influence any person concerned in the administration of justice; as a judge, juror, or officer of the court, or a witness in or party to proceedings pending before the court. CLASS 1.-Contempts committed in the face of the court.committed in It is a necessary incident to every court of justice, whether of record or not, to fine and imprison for a contempt to the court, acted in the face of it (). the face of the Court. General principles as to Contempts of Court. Generally, any contemptuous or contumelious words, when spoken to the presiding judge or magistrate of any court of record, in the execution of the duties of his office, are punishable as contempts; whether the person guilty of the offence be party to the proceedings or not (a). The principle upon which the jurisdiction is founded in all cases of contempt of court is, the wrongful interference with, or obstruction to, the administration of justice. A judge, whose sworn duty it is to punish crime when established by legal proof, and brought before him judicially, is not to sit and hear the law defied in his presence, with impunity. The law therefore arms him with an authority to fine and imprison offenders for contempts committed in the face of the court. In the case of an insult to himself, it is not on his own account that he commits, for that is a consideration which should never enter his mind. But, though he may despise the insult, it is his duty to support the dignity of his station and to uphold the law, so that in his presence at least, it shall not be infringed. Although therefore, it is necessary that courts of justice should have the power to punish for contempts, it is a power which has its justification in necessity alone, and should be exercised cautiously and discreetly; and never but in those cases where the necessity is plain and evident. A court may be insulted by the most innocent words, uttered in a peculiar manner and tone. It does not depend on the mere words, but partly on the manner; very often on the previous conduct. Contempt may be shown either by language or manner (b). () Sparks v. Martyn, 1 Vent. 1. 1 Sid. 144. (b) See Carus Wilson's case, 7. Q. B. 1015. Where a party was engaged in the business of his suit before CHAP. XXVII. the justices of assize, and one R. assaulted him in the presence Assault in of the judge; he was forthwith committed to the ward of the Court. sheriff (c). The taking and carrying away of a document in custodiâ Defiantly curiæ, in defiance of an express order of the judge, is a gross document in taking away a contempt, for which the offender may be committed instanter custodiâ to prison (d). curiæ. expressions to A defendant conducting his own defence, on his trial for a Defendant, on his trial, using misdemeanour, may be punished for contemptuous expressions contemptuous applied to the judge in the course of making his defence to and defiant the jury; as in a case where the defendant, being indicted for the Judge. the publication of a blasphemous libel, conducted his own. defence at the trial, in the course of which he made several offensive observations concerning the Christian religion, derogatory to the character of persons not before the court. After being repeatedly warned by the judge that his so doing was highly improper, and that if he persisted he should be obliged to use the means he had to restrain him: to which the defendant replied—“ My Lord, if you have your dungeon ready I will give you the key." For this expression the learned judge fined him £20. He afterwards made use of other expressions reviling the Christian religion, and stating that "the Bishops are generally sceptics"; for which the learned judge imposed other fines. A rule nisi having been obtained on an affidavit by the defendant that by the imposition of these fines he was intimidated in his defence, and omitted material parts of it, consisting of various authorities selected. from the writings of ecclesiastics and others; that the interruptions of the judge and the impositions of the fines, paralyzed his energies and prevented him from making an impression on the jury in his favour, and from obtaining a verdict of acquittal: the court held, that no ground was shown for the granting of a new trial: that if any embarrassment arose it was owing to his own pertinacity: and that the judge was justified in stopping the defendant in the line of defence he pursued, and in fining him, after warning, for persisting in it (e). And Abbott, L.C.J., in his judgment, observed," If I thought that the decision I am about to pronounce could have the effect of restraining any person, who may hereafter stand (c) Vin. Abr. "Contempt," A. 6. (d) Watt v. Ligertwood, L. R. 2 Sc. App. H. L. 362. (e) The King v. Darison, 4 B. & Ald. 329. CHAP. XXVII. on his trial, from making a bold as well as a legitimate course of defence, I would pause before I pronounced that decision. The question, indeed, is a momentous one. It is absolutely a question whether the law of the land shall or shall not continue to be properly administered. For it is utterly impossible that the law can be so administered if those who are charged with the duty of administering it have not power to prevent instances of indecorum from occurring in their own presence. That power has been vested in the judges, not for their personal protection, but for that of the public; and a judge will depart from his bounden duty if he forbears to use it when occasions arise which call for its exercise. I quite agree that this power,-more especially where it is to be exercised on the person of a defendant,-is to be used with the greatest care and moderation. But if the publication of blasphemy and irreligion cannot in any other way be prevented, in my opinion a judge will betray his trust who does not put it in force" (f). Witness fined for contempt in refusing to answer. Refusal to give up name of So, where a defendant, on his trial for an assault, in addressing the court made use of violent expressions towards the prosecutor, the court ordered and adjudged him to enter into recognizances with two sureties to be of good behaviour for two years, and to be imprisoned till such security is given (9). And where a witness, on the trial of an information for bribery, refused to answer a certain question lest his answer should tend to criminate him: and on being told by the judge of assize that he was completely protected by a statutory certificate of indemnity, he still persisted in his refusal; whereupon the judge committed him to prison for six months and fined him £500: it was held, that the judgment was not subject to review by a Court of Appeal (h). But the proprietor and editor of a newspaper in which a writer of libel, libellous letter has been published, cannot be compelled to give up either the manuscript of the letter or the name of the writer of it and his refusal to do so does not constitute a contempt of court (i). Contempt by defying the And, as already shown, the rank or dignity of the offender affords no excuse (k); on the contrary, it is sometimes an (f) The King v. Darison, 4 B. & (g) Rex v. Mahon, 4 A. & E. 576. () In re a special reference from the Bahama Islands (1893), App. Cas. 138; S. C., nom. In re Moseley, 62 L J. P. C. C. 79. (k) Vide Lord Preston's case, supra, p. 392. |