APPENDIX (E.)

Michaelmas Term, 9 Geo. 1.

CASEX of Commitments for Contempt by John Bolton, clerk, for contemptuous words A Writ of Attachment was granted against

Courts of Justice.
ANALOGY.

In Michaelmas Term, 18 Edward 3. John De Northampton, an attorney of the Court of King's-bench, confessing himself guilty of writing a letter respecting the judges and court of King's-bench, which letter was adjudged by the court to contain no truth in it, and to be calculated to excite the king's indignation against the court and the judges, to the scandal of the said court and judges, was committed to the marshal, and ordered to find securities for his good behaviour.-3 Inst. 174.

Hilary Term, 11 Ann.

A Writ of Attachment was issued against Thomas Lawson, for speaking disrespectful words of the Courts of Queen's-bench, upon his being served with a rule of that Court.

respecting the warrants of the Lord Chief Justice of the Court of King's-bench, at a meeting of his parishioners in the Church-yard.

'Easter Term, 9 Geo. 1.

Church-yard, publishing a pamphlet, written John Wyatt, a bookseller in St. Paul's by Dr. Conyers Middleton, in the dedication of which to the vice-chancellor of Cambridge, were some passages reflecting upon a proceeding of the Court of King's-bench; the Court granted a rule against Wyatt, to shew cause why a Writ of Attachment should not issue against him for his contempt; and Wyatt having made an affidavit that Cornelius Crownand he having charged Dr. Conyers Middleton field had employed him to sell the paraphlet, with being the author of it, Crownfield was discharged upon payment of the costs, and a Writ of Attachinent was granted against Dr. Conbail to answer the contempt; he was afteryers Middleton, who, in the next term, gave wards examined upon interrogatories, and upon the report of the king's coroner and attorney he was adjudged to be in contempt, and was committed to the marshal in execution quousfor treating the process of the Court of King's-que, &c. and it was referred to the master to bench contemptuously; and there being an intimation that he relied on the assistance of his fellow-workmen to rescue him, the Court sent for the sheriff of Middlesex into Court, and ordered him to take a sufficient force.-1 Strange 185.

Hilary, 12 Ann.

A Writ of Attachment was granted against Edward Hendale, for speaking disrespectful words of the Lord Chief Justice of the Court of Queen's-bench, and his warrant.

Trinity Term, 5 Geo. 1.

A Writ of Attachment against

Jones,

Michaelmas Term, 6 Geo. 1. A Writ of Attachment was granted to Richard Lamb, for contemptuous words concerning a warrant from a judge of the Court of King'sbench.

Easter Term, 6 Geo. 1.

Wilkins having confessed himself guilty of publishing a libel upon the Court of King's-bench, the Court made a rule committing him to the marshal.

tax the prosecutor's costs.

It is stated in Fortescue's reports that Dr. and to give security for a year; but no rule for Middleton was sentenced to pay a fine of 50%. such sentence has at present been found; and Dr. Colebatch having received such a sentence, is possible that this sentence may, by mistake, for a similar offence, in the preceding term, it have been applied to Dr. Middleton.

Michaelmas Term, 5 Geo. 2.

The Court granted a Writ of Attachment against lady Lawley, for a contempt in publishing a paper reflecting upon the proceedings of the Court; and she having been examined upon interrogatories, was in Easter Term folThe next term Wilkin having made an affi-lowing reported by the officer of the Court to davit charging doctor Colebatch with being the be in contempt, and was committed to the author of the libel, was sentenced to pay a fine marshal. of 5. and to give security for his good behaviour for a year.

Hilary Term, 7 Geo. 1.

An Attachment was granted against John Barber, esq. for contemptuous words of the Court of King's-bench, in a speech to the common council of London.-1 Strange, 443. Hilary Term, 9 Geo. 1.

Doctor Colebatch having been examined upon interrogatories, for contempt in publishing a libel, the interrogatories and answer were referred to the king's coroner and attorney; and

In Easter Term, 9 Geo. 1.

Dr. Colebatch, being in the custody of the marshal, was brought into Court, and was sentenced to pay a fine of 50l. and to give security for his good behaviour for a year, and was committed to the marshal in execution.

VOL. VIII.

And in Trinity Term 6 Geo. 2, she was brought into Court, and a rule made, stating that "fecit submissionem suam petivit veniam "de curia ;" and thereupon she was fined five marks and discharged.

Mark Halpenn, the husband of Lady Lawley, was also examined upon interrogatories, for publishing the same libel. 2 Barnardiston; K.'s B. 45.

Extract from Atkyns's Reports, Book 2, p. 469.

First Seal after Michaelmas Term,
Dec. 3, 1742.

