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civil actions, his body was held and frequently dismembered or deprived of life for the benefit of the sovereign. Imprisonment for debt was universally practiced. Not until the days of George II was a minimum of a few shillings established by statute, and the arrest and imprisonment on meyne process was not abolished until 1835, and imprisonment on final process was not abolished in England until 1869. Similar action was taken in this country at about the same period. This whole mediaeval conception of indebtedness, and mode of compelling satisfaction has almost completely vanished. At the present day imprisonment for debt or for private wrong-doing is abhorrent to every civilized man. The creditor is afforded every opportunity to exhaust the property, real and personal, of the debtor, down to a minimum, supposed to be necessary for the preservation of life, in case of married men. But the body of the debtor or wrong-doer is too sacred to be pledged or taken by any other man.

That the modern conception is vastly superior to the ancient one must be conceded by every reasonable man. The ancient practice was a relic of barbarism, whose long endurance emphatically illustrates how slowly legal conceptions change, and how difficult it is to bring about a reform in legal procedure.

Conceding the superiority of the modern theory of debtor and creditor it is hard to justify the modern use of the summary process of contempt in cases of injunction and other violations of the law. Its use to prevent crime is hardly justified, either historically, philosophically or by its practical success.

In the Court of Chancery, which was a court of inferior jurisdiction and of comparatively recent origin on its Extraordinary, or English, side in comparison with the courts of common law, the process of attachment developed as a purely civil process. But it developed to a much more elaborate degree than in the courts of law. In that court the original writ was a subpoena or summons, which did

not permit the plaintiff to arrest the defendant at once. But on failure of the defendant to answer the summons, an alias, then a pluries and after that an attachment issued, the defendant then being in contempt for his failure to appear and answer the plaintiff's bill. Not in contempt of the court, be it noted, but in contempt of the Great Seal. After the attachment a fifth writ, known as the atachment with proclamation, was issued; after that a writ known as a sergeant-at-arms; after that a writ called a sequestration, which was still a meyne process, and was not intended to be levied; after that came the writ known as a writ of rebellion. All these several processes were known as processes of Attachment or Contempt. After the plaintiff had secured his decree by means of these several writs and processes he was entitled, in cases involving the right to the possession of real estate, to a writ known as the writ of assistance, a writ used in certain injunction cases, and perhaps in other cases somewhat as equivalent of the common law writ of restitution.10a

These various processes in the Court of Chancery were strictly civil in their nature, the Court of Chancery having no criminal jurisdiction whatsoever. These processes were made necessary by the fact that the plaintiff could not proceed in his suit unless he could compel the defendant to answer his bill of complaint. If the defendant was stubborn enough to "sit out the contempt," as it was called, by remaining in custody of the jailer of the Fleet prison the plaintiff could get nothing from him until he proceeded to the writ of sequestration, and by that writ he could accomplish no more than putting the defendant's property into the hands of a receiver of the Court of Chancery."

An examination of the early as well as the late chancery suits in England prior to the beginning of the Nineteenth Century, as well as the chancery suits in Colonial America,

10a See Dove v. Dove (1873), 21 Eng. Reps. Reprint 411; 2 Dan. Ch. Pr., p.; Hook v. Ross, 1 Hen. &

Mun. (1807), 316-319; Rickard v.
Schley, 27 W. Va. 617-625.

11 2 Maddock Chan. 254, citing Sir J. Read's case.

12

discloses the fact that from first to last the processes of attachment for contempt in chancery were purely civil in their nature. The first five of those above enumerated were issued as of course by the clerks in chancery.. An order was not even proper in reference to them12 and the cost of it would be charged to the applicant and the order set aside on motion of the defendant. Even the writ of sequestration, as a meyne process, was not intended to be served, but was an intermediate step in the suit to enable the plaintiff to proceed with his cause. No little confusion was caused in the Court of Chancery if the sequestrators on meyne process took charge of the defendant's property, because this necessitated an account and involved great expense. This writ was first introduced, we are told, by Sir Nicholas Bacon in the reign of Queen Elizabeth."

I can find few suggestions in any of the chancery cases before the end of the eighteenth century of anything criminal in the process of contempt. Even the breach of an injunction was treated as a civil or ordinary contempt. "The effect of a committal for a breach of injunction," Daniel tells us," "is usually that of retaining the offender in prison until he submits by paying the adverse party his costs."

