will sometimes be required, as a condition precedent to his discharge, to apologise, not only to the court itself, but also to the persons whose honour or character he may have aspersed (a). CHAPTER XXVIII. answered in All contempts of court must be answered in person, and not Contempts by attorney (b). For although counsel will be heard in behalf must be of a person in contempt, the personal attendance of the party person. will not usually be dispensed with. But where it would be inconvenient to bring up a person committed for contempt, the court may, in its discretion, dispense with his personal attendance (c). A party who is in contempt for non-compliance with an order of the court cannot be heard, except for the purpose of purging the contempt (d). But a defendant cannot object to a cause being heard, on the ground that the plaintiff is in contempt (e). The punishment for contempt of court is fine or imprison- Punishment ment, or both. An offender may also be required to find for Contempt. sureties for his good behaviour. The law does not impose any restriction upon the superior courts in the amount of the fine, nor any limit to the duration of the punishment, both being in the discretion of the court. But as to inferior courts, their decisions are subject to review by a superior court. A superior court may also require an offender to make an apology to the court; to obey the judgment or order of the court; and in default to be imprisoned until he obey the same (ƒ). An offender in contempt cannot, since the Debtors' Act, 1869, be detained in prison for non-payment of the costs of the contempt (g). Yet the court in ordering his discharge will make it part of the order, that he do pay the costs of his contempt and of the motion to discharge him (h). And where a prisoner was released upon the undertaking of his solicitors to pay the costs of the application for attachment, such undertaking was enforced by the court (i). (a) Ex parte Turner and another, In re Martin, 3 Mont. D. & De G. 523; Felkin v. Lord Herbert, 10 Jur. N. S. 62; 12 W. R. 241. (b) Br. Contempts, pl. 15, cit. 22 E. IV. 33, 34; and see Er parte Martins, 9 Dowl. P. C. 194. (c) See per Erle, J., in Crawford's case, 13 Q. B. 618. (d) Garstin v. De Garston, 34 L. J. P. D. & A. 45; 4 S. & T. 73. (e) Ricketts v. Mornington, 7 Sim. 200. (f) See Carus Wilson's case, 7 Q. B. 986; Er parte Turner and another, In re Martin, supra; Felkin v. Herbert, supra. (g) Jackson v. Mawby, 1 Ch. D. 86 ; 45 L. J. 53. (h) Ibid.; and see Micklethwaite v. Fletcher, 27 W. R. 793. (i) In re Woodfin, 30 W. R. 422. CHAPTER prisoner. Where the term of imprisonment is not stated in the commitment, or is not notified in the writ of attachment, an Discharge of application for discharge must be made to the court. The application is now usually made by motion (k), formerly it was by petition (). A motion to discharge a prisoner from custody has priority over all other motions (m). Proceedings by Where a person is in contempt for having disobeyed an order of court to pay over money received by him as trustee, and the writ of attachment under which he is committed to prison contains (as now usual) a note at the foot, to the effect that under the provisions of the Debtors' Act no person shall be imprisoned for disobeying a judgment or order for payment of money or costs for a longer period than one year, at the end of a year's imprisonment it is the duty of the sheriff to discharge him without applying to the court for an order of discharge (n). But in other cases where the term of imprisonment is not stated, an application for discharge must be made to the court in the usual way, either by the prisoner himself or by counsel in his behalf. 4 & 5. By indictment; and by criminal information for contempt. In all cases in which a justice may commit an offender to prison for a contempt of court, such justice may, instead thereof, order the party to be indicted for the misdemeanour (0); for Contempt. and in some cases proceedings may be taken by criminal information; as, for instance, where the contempt consists in libellous reflections on the administration of justice (p). When reflecting words are spoken of the judges of the Superior Courts, the speaker is indictable at Common Law, whether the words relate to their office or not. With respect to inferior magistrates, such as justices of the peace, it seems to be clear, on the authorities, that abusive and defamatory words spoken of them in their absence, and which do not relate to the execution of their office, are not indictable; even although the words affect them generally in their office, as where they impute want of ability, capacity, or integrity. 66 A criminal information was granted for calling a mayor "a puppy and a fool," the words being spoken of the mayor in his wards, 21 Ch. D. 230; 51 L. J. Ch. 943. (k) Futroye v. Kennard, 2 Giff. 110. (1) See Nicholson v. Squire, 16 Ves. 260. (m) Ashton v. Shorrock, 29 W. R. 117. (n) In re Edwards, Brooke v. Ed (0) Str. 420. (p) Rex v. Watson and others, 2 T. R. 199; and see Rex v. Salisbury, 1 Ld. Ray. 341. magisterial capacity (q). But a criminal information will not be granted for words imputing malversation to a magistrate in his magisterial capacity, unless the words are uttered to or of him when in the actual execution of his office; or,'unless they directly tend to a breach of the peace (r). CHAPTER XXVIII. of Colonial Proceedings of Colonial Courts as to contempts.