A motion against the printer of The Champion, and the printer of the St. James's Even ing Post; that the former, who is already in the Fleet, may be committed close prisoner, and that the other, who is at large, may be E

committed to the Fleet, for publishing a libel against Mr. Hall and Mr. Garden, executors of John Roach, esq. late major of the garrison of Fort St. George in the East Indies, and for reflecting likewise upon governor Mackay, governor Pitt, and others, taxing them with turning affidavit-men, &c. in the cause now depending in this court; and insisting that the publishing such a paper is a high contempt of this Court, for which they ought to be com

mitted.

Lord Hardwicke, Lord Chancellor, Nothing is more incumbent upon courts of justice than to preserve their proceedings from being misrepresented; nor is there any thing 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. It has always been my opinion, as well as the opinion of those who have sat here before me, that such a proceeding ought to be discountenanced.

But to be sure Mr. Solicitor-General has put it upon the right footing, that notwithstanding this should be a libel, yet unless it is a contempt of the Court, I have no cognizance of it; for whether it is a libel against the public, or private persons, the only method is to proceed at law.

The defendants' counsel have endeavoured two things-1st, to shew this paper does not contain defamatory matter; 2dly, if it does, yet there is no abuse upon the proceedings of this Court: and therefore there is no room for me to interpose.

Now take the whole together, though the letter is artfully penned, there can remain no doubt in every common reader at a coffeehouse but this is a defamatory libel.

It is plain therefore who is meant; and as a jury, if this fact was before them, could make no doubt, so, as I am a judge of facts as well as law, I can make none.

I might mention several strong cases, where even feigned names have been construed a libel upon those persons who were really meant to be libelled.

Upon the whole, as to the libellous part, if so far there should remain any doubt whether the executors are meant, it is clear beyond all contradiction upon the last paragraph, in which are these words: "This case ought to be a "warning to all fathers to take care with "whom they trust their children and their for"tunes, lest their own characters, their widows " and their children be aspersed, and their for"tunes squandered away in law-suits."

And likewise, though not in so strong a degree, the words "turned affidavit-men," is a libel against those gentlemen who have made them!

There are three different sorts of contempt:

There may be likewise a contempt of this Court, in abusing parties who are concerned in causes here.

There may also be a contempt of this Court, in prejudicing mankind against persons before the cause is heard.

There cannot be any thing 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 case of Raikes, the printer of the Gloucester Journal, who published a libel in one of the Journals against the commissioners of Charitable Uses at Burford, calling his advertisement, A Hue and Cry after a Commission of Charitable Uses, was of the same kind as this, and the Court in that case committed him.

There are several other cases of this kind: one strong instance, where there was nothing reflecting upon the court, in the case of captain Perry, who printed his brief before the cause came on; the offence did not consist in the printing, for any man may give a printed brief as well as a written one to counsel; but the contempt of this Court was prejudicing the world with regard to the merits of the cause before it was heard.

Upon the whole, there is no doubt but this is a contempt of the Court.

With regard to Mrs. Read, the publisher of Saint James's Evening Post, by way of alleviation, it is said, that she did not know the nature of the paper; and that printing papers and pamphlets is a trade, and what she gets her livelihood by.

But though it is true it is a trade, yet they must take care to do it with prudence and caution; for if they print any thing that is libellous, it is no excuse to say that the printer had no knowledge of the contents, and was entirely ignorant of its being libellous: and so is the rule of law, and I will always adhere to the strict rules of law in these cases.

Therefore Mrs. Read must be committed to the Fleet according to the common order of the court upon contempts.

But as to Mr. Huggonson, who is already a prisoner in the Fleet, I do not think this any motive for compassion; because these persons generally take the advantage of their being prisoners, to print any libellous or defamatory matter which is brought to them, without scruple or hesitation.

If these printers had disclosed the name of the person who brought this paper to them, there might have been something said in mitigation of their offence; but as they think proper to conceal it, I must order Mrs. Read to be committed to the Fleet, and Huggonson to be taken into close custody of the warden of the Fleet.

One kind of contempt is, scandalizing the 13th Vesey, jun. page 237.-Lord Erskine,

Court itself.

* Vide Baker v. Hart, post. 488. Mrs. Farley's Case, 2 Ves. 520.

Lord Chancellor. Dec. 20, 23, 1806.—
Exparte Jones.

The object of this petition was to remove the
Committee of a lunatic, and to bring before the

Lord Chancellor an alleged contempt by the committee and his wife and other persons, as the authors printers and publishers of a pamphlet, with an address to the Lord Chancellor by way of dedication, reflecting upon the conduct of the petitioner and other acting in the management of the affairs of the lunatic under orders made in pursuance of the trusts of a will, the affidavit representing the conduct of the committee and his wife intruding into the master's office, and interrupting him, not only in the business of this particular lunacy, but all other business. The wife of the committee avowed herself to be the author of the pamphlet, alleging the innocence of her husband.

