Before concluding this chapter, may properly be noticed the method, immeProceeding by morially used by the superior courts of justice, and generally by attachment for courts of record, of punishing contempts by attachment, and

contempt of

court.

the subsequent proceedings thereon.

The contempts thus punished are either direct, which * openly [* 364] insult or resist the powers of the court, or the persons of the judges who preside there; or else are consequential, which (without such gross insolence or direct opposition) plainly tend to create an universal disregard of their authority. The principal instances, of either sort, usually punished by attachment (z), are as follow:-1. Those committed by inferior judges and magistrates: by acting unjustly, oppressively, or irregularly, in administering such portions of justice as are intrusted to their distribution; or by disobeying the queen's writs issuing out of the superior courts, by proceeding in a cause after it is put a stop to or removed by writ of prohibition, certiorari, error, supersedeas, and the like. For, as the superior courts (and especially the court of queen's bench) have a general superintendence over all inferior jurisdictions, any corrupt or iniquitous practices of subordinate judges are contempts of that superintending authority, whose duty it is to keep them within the bounds of justice. 2. Those committed by sheriffs, bailiffs, gaolers, and other officers of the court: by abusing the process of the law, or deceiving the parties, by acts of oppression, extortion, or collusive behaviour, or by culpable neglect of duty. 3. Those committed by counsel (a) or by attornies and solicitors, who are officers of the respective courts: involving fraud and corruption, injustice to their clients, or other dishonest practice. For the malpractice of the officers reflects some dishonour on their employers; and, if frequent or unpunished, might create among the people a disgust against the courts themselves. 4. Those committed by jurymen, in collateral matters relating to the discharge. of their office: such as making default when summoned; refusing to be sworn, or to give any verdict; eating or drinking without the leave of the court, and especially at the cost of either party; and other misbehaviours or irregularities of a like kind: but not in the mere exercise of their judicial capaci[* 365 ] ties, as by giving a false or erroneous verdict (b). 5. Those committed by witnesses, by making default when summoned, refusing to be sworn, or on examination to answer a proper question (c), or prevaricating in their evidence when sworn. 6. Those committed by parties to any suit or proceeding before the court: as by disobedience to a rule or order, made in the progress of a cause; by non-payment of costs awarded by the court upon motion; or by nonobservance of the award of an arbitrator or umpire, the submission having been made a rule of court (d). Indeed the attachment for a contempt of this species, and especially for non-payment of costs or non-performance of an award, is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for contempt of the authority of the court. And therefore it has been held that such a contempt, and the process thereon, being properly the civil remedy of an individual for a private injury is not released or affected by a general act of pardon. And upon a similar principle, obedience to a rule of court may by

(z) 2 Hawk. P. C. bk. ii. ch. 22.

(a) Ex parte Pater, 5 B. & S. 299.

(b) See Bushell's Case, and Note thereto, Broom's Constitut. L. pp. 120, 144.

(c) Reg. v. Charlesworth, 2 F. & F. 332–334. (d) See Russell on Arbitr. 3rd ed., chap. 6.

statute 10 Geo. 3, c. 50, s. 5, be enforced against any person having privilege of parliament by the process of distress infinite. 7. Those committed by any persons, including peers, when accompanied with violence, such as forcible rescue and the like (e); or when they import a disobedience to the great prerogative writs, of prohibition, habeas corpus (ƒ), and the rest. Some of these contempts may arise in the face of the court; as by rude and contumelious behaviour; by obstinacy, perverseness, or prevarication; by breach of the [*366] peace, or any wilful * disturbance whatever (g): others in the absence of the party; as by disobeying or treating with disrespect the queen's writ, or the rules or process of the court; by perverting such writ or process to the purposes of private malice, extortion, or injustice; by speaking or writing contemptuously of the judges, acting in their judicial capacity; by printing a false account (or even a true one in disobedience to an order of the court (h)) of a cause there depending; and by any thing, in short, demonstrating a gross want of that regard and respect, which when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people.

