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of appeal; and unless the Court of First Instance, or Court of Appeal, held the accused to be innocent, that the accused should be entitled, as in a Civil action, to re-commence proceedings against the accused. All Criminal appeals should be immediately from the Inferior Courts to the High Court of justice, and should be brought under review by a simple and inexpensive procedure.

Finally, I would refer to the Criminal Law and Pro

cedure Reforms which I suggested in this Review in May, 1878. ALEXANDER ROBERTSON.



1. INTRODUCTl0N.—§ i. The Nature and Outline of the Subject.

Distinction between contempt by disobedience and contempt by obstruction or interference—Former part of law of execution—Latter a criminal matterCriminal contempt defined—-Jurisdiction to visit with summary punishmentNature and reason of the jurisdiction—Not necessary to shew an actual deflection of the course of justice—Power of Court neither arbitrary nor precisely limited—Motions where mere technical contempt discouraged—The limits of the jurisdiction—Meaning of " the Court "—Arrangement of subject.

§ ii. When a Proceeding is Pending.

Civil proceeding—Criminal cause—Inatitution of proceeding—Before judgment drawn up—-Contempt sedente curia—Cases concluded, or concluded as to one stage—Reports of cases—New trial—Indictment against a number of persons tried seriatim -Molestation after decree for judicial separation.

§ i. The Nature and Outline of the Subject.

A CONTEMPT of Court may be committed either by disobeying an order of a Court, or by obstructing or interfering with the course of justice.I Contempt by dis obedience to an order is, at bottom, a branch of the law of execution.’* Contempt by interference with the course of

F Pooley v. Whetham, 1880, 15 Ch. D. 435 C.A. (disobedience to order not an offence within sect. 19 of the Extradition Act, 1870) ; Martin v, Bannister, 1879. 4 Q.B.D. 491 C.A.

justice isa highly criminal matter, on occasion arising out of an act of disobedience, but separable and distinct from any form of contempt in process?“ I propose to treat of Criminal contempts only.’r

A contempt of Court is anything done, when an action, cause, proceeding, or matter is pending in Court, which has a tendency to obstruct or interfere with the ordinary course of justice, or to prejudice the trial.Ii

Such an act would generally be punishable by the criminal law, and is, at times, a libel, and if there is some particular doubt as to a matter of fact, for instance, as to the meaning of a document, the Court, in its discretion, may leave the question to be determined by a jury,§ but, since ordinary criminal process is slow and would be inoperative till after the mischief was done, there is a jurisdiction, which Courts of Record have properly exercised

from the earliest times, to deal summarily with such cases.l|

*' Ib.,- Harvey v. Harvey, 1884, 26 Ch. D. 644; O’Shea v. O'Shea, ex part: Tuohy, 1890, i5 P.D. 59 C.A.; Reg. v. Castro (Ski/>worth’s Case), 1873, L.R. 9 Q.B. 219, 232.

1' Excluding contempt by the non-payment of money ordered to be paid in a fiduciary capacity and contempts by solicitors as officers of the Supreme Court, which, though criminal (In re Gent, 1888, 40 Ch. D. I90; In re Freston, 1883 II Q.B.D. 545), are not of the same character as contempts by interference; andcontempts committed by inferior Courts in ignoring orders of a superior Court directed to them. See Bl. 2 Com. 280, 2 Hawk. P.C.c. 22; Vin. Ab., t. Contempt; Coventry and Hughes, Dig., t. Contempt; Barton v. Reg., 1840, 2 Mo. P.C. i9; Barton v. Field, 1842, 4 Mo. P.C. 273.

I Anon. (Case of the Champion, Case of the St. _'}’ames’ Evening Post), 1742, 2 Atk. 469, S.C. Roach v, Garvan, 2 Dick. 794, 1748; 1 Ves. Sen. 157; Skit]:w0rth’s Case, u.s.

§ Ex parle .'}’ones, 1806, 13 Ves. 237; Helmore v. Smith, 1886, 35 Ch. D. 449.

|| Rex v. Almon, 1765, Wilmot’s Op. 243 (approved Re jfohnson, 1887, 20 Q.B.D. 68); 2 Hawk. P.C. c. 22; Burdett v. Abbott, 1811, 14 East 85, per Lord Ellenborough, C.J.; Rex v. Davison, 1821, 4 B. and Ald. 329; Rex v, Clement, 1821, ib. 218; Skipw0rth's Case, ubi supra.

