THE subject of contempt of court, and especially of the punish ment for contempt and the process by which punishment is inflicted, has been much discussed of late years. In the course of this discussion it has not always been kept clearly in mind that acts of different kinds have been grouped under this single heading of contempt of court, and as a result much has been urged on each side that might be largely modified by true apprehension of the legal facts. It is proposed in this article to distinguish between different kinds of contempt, and to suggest in connection with each the proper limits of action of the court in punishing. The word " contempt" is a very old word to cover any act done in violation of a direct order of the king or of any governmental process. From the most ancient times any insult to the king or to his government was punishable as a contempt. Thus, in the time of Edward III persons were punished for contempt for going armed into the king's palace, and for contumaciously disputing the king's title as patron of a priory.1 In the early years of James I it was held to be a heinous offense against the king to raise a false rumor that he intended to grant toleration to papists.2 And in the fourth year of his reign two Catholic members of Parliament were attached for contempt to the king in not coming to Parliament at the time the gunpowder treason was intended. These are some early examples of a class of cases, never very numerous, where a direct insult to the king was dealt with as a contempt 2 Cro. Jac. 38, Moore 756. 1 Oswald, Contempt, 1, 2. 8 Lord Sturton's case, Noy 102. either by indictment or by mere attachment, like the process issued by a court for contempt of itself. It was not to the king alone that contempt was punishable. One case, at least, is on record where a contempt of the bishop by disturbance in church was punished.1 Contempt of Parliament, also, was dealt with, and either house of Parliament could commit for contempt of itself. We even have a reference to contempt of the king's officers.3 But of course the commonest and most important of all contempts in the eye of the law is the contempt of court. Contempt of the court is contempt of the lord of the court. Thus it was contempt of the admiral, and so of his court, to sue for a maritime cause in the king's court either of chancery or of common law, or in the courts of the church or of the city of London. So in a manorial court a contempt is contempt of the lord. In the well-known case of the committal of Prince Henry for contempt by Chief Justice Gascoyn, the learned Chief Justice said, "I keep here the place of the king, your sovereign lord and father, to whom ye owe double obedience." 5 Any act which interferes with the operation of the court itself, while engaged in the trial of cases, or which renders the court less able properly and with dignity to try cases, is a contempt of court entirely similar in kind to the contempt of the king by insults offered to him, or the contempt of Parliament by disturbance made therein. The typical case of this sort is actual disturbance made in the court itself which interferes with the process of litigation. Of such a sort was Judge Terry's contempt in the Hill divorce suit. In that case while the cause was being tried in a circuit court of the United States, the libellant, one Sarah Althea Terry, was guilty of misbehavior in the presence of the court; whereupon the court ordered that she be removed by the marshal. Her husband, an attorney of the court, assaulted and beat the marshal to prevent his carrying out the order of the court. This was done in open court, in the presence of the judges. Such an 1 Carleton v. Hutton, Palm. 424. 2 Murray's Case, 1 Wils. K. B. 299 (1751). 3 18 Selden Soc. Pub. (Borough Customs), 107. 4 11 Selden Soc. Pub., lxvii, lxviii. 5 Gorham v. Grainger, ibid., lxviii. 6 Sandiford v. Fidele, ibid., lxvii. 7 64 Leaving their business undone, and in great contempt of the lord and of his bailiffs." 2 Selden Soc. Pub., 127. 8 Ex parte Terry, 128 U. S. 289. act is obviously a contempt which every court has inherent power to punish summarily. A similar contempt was that dealt with in Ex parte Wall.1 In that case the defendant with other persons riotously took from a jail a person accused of crime, during an intermission of the court which was trying him, and hung him from the limb of a tree directly in front of the court-house door, through which the judge passed on his way into court after intermission. This act was not only unlawful; it was a direct insult to the court itself. It was, as the Supreme Court said, perpetrated with audacious effrontery in the virtual presence of the court. These acts are direct insults to the court itself in its presence. Any act, however, which directly obstructs the course of justice, though done outside the court, is equally a contempt of court. A typical instance of this sort of contempt was the action of the claimant and his friends in the Tichborne case. The Tichborne claimant, having failed in his action to get possession of the Tichborne estates, was indicted for perjury and was about to be tried at the bar of the Queen's Bench. He and his friends made public addresses in various parts of England, stating his side of the case, and denouncing the judges who were about to try the indictment as unfair and prejudiced. Several of the claimant's supporters were committed and fined for contempt of court as a consequence of these proceedings.2 In the Skipworth case3 Judge Blackburn thus laid down the rule: "When an action is pending in the court and anything is done which has a tendency to obstruct the ordinary course of justice or to prejudice the trial, there is a power given to the courts by the exercise of a summary jurisdiction to deal with and prevent any such matter which should interfere with the due course of justice, and that power has been exercised, I believe, from the earliest times that the law has existed." A third class of active contempts of court consists in any interference with persons or property which are in the hands of the court. Such, for instance, is interfering with a receiver in the performance of his duty, or marrying a ward of court without 1 107 U. S. 265. 