The Solicitor-General (Sir Samuel Romilly) and Mr. Hart, in support of the petition, were stopped by the Lord Chancellor, who called on the counsel against it.

be traversed, and the party admitting the act cannot deny the motive.-The maxim, 'Actus non facit reum, nisi mens sit rea,' cannot be made applicable to this subject in the ordinary administrations of justice, as the effect would be that the ends of justice would be defeated by contrivance. But upon the satisfactory account given by three of these printers, though undoubtedly under a criminal proceeding, they would be in mercy in a case of contempt, Though I have the jurisdiction, I shall not use it.-The other printer appears upon the affidavits under different circumstances. Having made the observation, that this pamphlet ought not to be printed, being totally uninteresting to the public, yet he does print it; and though the locus penitentia was afforded to him, and he was called upon not to print any more, he proceeded until he had notice of this petition.

Extracts from Sir Eardley Wilmot's Opinions and Judgments; p. 253.

Hilary Term, 5 Geo. 3. 1765.

The KING 7. ALMON.

Mr. Plowden resisted the petition, contending that the petitioners had a remedy at law. Let the Committee, and his wife, and the Lord Erskine: (The Lord Chancellor.) As printer to whom I have last alluded, be comto remedy at law, the subject of this applica- mitted to the Fleet Prison. Dismiss the Comtion is not the libel against the petitioner.-mittee from that office; and direct a reference The case of Roach v. Garvan[ 2Atk. 469] and ano- to the master, as to the appointment of another ther, there mentioned, were cases of constructive Committee. contempt, depending upon the inference of an intention to obstruct the course of justice. In this instance, that is not left to conjecture; and whatever may be said as to a constructive contempt through the medium of a libel against persons engaged in controversy in the court, it never has been nor can be denied, that a publication not only with an obvious tendency but ceeding by attachment is an invasion upon the "It has been argued that the mode of prowith the design to obstruct the ordinary course ancient simplicity of the law; that it took its of justice, is a very high contempt.-Lord rise from the statute of Westminster, ch. 2; Hardwicke considered persons concerned in and Gilbert's History of the Practice of the the business of the court as being under the Court of Common Pleas, p. 20, in the first ediprotection of the court, and not to be driven to tion, is cited to prove that position. And it is other remedies against libels upon them in that respect.-But without considering whether said, that act only applies to persons resisting this is or is not a libel upon the petitioner, what process; and though this mode of proceeding excuse can be al'eged for the whole tenor of execution of process, or to any contumelious is very proper to remove obstructions to the this book, and introduced by this declaration of treatment of it, or to any contempt to the authe purpose which the author intended it to answer? It might be sufficient to say of the book thority of the court, yet that papers reflecting itself, stripped of the dedication, that it could merely upon the qualities of judges themselves, are not the proper objects of an attachment; be published with no other intention than to that judges have proper remedies to recover a obstruct the duties cast upon the petitioner, and satisfaction for such reflections, by actions of to bring into contempt the orders that had been "Scandalum Magnatum ;" and that in the made. But upon the dedication this is not a case of a peer, the House of Lords may be ap constructive contempt. It is not left to infer-plied to for a breach of privilege: That such ence. In this dedication the object is avowed, libellers may be brought to punishment by inby defaming the proceedings of the court standing upon its rules and orders, and interesting the public, prejudiced in favour of the author by her own partial representation, to procure a different species of judgment from that which would be administered in the ordinary course, and by flattering the judge, to taint the source of justice.-This pamphlet has been sent to me.

As to the printers, lord Hardwicke observes, it is no excuse that the printer was ignorant of the contents. Their intention may have been innocent; but, as lord Mansfield had said, the fact whence the illegal motive is inferred must

* This opinion was not delivered in court, the prosecution having been dropped in conse quence, it is supposed, of the resignation of the then Attorney General; but after the death of this eminent and very learned Chief Justice, was found in his own hand-writing among his papers by his son, who published it in Memoirs. of his Life, p. 243. The occasion of it was a motion in the Court of King's-Bench, for an attachment against Mr. Almon, for a contempt in publishing a libel upon the Court, and upon the Chief Justice.

dictment or information, that there are butment is read, it is impossible to draw the comfew instances of this sort upon libels on courts or judges; that the Common Pleas lately refused to do it; that libels of this kind have been prosecuted by actions and indictment; and that attachments ought not to be extended to libels of this nature, because judges would be determining in their own cause; and that it is more proper for a jury to determine quo animo such libels were published.