A proceeding for contempt does not amount to a process taken for vindicating the personal dignity of the judges, and protecting them from personal insults as individuals. A contempt may be committed by a libel or slander, or personal attack on a judge, and through him on the Court, or by an insult offered to him, and through him to the dignity of the Court; but the object and reason of the process and jurisdiction is to preserve the proceedings of the Court from being misrepresented, to prevent prejudice to the minds of the public against persons concerned as parties in causes, before the cause is finally heard, to keep the streams of justice clear and pure that parties may proceed with safety both to themselves and to their characters, to check attempts to influence the Court, or to attack, deter, intimidate, or insult witnesses or jurymen, and generally to shield and protect those having duties to perform in Courts of justice, in order that a cause may be tried fairly and impartially, without fear or favour, according to the law and practice of England?‘

It is not necessary, therefore, to shew an actual deflection of the course ofjustice. There being a possibility of obstruction, the offence is constituted by the bare interference, for if the contemnor escaped with impunity because he had failed, he might be encouraged to success, and frequently, as when an attempt is made to influence the minds of possible jurors or witnesses, it cannot be established whether the object has been attained or not.'l'

The power of the Court is neither perfectly arbitrary and indefinite, nor precisely limited or fixed, but may be extended to new cases as they arise, provided they be within the principle of those in which the jurisdiction has been decided to exist, the Court shewing the length of its arm when occasion so requires."*

' Re }’ohnson, ubi supra, S.C., Yonas v. Long, 31 Sol. J0. 727; Roach v. Gnrvan; Skipwortlfs Case; Helmore v. Smith, and other cases supra; Ex pane Fernandez, 1861, 30 L.J. C.P. 321.

1' Skipworth's Case, u.s.; Poor v. Sacheverel, 1720, 1 P. Wm. 676; Felkin v. Herbert, 1863, 33 Ch. 294; Re Mulock, 1864, 33 L,J. M. 205.

But the authority of the Court is best vindicated by reserving its extreme powers for cases which imperatively call for their exercise, and a motion ought not to be made for committal when a party has other means of working out his rights withoutprejudicial delay, and merely on the ground of a technical offence, the real object being to compel payment of costs.’r

It is not every Court which has anyjurisdiction to punish as for contempt, while the jurisdiction of many others does not extend to contempts committed out of doors, but is limited to contempt in the face of the Court, as it is called.I It will in consequence be convenient, after shortly explaining when a proceeding is pending, to deal generally with the divers contempts which may be committed, reserving the proper qualifications in relation to the different Courts for later consideration, so that “the Court,” unless the contrary is expressly stated, or made apparent from the context, will mean the Supreme Court of judicature.

§ ii. When u Proceeding is Pending.

A civil proceeding is pending from the issue of the writ or other initiatory process so long as any proceeding can be taken in the cause. And a criminal cause, in the same way, is pending from the issue of the summons or warrant, or presentment of the indictment, till the final sentence of the Court has been commenced to be put into execution, or till the defendant has been acquitted and discharged, or discharged for some other reason.*

* Miller v. Knox, 1838, 4 Bing. N.C. 589, opinion of Williams, J. Helmore v. Smith, u.s.

t Ward v. Swift, 1848, 6 Hare 312, per Shadwell, V.C.; Re Clements, Republic of Costa Rica v. Erlanger, 1877, 46 L.J. Ch. 375, 383,j>erjessel, M.R.; Plating Co. v. Farquharson, 1881, 17 Ch. D. 49 C.A.; Hunt v. Clarke (Star), 1889, 58 L..l. Q.B. 490; 6I L.T. 343; 37 W.R. 724 C.A.

I Reg. v. Lefroy, 1873, L,R. 8 134, S,C. Ex fart: yollifli, 42 L.J. Q.B. 121.

Accordingly, the publication of comments on the conduct of the parties shortly after the issue of the writ is a contempt, although no proceedings whatever have taken place in open Court.’r And, in like manner, it is a contempt to obstruct the service of a writ,I or, immediately upon the institution of an action to which he is a party, to interfere with an infant.§

So, again, true bills had been found by the Grand jury at the Central Criminal Court. The indictments had been removed by certiorari into the Court of Queen’s Bench, and a day fixed for the trial. At this stage speeches were delivered at a public meeting which censured the prosecution and the Crown counsel, and reflected on the trial generally. The Court had no doubt that the cause was pending before it, and inflicted a punishment for this c0ntempt.||

To take an instance of another kind. After judgment had been given by the Chief judge on a matter before the Court of Review, but before the minutes of the order were finally settled, V. S., the solicitor to one of the parties, published a printed circular, copies of which he distributed in the Court, containing defamatory charges against the solicitors opposed to him, and commenting in severe and disrespectful terms on the judgment. The solicitors on the

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§ Gynn v. Gilbard, 1860, I Dr. & Sm. 356.

|| Reg. v. Castro (Onslow’s and WhaIl:y's Cases), 1873, L.R. 9 Q.B. 219.

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