PART IV.

CHAPTER V.

press, of the judicial determinations of our courts of justice is not interdicted; but mere invective or abuse, and still more the imputation of false, corrupt, or dishonest motives, to those who are engaged in the administration of justice, is punishable as a libel.

In a case of this sort, where the proprietor and printer of a newspaper were tried upon an information filed by the Attorney-General, for a libel upon Le Blanc, J., and the jury before whom the captain of a merchant-ship had been tried for murder at the Old Bailey, Grose, J., said: “It certainly was lawful with decency and candour to discuss the propriety of the verdict of a jury, or the decisions of a judge; and if the defendants should be thought to have done no more in this instance, they would be entitled to an acquittal; but, on the contrary, they had transgressed the law, and ought to be convicted, if the extracts from the newspapers set out in the information contained no reasoning or discussion, but only declamation and invective, and were written not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into hatred and contempt the administration of justice in the country."(a)

In similar language Fitzgerald, J. directed the jury, in dealing with a seditious libel which related, amongst others things, to the case of certain men who had been tried and executed for murder: (b) "The defendant had a right to discuss fairly and bonâ fide the administration of justice as evidenced at this trial. It is open to him to show that error was committed on the part of the judge or jury; nay, further, for myself I will say that the judges invite discussion of their acts in the administration of the law, and it is a relief to them to see error pointed out, if it is committed; yet, whilst they invite the freest discussion, it is not open to a journalist to impute corruption." (c)

According to

(a) Rex v. White and another (1 Camp. N. P. 359). the report, the libel in this case affirmed the prisoner to have been guilty of murdering one of his crew, and in a gross and abusive style censured the judge and jury for acquitting him. The defendants having been found guilty, were sentenced to three years' imprisonment. (b) Reg. v. Sullivan (11 Cox Crim. Cas. 57).

(c) A lieutenant in the royal marines having, in the year 1743, been sentenced by a court martial to fifteen years imprisonment, brought an action against the president of the court martial, and recovered 1000!. damages, and, in pursuance of what fell from the judge at the trial, commenced actions also against the other members of the court martial who had passed the sentence, and they were arrested by capias at the breaking up of a court martial against another officer, of which they were also members. This latter court martial then passed certain resolutions reflecting on Sir John Willes, Chief Justice of the Common Pleas, which

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CHAPTER V.

Libel published

not sitting.

Though the libel be published whilst the court is not sitting, and at a place somewhat distant, a court of record has still the power of punishing by commitment. (a) The publisher and the writer of an article in a newspaper which when court is reflected intemperately on certain proceedings of the Court of Chancery of the Isle of Man, were committed to prison for the contempt, though the court was not sitting at the time of publication, and the publication took place in Douglas, ten miles distant from where the court sat.(b) "It is objected," said Patterson, J., "that the court could have no general power of commitment for a libel published out of court some time before. This point has not been expressly decided upon. In Van Sandau's case(c) the libel appears to have been published both in court and out of it. In Rex v. Almon (d) there was a very learned judgment by Chief Justice Wilmot, which he intended to deliver, though it was not delivered in fact, the case having dropped. He satisfactorily shows that a court of record has power to punish by commitment for contempt, a libel published while the court is not sitting." And Erle, J., added: "The commitment here was for a contempt in publishing, while the court was not sitting, and perhaps at some distance of time and place, a libel on the proceedings of the court. In the elaborate judgment to which my brother Patterson has referred, it is shown that such a publication may have a strong and immediate tendency to paralyse the proceedings of the court. Such cases may easily be conceived; the propriety of the decision in the particular case is a question for the court itself."

An information was granted in 1788, against the members of the corporation of Yarmouth, for having entered upon their books an order stating "that the assembly were sensible that Mr. W. [against whom an action had been

were laid before the King. Upon this the Chief Justice caused every member of the court to be taken into custody, and was proceeding to assert and maintain the authority of his office, when a written and contrite submission signed by all the members of the court, stayed the progress of justice. The submission transmitted to the Lord Chief Justice was ordered to be read in open court, and to be registered in the Remembrancer's office. It also appeared in the London Gazette, “a memorial (as observed by the Lord Chief Justice) to the present and future ages, that whoever set themselves up in opposition to the laws, or think themselves above the law will, in the end, find themselves mistaken" (C. Pl. M. S. 1743; Holt. L. L. 158, 159.)

(a) Crawford's case (13 Q. B. 613).

(b) Ib.

(c) Van Sandau v. Turner (6 Q. B. 773); Ex parte Van Sandan

(1 Phill. 445, 605).

(d) Wilmot's Notes and Opinions, 243, 252, 291.

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CHAPTER V.

Publication by

brought for a malicious prosecution, and a verdict returned
for 30001. damages, which the court refused to disturb] was
actuated by motives of public justice, of preserving the
rights of the corporation to their admiralty jurisdiction, and
of supporting the honour and credit of the chief magis-
trate; and therefore they vote him the sum of 23001.”(a)
"Nothing," said Buller, J., "can be of greater importance
to the welfare of the public than to put a stop to the
animadversions and censures which are so frequently made
on courts of justice in this country. They can be of no
service, and may be attended with the most mischievous con-
sequences. Cases may happen in which the judge and the
jury may be mistaken: where they are, the law has afforded
a remedy, and the party injured is entitled to pursue every
method which the law allows to correct the mistake. But
when a person has recourse, either by a writing like the
present, by publications in print, or by any other means,
to calumniate the proceedings of a court of justice, the
obvious tendency of it is to weaken the administration of
justice, and in consequence to sap the very foundation of
the constitution itself.
They say that W. was
actuated by motives of public justice,' &c. But the judge
and jury who tried the cause, confirmed as to their opinion
by the Court of Common Pleas, have said that, instead of
his having been actuated by motives of public justice, or
by any motives which should influence the actions of an
honest man, he had acted from malice. These opinions are
not reconcilable; if the one be right, the other must be
wrong. It is, therefore, a direct insinuation that the court
had judged wrong in all they have done in this case, and it
is therefore clearly a libel on the administration of justice.

