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CONSTRUCTIVE CONTEMPT.

Fifty years ago a discussion such as that embodied in the following paper would have been considered academic, if not wholly inappropriate. At that time no work on the subject of Contempts had been written. Nor did such a work appear until twenty years later, when the thin 200page volume of Mr. Rapalje was published.

But the rapid development of trade and wealth in this country, accompanied by the equally rapid development of the Law of Injunctions and its application to labor disputes and other important controversies arising from the conflicts of a new industrial era, has created new uses for the processes of contempt, and has brought forth controversies and problems of burning interest to lawyer and laymen alike.

I shall touch upon but a few of those problems in this paper. But if I succeed in calling the more concentrated attention of Bench and Bar to some of the evils of the situation, I shall feel that my labor has not been in vain.

A brief review of the ancient and modern practice in England, both in criminal and civil cases, and of the mediaeval and modern theory of crime and indebtedness, will help us to a better understanding of the problems which confront us in the study of the question as to the proper method of dealing with the misdemeanor, commonly called constructive contempt of court. I shall first briefly outline the origin and development of the theory and practice in criminal and civil cases; then call attention to the procedure in the chancery court and the ecclesiastical court; after which I shall notice a few of the cases in Virginia and West Virginia. In this way one will be able to estimate the claims of both sides in reference to the summary punishment of constructive contempts.

Much light has been thrown on the condition of the common law of England in the days before the time of Edward I. by recent investigations. It has been shown that what is now commonly known as "contempt" had its origin in the remotest Anglo-Saxon times, when government was unstable and every word or act unfriendly toward the King or his dominion, was treated as an incipient act of treason. "In the Angle-Saxon dooms, a general forfeiture of 'all that one has' begins to recur with increasing frequency as time goes on." "For 'contempts' of King, or Lord, these dooms have a special, wite, the oferhyrnes, or in Leg. Henr. everseunessa. The King's oferhyrnes was, however, the very serious mulct of 120 (Saxon) shillings. The first stages in the development of the amercement are, we imagine, rather Frankish than English; they may be found in a forfeiture of goods for the elastic offense of infideliatas. . . . “In Glanvill's day, however, men are always falling into the King's mercy in the course of civil actions." (See Coke, Sec. Inst. 28.) "Thousands of amercements are being inflicted by courts of all kinds. (That is in the Eleventh and Twelfth Centuries.) The process is this: So soon as the offender's guilt is proved, the court declares that he is in mercy (in misericordia). If it be a royal court he is in the King's, if it be a county court he is in the sheriff's, if it be a seignorial court he is in the Lord's mercy. Thereupon, at least in the local courts, the offender 'waged' an amercement, that is to say, he found gage or pledge for the payment of whatever sum might be set upon him when he should have been amerced." Again, "in the Thirteenth Century amercements are being inflicted right and left upon men who have done very little that is wrong. The sums that they have to pay are small, and most men in England must have expected to be amerced at least once a year. Therefore this punishment could not have been very

terrible."

It must be remembered that in those early days all offenses were against the King himself; the sovereign of all power, dominion and justice. Offenses against any officer of the King, whether administrative, judicial or executive, were offenses against the King, and there was no distinction between a contempt, as an offense against a judge, and one against a sheriff, or messenger of the King. This will be shown more fully by quotations from Coke's Institutes and Hawkins' Pleas of the Crown.

1 Pollock & Maitland, Hist. of Eng. Law, p. 515, note 4. VOL. L.

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That the people of England resented the arbitrary system of fines assessed against them by the King's judges. is shown by the attempt to establish some fixed maximum for the amercement. And at an early day, both in England and Normandy, the rule had grown up for the amercement to be "affeered" by the oath of lawful men. That is to say, it was to be determined by a jury. And the later writers distinguished between a fine and an amercement. Then the great Charter decreed that all amercements were to be set, or "affeered" by good men of the neighborhood. And that amercements should vary with the gravity of the offense and that certain goods and chattels should be exempt. "The amercement became the most flexible and therefore it could be the smallest of all punishments." Most misdoings of royal officers, sheriffs, coroners and bailiffs, where punished, were punished summarily by the justices in eyre, by fine, or, more often, in an administrative way by compelling the wrong doer when he rendered his account at Westminster to pay over to the King all that he had extorted from the people.3

