The Scotch courts exercise the same powers as to commitments for contempt which the English courts do. Hume, (a) after dealing with the case of contemptuous demeanor in court, says: "It is equally indispensable to repress in the like speedy and effectual manner all attempts which may be made with relation to any trial depending at the time, or which has recently been so, to slander the proceedings of the court, or depreciate the character, or sully the honour of the judges; or to impose on their wisdom and pollute the demands of justice, to the prejudice of a fair and an impartial trial. In former times they scrupled not summarily to inflict high corporal pains, for transgressions of the first of these kinds. As in the case of Donald Campbell, who, in the course of a trial, when standing among the multitude by the courthouse, had openly accused the Earl of Athol, Justice-General, of gross partiality and corruption in the case; he had sentence, therefore, to stand two hours upon the cuck-stool and make public confession of his fault, and to have his tongue bored by the common executioner. More lately, after the conviction of Nairn and Ogilvy, certain printers were rebuked (and, on account of their submission, were dismissed without further answer) for publishing an opinion of English counsel on the case, accompanied with notes highly injurious to the court and the jury. In a still later instance, an account had been published of a certain trial, equally slanderous of the proceedings of the court, and contemptuous of the persons of the judges; and here, as the offence was not followed with the like symptoms of contrition, the culprits Johnson and Drummond were sent to gaol for three months, and till they should find surety for their good behaviour for the future. In these several instances the court guarded their own honour. In the following they were no less jealous of the interest of justice and a fair trial. One Gilkie, a writer, agent for the prosecutor in a case of murder, was condemned to a month's imprisonment and to find caution for his good behaviour: after execution of the criminal letters, he had published sundry memorials and other addresses commenting on the charge, and tending to prejudice the public against the accused. The Lords declared on this occasion that such publications are a high indignity to the court and most dangerous to the course of justice, as tending to prepossess and inflame the minds of the country against the persons accused, and thereby obstruct the course of a fair trial.' A fine was awarded, and the (a) 2 Com. 139. PART IV. CHAPTER V. Scotch courts. PART IV. CHAPTER V like censure of all such unfair practices was inserted in the record, on occasion of the trial of Ewan Macewen before the Lords Justice-Clerk and Eskgrove at Perth, in May, 1785: after service of the indictment, the agent for the pannel had rashly published and circulated in the neighbourhood, a sort of narrative on his part, giving an account of the charge, and the circumstances of the case." In 1820, Gilbert M'Leod was sentenced to be imprisoned and find caution, under a penalty, for his good behaviour for three years, for having published, in a periodical called The Spirit of the Union, a false and slanderous account of what had passed in court at giving sentence of fugitation against George Kinloch, and one which was calculated to raise groundless doubts and jealousies of the due administration of justice in the Court of Justiciary. (a) A newspaper having published (pending the trial of this Gilbert M'Leod, the same year, on a charge of sedition) a paragraph inserted by William Watson, which gave a false and exaggerated account of the charge against the accused, and made his case the subject of public discussion, the court found"that such conduct is derogatory to the authority of this court, dangerous to parties, whether prosecutors or pannels, and subversive of the principles of a fair trial;" but in respect of circumstances of extenuation stated by Watson, they dismissed him with a rebuke and a fine of five pounds. (b) It appears that in those cases where the publication of statements having a tendency to interfere with the administration of justice, does not call for punishment, the court may nevertheless interfere to prohibit such publication. Thus, in 1829, William Haire being charged with the murder of James Wilson, on the motion of the counsel for the accused with reference to