2 Regina v. Onslow, L. R. 9 Q. B. 219. 3 Regina v. Skipworth, L. R. 9 Q. B. 230. 4 Modern instances of this sort where the extent of this power was carefully considered may be found in Rex v. Tibbits, [1902] 1 K. B. 77; Globe Newspaper Co. v. Com., 188 Mass. 449. 6 Langford v. Langford, 5 L. J. (N. s.) Ch. 60. license of the court. Such contempts of court as have been described may be briefly summarized as committed by any act which insults the court or directly prevents it from pursuing its will in administering justice. It has been generally assumed that all contempts of court are of the same sort, and consist in this disrespect to the representative of the king and interference with his action in office; but it is impossible either to understand the law of contempt or to deal satisfactorily with the modern problems that have arisen in fact, it is impossible for a court to exercise properly the extraordinary power of punishment for contempt - without noticing that contempts of court, so called, are of two kinds, entirely different in origin. The so-called contempt of court which consists in mere disobedience to an order of the court is entirely different, both in its nature and in its origin, from that active contempt, whether in or out of court, which has been considered. 66 From the earliest times a refusal to obey an order of the king or of his officer, formally and expressly directed to a subject, has been regarded as a contempt. This, doubtless, was deemed a breach of allegiance. Contemptus brevium" was declared by the laws of Henry I2 to be an offense subjecting a person guilty of it to amercement. In the time of Henry II it was laid down that if a tenant duly summoned in the court was absent, the king or his justices might at their pleasure punish him for his contempt of court. So again, if the demandant in certain cases failed to produce his lord in court, "the body of the demandant himself should be attached on account of his contempt of court, and thus he shall be destrained to appear in court." This was equally true in the inferior courts. Thus it was contempt of the lord of a manorial court for a person owing allegiance to the court to depart from it without answering a complaint. And similarly a burgess was guilty of contempt in failing to appear at the proper time before the borough court. Among the acts of contempt of the Arches court was contempt "in non parendo mandatis." And further, as we have seen, it was contempt of the admiral's court to refuse to sue a maritime cause in that court.1 This contempt by mere disobedience was often joined, or was alleged to be joined, with an act of dishonor to the lord. Thus, where the contempt consisted in disobedience to the king's writ, a contemptuous treatment of his seal was usually charged. So, for instance, in a complaint to the chancellor in the time of Henry IV it was recited that a writ of injunction had been granted against suing at common law, "which writ, when a certain messenger delivered it to the said J. H. on behalf of our said Lord the King, . . . he would not open his hands to receive the same, and did no reverence to it, as he ought to every royal mandate; but he threw it under his feet where it lay for some time vilely trampled upon, until others took it up and placed it on the font of the said Church; and of this contempt committed by the said J. H. the said suppliant doth vouch to record J. C. . . . and besides this the said J. H. doth not cease still to sue the said suppliant [notwithstanding] the said royal mandate." 2 But it had very early come to be established that the mere disobedience to a writ under the king's seal was in itself contempt; so in the time of Henry IV it was alleged that a sheriff had been ordered by a writ of injunction to stay execution; nevertheless the said sheriff would not stay the execution, contrary to the tenor of the writ, and in contempt of our lord the king. In one case the chancellor was informed that one Richard Goldsmith received certain writs and letters under the king's privy seal, "in great contempt and despite and would do nothing in compliance therewith."4 And further, complaints were made to the king's council in Star Chamber for contemptuously disobeying privy seals of the king.5 3 Several instances of contempt of this sort grew out of licenses to English subjects to live abroad. Especially during the stormy times of the Reformation, Protestant or Catholic subjects, as the case might be, secured license to live abroad for a limited time, and there, as it was claimed, confederated with the enemies of the sovereign. In one such case Queen Mary sent over her letter under her privy seal, calling upon one Bartue to return to England; but Bartue's servants intercepted and maltreated the Queen's messenger so that he could not serve the letter. Upon a return to 1 6 Selden Soc. Pub., lxviii. 8 Ibid., 68. 2 10 Selden Soc. Pub., 61. 5 16 Selden Soc. Pub., 112 (1500); Ibid., 208 (1510). |