"All justice was first administered under the early common law, as probably in all other jurisdictions, in a summary way. When a felony was committed the hue and cry was raised. The man caught in the act was given short shrift. If he made resistance (and this, by the way, continues to be the law at the present time) he was cut down, but even if he submitted to capture his fate was already decided. He was brought before the court and without being allowed to say one word in self-defense he was promptly hanged, beheaded, or precipitated from a cliff, and the owner of the stolen goods perhaps acted as amateur executioner. Thus we see that the modern lynch law is after all but a relic of primitive judicial procedure."4

"In the thirteenth century," Pollock & Maitland tell us, "this barbaric justice is being brought under control. The old rule held good, that if by hue and cry a man was captured when he was still in seisin of his crime-if he was still holding the gory knife or driving away the stolen

2 See Pollock & Maitland, Vol. 2,

p. 514.

3 Op. cit., Vol., 2, p. 521.

4 Op. cit., p. 579.

beasts--and he was brought before a court which was competent to deal with such cases there was no need for any accusation against him, for any appeal, or any indictment, and what is more, he could not be heard to say that he was innocent, he could not claim any sort or form of trial. Even royal judges, if such a case is brought before them, act upon this rule."

"It is not confined to cases of murder and theft. A litigant who in a civil suit produces a forged writ is hanged out of hand in a summary way without appeal or indictment, and the only chance of exculpation given him is that of naming a warrantor. Even as late as the days of Chief Justice Hale (P. C., Vol. 2, 156), a man taken 'with the mainour' (cum manuopere), though he was suffered and compelled to submit the question of his guilt or innocence to the verdict of a jury, could be put on his trial without any appeal, or any indictment."

The summary punishment of contemptuous acts, either in the presence of the court, or in other places developed but slowly during the hundreds of years following the conquest. The early cases found in the books do not intimate whether the punishment was summary or by indictment. In some of the cases, however, it is certain that the offender was amerced; in such cases we may fairly assume that he was convicted by a jury, as the word "amercement" was commonly understood in early times to imply the determination of the amount of the punishment by jury trial. But even in cases where the word "fined" is used in speaking of the punishment we cannot be sure that the offender was not tried by jury, for the word "fined" gradually lost its original meaning of summary punishment, and came to cover any sort of pecuniary punishment; the word "amercement" fell gradually into disuse.

There is one case on record of a contempt of the Bishop by disturbance in church. There was also contempt of Parliament, and contempt of the King's officers. And it

5 Carleton v. Hutton, Palm. 424.

was contempt of the admiral to sue in another court than the admiralty court; so it was contempt of the ecclesiastical court, and of the courts of the City of London to sue elsewhere. In the manorial court a contempt was a contempt of the Lord. By the laws of Henry I., “Contemptus brevium," whatever that may be, was declared to be an offense subjecting a person guilty of it to amercement; and in the time of Henry II. failure of a tenant to attend court on summons might, according to Glanvill, Bk. I, Ch. 38, be punished by the King, or his justices, at their pleasure, for the contempt. If the demandant in certain cases failed to produce his Lord the body of the demandant himself should be attached on account of his contempt of court, and thus he shall be distrained to appear in court. In this case it will be noted that the attachment for contempt was a mere civil process to bring the party into court. The same was true in the inferior courts, we are told. In the manorial court it was contempt of the Lord of that court to depart without answering a complaint, and a burgess was guilty of contempt who failed to appear at the proper time before the borough court. In the Court of Arches it was contempt, "in non parendo mandatis." Under the early conception of law an act of contempt was an act of resistance to the King himself; hence to disobey a writ under the King's seal was a grievous act of contempt.

Lord Edward Coke, in his Third Institute of the Laws of England, written in the early years of the reign of Charles I., classes those offenses now commonly described as contempts of court, under the head of misprision. In quaint English Lord Coke defines misprisions as follows:

"Misprision cometh of the French word 'Mespris,' which properly signifieth neglect, or contempt, for (mes) in composition in the French signifieth mal, as 'mis' doth in the English tongue; as mischance, for an ill chance, and so 'mesprise' is ill apprehended or known. In legal understanding it signifieth, when one knoweth of any treason, or felony, and concealeth it, this is misprison, so called, because the knowledge of it is an ill knowledge to him, in respect to the severe punishment for not re

€ 21 Har. Law. Rec. 162.

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