an advertisement of a forthcoming publication of the confessions of William Burke, which had been announced in the Edinburgh Evening Courant, the Lords "prohibit the editor and publisher of the Edinburgh Evening Courant from publishing or circulating any statement relative to the alleged murder of James Wilson, or anything prejudicial to the prisoner, William Haire, in the said confession, or doing anything whereby the same may be published, till the proceedings now in dependence against the said William Haire shall be brought to a conclusion, and recommend to the publishers of all newspapers to abstain in like manner from doing so." (c) (a) Shaw's Cases, No. 4. (b) lb. No. 6. (e) Bell's notes, 165. See also Emond's case (7 December, 1829, Shaw, Colonial courts of record possess the same power of commitment for contempt that the home courts do, and an appeal will not lie from such a commitment to the Privy Council.(a) In these cases, however, it must appear clearly on the face of the order that the party had committed a contempt, that he had been duly summoned to make his defence, and that the punishment awarded for the contempt was an appropriate one. (b) Where a barrister and attorney wrote a letter to the Chief Justice of Nova Scotia, reflecting on the judges and the administration of justice generally in the court, but wrote it not in his professional capacity, but in his private capacity as a suitor in respect of a supposed grievance and injury done him as a suitor, the Privy Council held that an order suspending the writer from practising in the court was not an appropriate punishment for the offence, and on that ground advised Her Majesty to discharge the order. (c) "The letter," said Lord Westbury, in delivering the judgment of the Privy Council, "was a contempt of court which it was hardly possible for the court to omit taking cognisance of. It was an offence, however, committed by an individual in his capacity of a suitor in respect of his supposed rights as a suitor and of an imaginary injury done to him as a suitor, and it had no connection whatever with his professional character, or anything done by him professionally either as an advocate or an attorney. It was a contempt of court committed by an individual in his personal character only. To offences of that kind there has been attached by law and by long practice a definite kind of punishment, viz., fine and imprisonment. It must not, however, be supposed that a court of justice has not the power to remove the officers of the court if unfit to be entrusted with a professional status and character. If an advocate, for example, were found guilty of crime, there is no doubt that the court would suspend him. If an attorney 229). For Lord Cottenham's opinion as to the jurisdiction of the Court of Session to prevent by interdict the publication of libellous statements, see 1 H. L. Cas. 376. (a) McDermott v. The Judges of British Guiana (L. Rep. 2 P. C. App. 341; 20 L. T. N. S. 47). See also Rainy v. The Justices of Sierra Leone (8 Moore's P. C. C. 47, 54), and Hughes v. Porral (4 Moore's P. C. C. 41). (b) See per Lord Chelmsford (L. Rep. 2 P. C. App. 363), and Re Wallace (L. Rep. 1 P. C. App. 283; 14 L. T. N. S. 286; 36 L. J. 9, P. C. C.; 14 W. R. 609); Re Pollard (5 Moore's P. C. C. 111; L. Rep. 2 P. C. App. 106); Re Downie and Arrindell (3 Moore's P. C. C. 414). (e) Re Wallace (ubi supra). See also Re Downie and Arrindell (3 Moore's P. C. C. 414). BB PART IV. CHAPTER V. Colonial courts. PART IV. CHAPTER V. Publications which tend to prejudice the hearing of a cause. But be found guilty of moral delinquency in his private character, The calumniation of parties who are concerned in a cause before the court, or any publication which attempts to create prejudice against any of them before the cause is heard, and thus tends to influence its result, constitutes a contempt. The rules which have been laid down as to fair comment on matters of public interest and notoriety, do not extend to comments on matters still pending, waiting for argument (a) Besides contempts of court committed by means of libellous writings (with which alone this work professes to deal), the courts have frequently punished by attachment the utterance of contemptuous or contumelious words, and also the contemptuous demeanour of parties before it. Contempts of court by means of words are also indictable. The following are examples of this general head of contempts: Calling a magistrate, in a court of justice, a fool, but not so speaking of him in his absence, and without reference to the execution of his office (Simmons v. Sweete, Cro. Eliz. 78; Reg. v. Wrightson, Salk. 698; see also 2 Roll. Rep. 78; 4 Inst. 181; Ex parte the Mayor of Yarmouth, 1 Cox Crim. Cas. 122); giving the lie to the steward of a manor holding a court leet (Earl of Lincoln v. Fisher, Cro. Eliz. 581; Ow. 113; Mo. 470), or telling him in court that he is forsworn (2 Rol. Abridg. 