"As to the origin of attachments, I think they did not take their rise from the statute of Westminster, ch. 2; the passage out of Gilbert does not prove it; but he only says, "the "origin of commitments for contempt, 'seems' "to be derived from this statute;" but read the paragraph through, the end contradicts the 'seeming' mentioned in the beginning of it; and shews, that it was a part of the law of the land to commit for contempt, confirmed by this statute. And indeed when that act of Parlia

mencement of such a proceeding out of it; it empowers the sheriff to imprison persons resisting process, but has no more to do with pleasure, but that the offender must afterwards be brought in, to answer by due process of law, and receive sentence of punishment from a jury. For, though the stat. Westm. 2, c. 39, declares, That such person as shall be convicted of resisting the Sheriff, shall be punished at the king's pleasure, yet my lord Coke, in his exposition of these words, says, "That is, according to that which shall be, upon due proceeding, adjudged coram rege in the King's "Court of Justice; for no man can be punish'ed by absolute power, but secundum legem, et 'consuetudinem Angliæ, as hath been said before, in the exposition of Magna Charta, and elsewhere hath been often said.' (2 Inst. 454.) If a Judge could imprison for a libel, he must necessarily become what our law never warrants, that is, a Judge in his own cause; and if he could imprison during his pleasure, he would be possessed of an absolute power, which our constitution does not allow. The fact is, that great and good men have, at all times, been very tender of the liberty of the subject. Chief Baron Gilbert says, that When the Common Pleas proceeded on Clausum fregit, the defendant was under the same On this subject the following passage taken 'disadvantages as when he was arrested on from Mr. Evans's letter to sir Samuel Romillya Latitat." Upon which the annotator (who is deserving attention :

* Thus Mich. 8 Eliz. Rot. 1, Walsh was indicted for scandalising one sir Robert Catling, and the Court of Queen's-Bench, by saying, "My Lord Chief Justice is incensed against me; I cannot have justice, nor can I be heard, for it is made a court of conscience." See the Attorney General's Argument in the Case of the City of London, Quo Warranto, A. D. 1683, infra.

"As a great deal has been urged in favour of the privilege of the Commons to imprison for a Libel, by way of analogy to the practice of Courts of Justice, which, it is said, may commit for contempts, I shall beg leave to add a few words on that part of the subject. Lord Chief Baron Gilber. has stated, that, It is one part of the law of the land to commit for !contempts, and confirmed by the stat. Westin.2, c. 39." (list. of Com. Pleas, p. 25). Now, I must declare, that after looking into that statute, I cannot find any thing to warrant his assertion. All that the statute says, is, that many great men (who in those days had castles, fortresses, and liberties, wherein they used to secure themselves) had resisted the Sheriff in executing the King's writs; which, creating great inconvenience, the Sheriff is ordered to remove all obstructions to the execution of the process. The act, therefore, only applies to persons resisting the King's writs, and does not say a word about any other contempt. I must confess, that I cannot understand how Courts of Justice can imprison for a libel, without infringing upon Magna Charta. All that they can do, in a constitutional manner, is, in my opinion, to imprison such per$ons as commit contempts in facie curiæ; or, In other words, who occasion an immediate obstruction to the administration of justice, and, as such, are disturbers of the peace. But, even in those cases, I conceive that the Courts cannot constitutionally imprison during their

was well acquainted with the laws and constitution of his country,) observes- Here the 'Chief Baron candidly allows, that the arrest by Clausum fregit in the Common Pleas, and by the Latitat in the King's Bench, did lay the defendant under disadvantages. If the 'Chief Baron had said, under unwarrantable

oppressions in open violation of King John's "Great Charter, not only by subverting and "perverting the ancient process of the law in trespass, but also by an arbitrary and barbarous abuse of special bail: If the Chief ‹‹ Baron had stigmatized this process by Latitat "with the seemingly harsh, but richly merited "terms above mentioned, as sir Orlando "Bridgeman, Chief Justice of the Common "Pleas did, when the Latitat was first intro

duced into the King's Bench, he would perhaps have done no more than an honest indignation, at the innovation, would warrant." (Hist. of Com. Pleas, 3d. ed. p. 183.) As for discretion, I am for investing the Judges with as little as possible. We know, that some men view matters in a different light from that in which they are seen by others. The 'discretion of the Judge,' (says Mr. Gibbon very truly) is the first engine of tyranny; the laws of a free people should foresee and determine every question that may probably ' arise in the exercise of power and the transactions of industry.' (Decline and Fall, &c. v. 8. p. 111.)"

To this I will add the memorable words which were used by lord Camden in the case