Page images
PDF
EPUB

ment, to the flattery of princes and ministers.” “No judicial promotion whatever," says Lord Brougham, “ should be possible. The hopes of it, the struggle for it, the chagrin at not receiving it, all interfere with the perfect calmness, the entire abstraction from Court intrigue, the complete independence of all Party connection, the exclusive devotion to judicial duties, which ought to characterise the great functionaries of justice-the oracles of the law.” These words, written a generation ago, seem strange to us who have witnessed the passing of a statute by which Lords of Appeal in Ordinary must have, before their promotion to that office, several years' experience in a judicial capacity, and who have seen without protest one Judge promoted on four different occasions, and honoured with a baronetcy and life peerage. But, in truth, even in the time of Hallam and Brougham, the doctrines of the Revolution had not attained their full development. There was still an antagonism between the people and the Executive Government. The House of Commons had not yet become the reflection of the people's wishes. The prerogatives of the Crown had not been virtually transferred to a Cabinet responsible to the House of Commons, and through it to the people at large. The Act securing the independence of the Judges was framed not to render them independent of the people, but independent of the Crown. At the present time, it is no exaggeration to say that the House of Commons exercises the prerogatives of the Crown, through its servants the Cabinet, as the representative of the people. The cumbrous procedure through which Judges must be removed in default of resignation, in the case not of misconduct only, but even of physical and mental incapacity, is unsuited to the genius of our modern Constitutional Government. In the discussions on the Act of Settlement, it was seriously proposed that a Judge should be rendered

capable of dismissal from office on an address, not of both, but of either House of Parliament. This alone shews how far our notions of Constitutional Government have, in the development of public opinion, outrun those of our ancestors. No Government would venture to dismiss a Judge at the present day, unless supported by an unanimous public opinion. It is conceivable, though not probable, that the Lords would not join the Commons in an address to the Crown for the dismissal of a Judge whose conduct cast contempt and odium on his office, or whose imbecility imperilled the interests of character, liberty, and property. In such case, the provisions of an earlier age for rendering the Judges independent of the Crown might, through the action of the Lords, render them independent of the people. The control which the House of Commons should, through the Cabinet, have over the Judges is, under the present system, halved with the other branch of the Legislature. The Lord Chancellor, at the present day, holds office at the pleasure of the Crown, in other words, at the pleasure of the Cabinet, which is the pleasure of the House of Commons as representing the Commons at large, whereas a puisne Judge may hold office in defiance of the people and the people's representatives, at the will of the House of Lords.

J. G. Swift MacNeill.

III.-CONTEMPT OF COURT.

II. CONTEMPTS BY PUBLICATION.

Reports of part-heard cases-Distinction between publication in ordinary way of business and publication by party or other interested person--Plea of ignorance of pending action-Of ignorance of contents of paper by ostensible publisher. i. Contempts by Disinterested Persons-Editors, Publishers, Printers, Writers.

Motions against where mere technical contempt, to be discouraged – Aliter where substantial interference-Libel rules as to fair comment do not extend to comment on pending case-Inspired and biassed article a gross contempt. (a.) Simple comment.

Insinuations against veracity of parties—Imputation of bad motives Class journals-Fair discussion-Strong attack on one side—"Advancing and promoting the course of justice "-Local newspapers – Matters of local interest—Election petition-General papers, Comment for political reasons-Plea that party complaining has made public allusion to case, no answer—Statement that action has been abandoned --Drawing attention to case without particular comment-Copying article from other papers--Exhibitions of models of accused person and person alleged to

have been murdered. (6.) Publication of pleadings or other papers, with or without comment.

Papers in a proceeding necessarily ex parte-Publication a contempt as tending to prejudice-Intention in publisher's mind immaterial-But application for committal should not be made where no substantial interference — Duty of Court to protect suitors against anonymous audacity-No excuse that document published would come in the ordinary course to the knowledge of a number of persons not strangers to the action-Contempt to publish a brief-A winding-up petition-Pleadings and affidavits—Publication of article expanding entry in cause listPublication of plaintiff's affidavits, with unfair comment-Plaintiff in suit of local interest furnishing pleadings to local editor-Fair and temperate

discussion thereon. (c.) Advertisements.