-If a colonial Proceedings court, in adjudicating upon a contempt, substitute an inappro- Courts as to priate mode of punishment for the offence, the order will be Contempts. set aside on appeal to the judicial committee of Privy Council in England. So, where an order was made for suspending an attorney and barrister of the Supreme Court of Nova Scotia from practising in that court, for having addressed a letter in his capacity of a suitor, to the chief justice reflecting on the judges and the administration of justice in that court; on appeal to the judicial committee of Privy Council the order was discharged, on the ground that it substituted a penalty and mode of punishment which were not appropriate and fitting for the offence. The letter, although a contempt of court, and punishable by fine and imprisonment, was written by the appellant in his individual and private capacity as a suitor in respect of a supposed grievance, and had no connection with his professional character; it was therefore not competent for the Supreme Court to do more than award the customary punishment for contempt of court (s). A judge of the Court of Queen's Bench in Lower Canada, whilst sitting alone in the exercise of the criminal jurisdiction, has, under the authority conferred upon him by the Consolidated Statutes of Canada, c. 77, s. 72, no power to pronounce a counsel in contempt for publishing letters reflecting upon the conduct of such judge, nor to impose a fine (t). The Specific Contempt must be charged, accused heard A contempt of court being a criminal offence, no person can be punished for such unless the specific offence charged against him be distinctly stated, and an opportunity given him of and the answering it. And so, in a case where a barrister engaged in in Defence. his professional duty before the Supreme Court at Hong Kong, was, without notice of the alleged contempt, or rule to show cause, and without being heard in defence; by an order of (a) Ex parte The Mayor of Yarmouth. 1 Cox, C. C. 122; and see R. v. White, 1 Camp. 359. (r) Ex parte The Duke of Marlborough, 5 Q. B. 955; 1 Dav. & Mer. 720; and see The Queen v. John Rea, 17 Ir. C. L. R. 584. (s) Re Wallace, L. R. 1 P. C. 283 ; ride Re S. B. Sarbadhicary, supra, p. 397. (t) In re Ramsay, 7 Moo. P. C. C. (N. S.) 263; L. R. 3 P. C. 427. See Rainy v. The Justices of Sierra Leone, 8 Moo. P. C. C. 47. CHAPTER XXVIII. Proceedings on that court fined, and adjudged to have been guilty of several contempts of court during the conduct of a case, in disrespectfully addressing the chief justice, such order, upon a reference by the Crown to the judicial committee, under the statute 3 & 4 Wm. IV. c. 41, s. 4, was set aside, and the fine ordered to be remitted; first, on the ground that the order was bad, inasmuch as the offences charged were not of themselves such contempts of court as legally constituted an offence; and secondly, that even if they had been so, no distinct charge of the several alleged offences was stated, and no opportunity had been given to the party accused, of being heard before passing sentence (u). Where the publisher of a colonial newspaper was committed to gaol for six months by colonial judges, for contempt of court in publishing two articles reflecting on one of the judges of the adjudications Supreme Civil Court of British Guiana; on petition to the for Contempt. Court of Privy Council in England, he was allowed to appeal, but without prejudice to the question whether there was a right of appeal or not (x). And upon argument afterwards of the preliminary question as to the right to appeal, it was held that the Supreme Court of Civil Justice in British Guiana was a court of record, and there being nothing on the face of the present proceeding as to the contempt or the punishment, which rendered it bad, the order for leave to appeal must be rescinded (y). Innocent loan containing matter scandalous of the Court. The judicial committee of the Privy Council have no jurisdiction to order the release of a person imprisoned for a contempt of the Supreme Court of Gibraltar, pending an appeal respecting the merits of a suit (2). Where the appellant had been committed to prison for conof a Newspaper tempt of court, in lending a newspaper to a friend, containing matter scandalising the Court of the Colony of St. Vincent; it was held, that as he was neither printer nor publisher of the newspaper, nor the writer of the scandalous matter, but had innocently lent the paper containing it to a friend, without knowledge of its contents, he was neither constructively nor necessarily guilty of a contempt of court (a). (u) In re Pollard (App.) & The Chief Justice of Hong Kong (Resp.), L. R. 2 P. C. 106. (x) MDermott's case, L. R. 1 P. C. 260. (y) Ibid., P. C., Dec. 1868. MS.; 38 L. J. P. C. C. 1. () Hughes v. Porral and others, 4 Moore, P. C. C. 41. (a) McLeod (App.) & St. Aubyn (Resp.), (1899) A. C. 549. 425 CHAPTER XXIX. LIBELS AND CONTEMPTS OF PARLIAMENT, AND OTHER Libellous reflections on the Proceedings of Parliament. Libels and Contempts of Members of Jurisdiction of High Court of Justice House of Lords, jurisdiction to commit for contempt. House of Commons, power to commit for contempt. Limit to time of Commitment by Par- Contempts of Colonial Legislative As- Distinction between power to punish for Contempt and power to remove CHAPTER reflections on how dealt THE same policy which prohibits seditious comments on the King's conduct and Government extends to reflections on the proceedings of the two Houses of Parliament. These bodies, Libellous so essential a part of the constitution, are at all events entitled the Proceedings to reverence and respect, on account of the great and impor- of Parliament, tant public services which they are bound to discharge. They with. have exercised from very early times, the means of repressing immediate insults and contempts of their authority, which are essential at least to their dignity, if not to their very existence; nevertheless they have been sparing in the exercise of their extensive and apparently undefined powers, and have in many instances waived their privileges and delivered over offenders to be dealt with by the Common Law. It seems to have been the policy of the courts to encourage such a proceeding; and it is no less the duty of juries to pay a ready attention when proof of such insults is submitted to them. A libel on the character of a member of Parliament in his Libels and Contempts of office as such, is not only cognizable as a breach of the privi- Members of leges of the House, but is also actionable at Common Law at either House the suit of the member so libelled. And it is an undoubted contempt and breach of privilege to impute to any member of Parliament as such, that he takes bribes, preferments, place, or office, with a view to his particular vote or general conduct. of Parliament. In the case of The King v. Owen (a) the defendant was tried Jurisdiction of (a) Mich. 25 Geo. II. K. B. MSS. Digest Law of Libels, 67; and ride High Court of The King v. Rayner, 2 Barnard. K. B. Justice as to 293, Digest Law of Libels, 125. |