The process of attachment, for these and the like contempts, must necessarily be as ancient as the laws themselves. For laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power therefore in the supreme courts of justice to suppress any such contempt, by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly we find it actually exercised as early as the annals of our law extend. And though a very learned author (i) seems inclined to derive this process from the statute of Westm. 2, 13 Edw. 1, c. 39, (which ordains, that in case the process of the king's courts be resisted by the power of any great man, the sheriff shall chastise the resisters by imprisonment, "a quá non deliberentur sine speciali præcepto domini regis:" and if the sheriff himself be resisted, he shall certify to the courts the names of the principal offenders, their aiders, consenters, commanders, and favourers, and by a special writ judicial they shall be attached by their bodies to appear before the court, and if they be convicted* thereof they shall be punished at the king's pleasure, *367] without any interfering by any other person whatsoever), yet he afterwards more justly concludes, that it is a part of the law of the land; and, as such, is confirmed by the statute of magna carta.

If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judge (j), without any further proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him (k); or, in very flagrant instances of contempt, the

(e) Styl. 277; 2 Hawk. P. C. 152; Cro. Jac. 419; Salk. 586.

(f) 4 Burr. 632; Lords' Journ. 7 Feb., 8 June, 1757.

(g) Ante, p. 160.

(h) R. v. Clement, 4 B. & Ald. 218.

(i) Gilb. Hist. C. P. ch. 3.

(j) Staund. P. C. 73, b.

(k) Styl. 277. See Reg. Pr. Hil. T. 1853, r 168.

attachment issues in the first instance (7); as it also does, if no sufficient cause be shown to discharge, and thereupon the court confirms and makes absolute the original rule. This process of attachment is merely intended to bring the party into court: and, when there, he must either stand committed, or put in bail, in order to answer upon oath to such interrogatories as shall be administered to him, for the better information of the court with respect to the circumstances of the contempt. These interrogatories are in the nature of a charge or accusation, and must by the course of the court be exhibited within the first four days (m): though if any interrogatory be improper, the defendant may refuse to answer it, and move the court to have it struck out (n). If the party can clear himself upon oath, he is discharged; but, if perjured, may be prosecuted for the perjury (o). If he confesses the contempt, the court will proceed to correct him by * fine, or imprisonment, or both (p); and [* 368] if he wilfully and obstinately refuses to answer, or answers in an evasive manner, he is then clearly guilty of a high and repeated contempt, to be punished at the discretion of the court.

It cannot have escaped the attention of the reader, that this method of making the defendant answer upon oath to a criminal charge, is not agreeable to the genius of the common law; and seems to have been derived to our courts of law through the medium of courts of equity. For the whole process of a court of equity, in the several stages of a cause, and finally to enforce its decrees, was, till the introduction of sequestrations, in the nature of a process of contempt; acting only in personam and not in rem. There, however, after the party in contempt has answered the interrogatories, such his answer may be contradicted and disproved by affidavits of the adverse party: whereas, in a court of law, the admission of the party to purge himself by oath is more favourable to his liberty, though perhaps not less dangerous to his conscience: for, if he clears himself by his answers, the complaint is totally dismissed. And, with regard to this singular mode of trial, thus admitted in one particular instance, I shall only for the present observe, that as the process by attachment in general appears to be extremely ancient (q), and has in more modern times been recognised by parliament (r), so the method of examining the delinquent himself upon oath with regard to the contempt alleged, is at least of as high antiquity (s), and by long and immemorial usage has become the law of the land. (726)

[* 369]

*CHAPTER XVII.

SUMMARY PROCEEDINGS AND CONVICTIONS.

WE are next, in carrying out our plan, to take into consideration the proceedings in criminal courts for the punishment of offenders, and shall here accordingly speak of proceedings with a view to summary conviction, and afterwards of those which result in the verdict of a jury and judgment thereupon. In summary proceedings there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the law has appointed for his judge.

I. Of this summary nature are trials of all such offences and frauds against the laws of the excise (a), and other branches of the revenue, as may be I. Frauds against inquired into and determined by the commissioners of those revenue laws. respective departments, or by justices of the peace.

II. Before justices.

II. Another branch of summary proceedings is that before justices of the peace who, out of their general sessions, have, for the public convenience, been entrusted with the hearing and determining of many matters, criminal or quasi-criminal, in their nature. The practice long since (b) adopted by the legislature of granting to justices thus acting a power of summary conviction has greatly prevailed in modern times, and [*370] caused much innovation on the mode of procedure in criminal cases, viz., trial by jury, known to our customary law.

