Contempt Of Court

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Title:     Contempt Of Court
Author: Augustine Birrell [More Titles by Birrell]

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.

[The end]
Augustine Birrell's essay: Contempt Of Court

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