Advertisement received in the ordinary way of business-Advertisement offering reward for evidence.

ii. Contempts by Party, or other interested Person. Difference between position of interested person and position of disinterested persons-Peculiar duty not to discuss merits in public-Anonymous letters and articles by interested person prejudice the trial through knowledge displayed. (a.) Making, or supplying the materials for making, comment.

Pamphlet on suit by party-Solicitor discussing merits in newspaper under assumed name-Public agitation to provide funds for criminal defence-Republication at large of privileged statement-Counsel sup

plying garbled report of proceedings. (6.) The publication of pleadings, or other papers, with or without comment.

Persons with legitimate interest to the same, General publication of evidence at examination under Companies Act-Circulation of statement of claim amongst strangers- Publication of rough draft of Receiver's

interim report. (c.) Advertisements.

Offer of reward for evidence of a nature to deter witnesses-With mixed, or perverse, motives — Law as to this and advertisements in ordinary way of business discussed-Advertisements to make public interlocutory order – To correct newspaper report of interlocutory application -- Advertisement charging parties with corrupt motives

Advertisement of citations proceeding out of foreign Courts. (a.) Party refuting comment.

SIN
INCE of necessity a report of a part only may tend

to prejudice, and the whole cannot, of equal necessity, be published till the cause is concluded and no longer pending, no report of a pending case can lawfully be published at all.* But the Court cannot notice the offence there may be in such a publication unless the matter is brought before it by complaint regularly made,* or comes to judicial notice in some other manner,t and at the present day it is not customary to complain of a report of a partheard cause unless where the report is alleged to have been made purposely unfair, or to be unfair through reckless want of care, I or is in contravention of an especial

* Deacon v. Deacon, 1827, 2 Russ. 607.
† See the concluding paper of this series, post.
I See & ii. (b) and (c) here below.

declaration from the Bench that the particular cause in course of trial, or about to be tried, must not be reported till its conclusion.*

Comments upon proceedings in Court may be, and often are, made by persons making them in the ordinary course of business, as a matter of public interest, and also by persons who have, or fancy they have, some especial object of their own to serve, or grievance to remedy, in making the publication. To ascertain whether a contempt has been committed or no the object of the person alleged to have committed the contempt is not to be regarded,+ nor has the truth of the statement anything to do with the question. The test is—Is there, or not, a tendency to interfere with the free course of justice ? But yet, a contempt being a criminal offence, if the person who is responsible for the publication satisfies the Court that, at the time of publication, he was entirely ignorant of any pending action,ll or that the thing was innocently done, SI the mercy of the Court will spare him punishment.**

Thus, where the article complained of was published, in the Financial Times, within about a fortnight of the issue of the writ, and it was shewn that the editor and printer were then ignorant of the pending action, and on being informed of the action promptly published an apologetic statement,

* Rex v. Clement (Observer), 1821, 4 B. & Ald. 218. See further, as to a simple report of a proceeding technically pending, Introduction, $ ii., ante.

+ Robson v. Dodds (No. 1), 1869, 20 L.T. 941; 17 W.R. 782 ; Hunt v. Clarke (Star), 1889, 58 L.J. Q.B. 490; 61 L.T. 343; 37 W.R. 724 C.A. But see Metzler v. Gounod, 1874, 30 L.T. 264; and Mordey v. Knight, 1890, Times, 16 Ap., 1890, D. The object affects the punishment, Ex parte Green. Re Robbins, 1891, 7 T.L.R. 411.

I Reg. v. Castro (Skipworth's Case), 1873, L.R. 9 Q.B. 234. § 1b.; Hunt v. Clarke, ubi supra. il Metropolitan Music Hall Co. v. Lake, 1889, 58 L.J. Ch. 513 ; 60 L.T. 749.

Baker v. Hart, 1742, 2 Atk. 488. ** Ib. ; Ex parte Fones, 1806, 13 Ves. 237.

« PreviousContinue »