*

The summary jurisdiction exercised by justices out of sessions being essentially the creature of statute (c), it follows that whenever a question arises as to the existence of such a jurisdiction, or as to the mode in which it should be exercised, reference must be made to the particular act of parliament, by virtue of which it is assumed, nor must the words there found be strained or extended so as to give jurisdiction beyond their ordinary and natural signification (d).

The magisterial powers referred to are exercised at petty sessions (e) or by two justices sitting together, which, in fact, constitutes a petty session, or by one justice, the rule being that an authority given by statute to two justices. cannot be executed by one, but that an authority so given to one justice may be executed by a greater number. The magistrates at the metropolitan police courts and the lord mayor or an alderman of the city of London, as well as the stipendiary magistrates (ƒ), having in most cases power within the limits of their respective jurisdictions to do alone whatever is authorised to be done by one or more justices (g).

(a) See Bateman's Excise Officer's Manual, 3rd ed., p. 493, et seq.

(b) When this practice was first adopted it is not easy on account of the ambiguous wording of some of the older statutes to determine. Paley on Conv., 5th edit., p. 5, et seq., where the subject is discussed. (c) Paley Conv., 5th ed., p. 16.

(d) One reason for this being that all pow

ers which may be exercised in restraint of liberty should be strictly pursued. Bracy's Case, 1 Salk. 348.

(e) See stats. 9 Geo. 4, c. 43; 6 Will. 4, c. 12; 12 & 13 Vict. 6. 18.

(f) See stat. 26 & 27 Vict. c. 97.

(g) 11 & 12 Vict. c. 43; ss. 33 & 34; 21 & 22 Vict. c. 73; 2 & 3 Vict. c. 71, s. 14; 3 & 4 Vict. c. 84.

Summary proceedings before a justice of the peace, which are now for the most part regulated by the statute 11 & 12 Vict. c. 43 (h) commence with the laying of an information, or making a complaint, forming respectively *the groundwork of a conviction, or an order (i), which need not be [*371] substantiated by oath or affirmation unless some particular statute otherwise require, or unless where in the case of an information a warrant to apprehend the defendant is in the first instance to be issued by the justice as hereinafter mentioned (k). No objection can be taken to the complaint or information for want of form (1). Nor as regards an information does the statute of 11 & 12 Vict. require that it shall be in writing, though the practice is so to lay it. It is moreover expressly enacted that the complaint upon which to found an order for the payment of money or otherwise need not be in writing, unless required to be so by the particular act of parliament upon which such complaint is framed (m). The complaint must, however, be for one matter and the information must be for one offence only, and every complaint or information may be made or laid by the complainant or informant in person, or by his counsel or attorney or any other person authorised by him (n).

If no time be specially limited by statute for making the complaint or laying the information, such complaint must be made and such information laid within six calendar months from the time when the matter thereof respectively arose (0).

*The complaint having been duly made or the information laid [* 372] before the justice, he will issue a summons stating shortly the matter of such information or complaint, and requiring the attendance before him of the person named therein as defendant, and this summons will be served (p) upon the defendant by a constable, and if not obeyed may be followed up and enforced by warrant (q); or upon oath or affirmation of due service of the summons the justice may proceed ex parte to hear the information or complaint, and to adjudicate thereon (r).

Further, where an information has been laid for an offence punishable on conviction, the justice before whom it is laid may, if he think fit, upon oath or affirmation being made before him substantiating the matter of such information, instead of issuing a summons, issue in the first instance his warrant for

As to the jurisdiction of borough justices, see 5 & 6 Will. 4, c. 76.

(h) This act does not however extend (inter alia) to any warrant or order for the removal of a poor person chargeable to a parish; nor to any complaints or orders made with respect to lunatics, or the expenses incurred for their maintenance; nor to proceedings under any of the statutes relating to the excise, customs, stamps, taxes, or post-office; nor to complaints, orders, or warrants in matters of bastardy made against the putative father of a bastard child; except such provisions as relate to the backing of warrants for compelling the appearance of such putative father, or warrants of distress, or to the levying of sums ordered to be paid, or to the imprisonment of a defendant for non-paypayment of the same; nor to proceedings