In the case of Robinson v. Lord Byron, in 1788,15 we find the court discussing the question of what is to be done with a defendant who violates an injunction. The question was evidently a somewhat novel one. The old cases were looked up. The practice in such cases was set out. It seems that the goods or lands of the defendant are to be sequestered or held by a receiver, and his body is to be kept in custody until he purges the contempt by complying with the order of the court. If he has taken or injured the property of the plaintiff, he must restore the property or make

12 Dove v. Dove, supra.

13 4 Inst. 84, 21 E. R. R. 435; But see also 2 Maddock Chan. 254, where it said that the innovation was introduced by Lord Coventry in the

VOL. L.

25

case of Sir. J. Read, who refused to
pay duty on 10,000, which he held
in an iron chest.

14 3 Ch. Pr. 375, 1st ed.
15 21 E. R. R. 506.

good the injury. When this has been done he is entitled to move the court as of right for the discharge of the rule against him, and the motion is always granted on payment of costs. There is no fine nor penalty levied upon him in a punitive way. Such was the settled and practically the invariable course of procedure. Dozens of cases may be found in the old reports, in which the defendant, upon filing his answer and paying the costs, is discharged from contempt.

In the early case of Sedgwick v. Redman,16 1559, we find an attorney attached for violation of an injunction against proceeding with an action at law. It appears that the attorney secured judgment in his action, issued a writ of fiera facias, and sold the property. He was ordered by the Chancellor to bring the sale money into court, and at the same time to appear in person to answer for his contempt. We are not told how the contempt was purged, but we may readily suppose that upon the payment to the complainant of his damages and costs the rule was discharged, since that was the uniform practice in all chancery cases. But as I have said above, even in the foregoing case, if the attorney had seen fit to "sit out the contempt," it is unlikely that the Chancellor would have attempted to do more than hold him in custody." There would have been no summary conviction of an offense and a definite fine and imprisonment therefor. The common law courts would have promptly interfered if such a course had been adopted.

Sometimes the court, in granting an injunction, fixed the penalty for violation in advance, as is commonly done in modern statutes. Thus in a case reported for the year 1558 we find a penalty of £200 affixed to an injunction to stay proceedings in an action at law.18 But I have not been able to find a case in which such a penalty was executed by the court of chancery, nor do I believe that it could have

16 21 E. R. R. 24.

17 See 2 Dan. Ch. Pr., 1st ed., 721

18 21 E. R. R. 21.

been executed, except indirectly by holding the offender in custody until he complied with the order of the court.

During the reign of Elizabeth and the early Stuarts it was very common for such a penalty to be affixed to an order commanding the sheriff to execute process. This procedure, no doubt, grew out of the power exercised by the courts from the earliest times to assess costs against a delinquent party or officer. It would be an easy step from assessing costs to the assessment of a penalty to cover costs. Even in these cases, however, there is no conception of a fine or penalty for a specific criminal offense. Compliance with the order of the court always released the penalty.

Not until we reach the nineteenth century, however, do we find the courts of chancery adopting the process of contempt as a quasi-criminal process, even in cases of direct contempt in the face of the court, and then only in very rare cases. Daniel, in the early editions of his classic work on Chancery Practice, knows of no such use of the writ. Thus in Chap. VIII, Vol. I (1st Ed., p. 572), Sec. 1, Daniel refers to "another species of contempt, in which the dignity of the court is chiefly concerned, and which cannot be purged by mere satisfaction to the party, but may be the subject of punishment by the infliction of imprisonment or fine." These he calls "Extraordinary Contempts," and promises to treat further of them, but fails to do so.

In the year 1781, in the case of Schreiber v. Latewood," we find the Lord Chancellor directing an information in the King's Bench against an unfortunate lover, who, by hook and crook, had managed to marry a ward out of chancery without the Chancellor's consent, a commitment not being in the opinion of the Chancellor a sufficient punishment. No reference is made in this case to the more famous case of Mr. Justice Eyre v. the Countess of Shaftsbury and Lady Gainsborough,20 decided by Lord Macklesfield in 1722. In that case the Earl of Shaftsbury had left

19-21 E. R. R. 401.

20 2 Piere Williams 103.

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