. The defendants have, indeed, said that they never meant to reflect on the public justice of the country; but that alone is no answer to this application. Where particular allegations are made in applying for an information, some answer must be given. If the thing charged be capable of different explanations, it is fair to take the defendants' explanation in their affidavits that they did not intend anything wrong; but if it be only capable of one interpretation, we are not to be guided by such a general answer. I am of opinion that the information should go against all." (b)

A solicitor in a bankruptcy proceeding was held guilty of person engaged a gross contempt of court in publishing a pamphlet contain

in suit.

Rex v. Watson (2 T. R. 199).

(b) See also the remarks of Ashurst and Grose, JJ., in the same case.

ing insulting observations on the Court of Review, and on certain parties engaged in litigation before it. The pamphlet spoke of the judgment of the Chief Judge in Bankruptcy (Sir J. Knight Bruce) as "an elaborate production, wholly beside the merits of the case, free from all allusions to the facts or statements in the affidavits, which it was but charity to suppose were never referred to by the judge; free from all denunciations against fraud; and that the only object of it seemed to have been to deter solicitors from every attempt to expose and correct abuses in bankruptcy." The Judge of the Court of Review (Sir G. Rose) considered this to be a gross and scandalous contumacy of the learned judge, and a gross libel upon him, which ought to be visited as a contempt of that court, and committed the writer to custody, from which he was released on humbly apologising and paying all the costs incidental to the application.(a)

A barrister and member of Parliament who wrote a letter in threatening and insulting terms to a Master in Chancery, before whom he had appeared in support of a petition presented by himself and others, the tendency of the letter being to induce the master to alter the opinion he was supposed to have formed upon the case, was committed by the Lord Chancellor (Cottenham) to the Fleet during pleasure.(b) "The power of committal," said his Lordship, "is given to courts of justice for the purpose of securing the better and more secure administration of justice. Every writing, letter, or publication which has for its object to divert the course of justice is a contempt of the court. It would be strange, indeed, if the judges of the court were the only persons not protected from libels, writings, and proceedings, the direct object of which is to pervert the cause of justice. Every insult offered to a judge in the exercise of the duties of his office is a contempt; but when the writing or publication proceeds further, and when, not by inference, but by plain and direct language, a threat is used, the object of which is to induce a judicial officer to depart from the course of his judicial duty, and to adopt a course he would not otherwise pursue, it is a contempt of the very highest order."(c)

(a) Ex parte Turner (3 Mont. D. & De G. 523, 551, 558). (b) Mr. Lechmere Charlton's case (2 My. & Cr. 316).

(c) Ib. 339. Lord Abinger, C.B., and Alderson, B., seem to have taken a different view of the mode of dealing with insulting letters addressed to a judge, touching a matter under consideration. "I can only say," said Lord Abinger, "that if I received such a letter I should not consider myself at liberty to commit the writer." To which

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CHAPTER V.

PART IV.

The writer of a letter to Lord Hardwicke relative to a CHAPTER V. threatened suit, and inclosing a bank-note, was held guilty of contempt; (a) and so was the writer of a letter to Chief Baron Parker, making mention of a cause depending in the Court of Exchequer, and containing a scandalous offer to his lordship.(b)

A threatening letter sent to one of the parties or witnesses in a suit is as much a contempt of court as one addressed to a judge or officer of the court. (c)

Lord Erskine, C., committed to prison the committee of a lunatic and his wife for having published a pamphlet, with a dedication to the Lord Chancellor, reflecting upon the conduct of certain persons acting, in the management of the affairs of a lunatic, under orders from the Court of Chancery. His lordship committed also the printer, and held that ignorance of the contents of the pamphlet would not excuse him.(d)

A judge of assize (Blackburn, J.), having ordered part of the court to be cleared on account of the noise made by the persons assembled there, the High Sheriff of the county caused a placard, signed by him, to be posted up in the town opposite the court, in which he recorded his protest against "this unlawful proceeding" of the learned judge, and said "I have given directions that the court shall be opened again to the public according to the custom and the law. All persons, so long as they conduct themselves with decorum, have a lawful right to be present in court; and I hereby prohibit my officers from aiding and abetting any attempt to bar out the public from free access to the court." For this contempt the High Sheriff was fined 5001. by Cockburn, C.J., who was sitting in the next court. (e).

Alderson, B., added: "There would be a great many committals if such a course were pursued by the judges." "Do you mean to say," asked Lord Abinger of counsel, "that one of the judges has the power to fine a man for sending him a silly letter, or an impudent letter about any matter that he has decided? I can only say I should be very much afraid of exercising it: (See Rex v. Faulkner, 2 Mont. & Ayr. 321, 322).

(a) Martin's case (2 Russ. & Myl. 674).

(b) Macgill's case (2 Fow. Ex. Prac. 404).

(c) Smith v. Lakeman (26 L. J. 305, Ch.); Shaw v. Shaw (31 L. J. Prob. 35; 6 L. T. N. S. 477; 2 S. & T. 515); Re Mulock (33 L. J. Prob. 205; 10 Jur. N. S. 1188).

(d) Ex parte Jones (13 Ves. 237).

(e) In re the High Sheriff of Surrey (2 F. & F. 237). The same gentle-, man having persisted in addressing the grand jury in court after a prohibition from the presiding judge, was fined 500l. and threatened with commitment if he did not desist. This fine was remitted on his reading a written apology in court: (1b. 234.)