78); saying to justices in session "Though I cannot have justice here, I will have it elsewhere" (Rex v. Mayo, 1 Keb. 508; 1 Sid. 144); putting on one's hat in presence of the lord of a court leet, and saying he cared not what he could do (Bathurst v. Coxe, 1 Keb. 451, 465; Raym. 78); saying to a justice of the peace in the execution of his office that he was a rogue and liar (Rex v. Revel, 1 Str. 420); but not saying of a justice in his absence that he was a scoundrel and a liar (Rex v. Weltje, 2 Camp. 142). And a court may be insulted by the most innocent words uttered in a peculiar manner and tone (Per Lord Denman, C.J., Carus Wilson's case, 7 Q. B. 1015). Wherever a justice may commit for such words, the offender may also be indicted for the misdemeanour (Str. 420). A justice can commit only where the contemptuous words are spoken in his presence; in other cases the remedy is by indictment of the offender: (Rex v. Revel, ubi supra. See also Rex v. Wrightson, ubi supra, and 1 Vent. 169; 2 Keb. 249; Hutt. 131; 3 Mod. 139; Rex v. Selby, Mich. 4 Anne K. B.; Rex v. Penny, 1 Ld. Raym.; Rex v. Pocock, Str. 1157.) A barrister may also commit a contempt of court in the conduct of a cause: (Re Pater, 33 L. J. 142, Q. B.); and so may one of the parties to the cause in the course of addressing the jury: (Rex v. Davison, 4 B. & Ald. 329.) As to contempts of county courts see sect. 113 of 9 & 10 Vict. c. 95, and the case of Lery v. Moylan (19 L. J. 308, C. P.); and as to contempts of ecclesiastical courts, see 2 & 3 Will. 4, c. 93. and decision, which have a direct tendency towards directing and swaying the mind of the court or jury, by whom the cause is to be determined. (a) The publication by a newspaper of a paragraph taxing certain witnesses in a pending cause with "turning affidavit men," was held a contempt of court by Lord Hardwicke. His lordship construed the words "affidavit men" to mean "persons who are ready upon all occasions to make affidavits without regarding whether they have any cognisance of the facts," and committed the printers to prison, observing (b) that "nothing is more incumbent upon courts of justice than to preserve their proceedings from being misrepresented; nor is there anything of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard. . . . . There cannot be anything of greater consequence than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters." ... The publication in a newspaper, pending a cause in Chancery, of articles reflecting on the plaintiff and his witnesses, and characterising the Chancery proceedings as vexatious and unprincipled, and representing the affidavits as containing glaring misrepresentations which the editor believed, and heartily hoped, would lead to an indictment for perjury, was held a contempt of court by the Master of the Rolls (Lord Langdale). "If parties in the prosecution of their rights," said his Lordship, "are to be exposed to this species of attack, and are to be placed in such a situation that they cannot safely proceed in the defence of their rights, and if witnesses are in this way deterred from coming forward in aid of legal proceedings, it will be impossible that justice can be administered. It would be better that the doors of the courts of justice were at once closed." (c) It was held a gross contempt of court to publish in a newspaper an article commenting on affidavits which had been filed on behalf of the plaintiff in a suit, but were not yet before the court; and the publisher, after making an ample apology, was ordered to pay the costs of a motion to commit him. (d) PART IV. CHAPTER V. It is also a contempt to reprint in another newspaper an Reprint of (a) See per Wood, V.C., Tichborne v. Mostyn (17 L T. N. S. 7; L. Rep. 7 Eq. 57). (b) 2 Atk. 469. (c) Littler v. Thompson (2 Beav. 129). (d) Tichborne v. Mostyn (17 L. T. N. S. 5; L. Rep. 7 Eq. 55). See the language of Wood, V.C., on this subject, cited ante, p. 45, 46. article. |