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alleged contempt is merely a libel on the judge, without any reference to pending litigation and having no tendency to prejudice the course of justice, there seems no reason why the right to be tried by a jury given by the statute should be denied the accused. It is the failure to keep distinct the judge as an individual from the judge as a Court, exercising purely judicial functions, which is at the root of what confusion exists in the law on the subject; and it was the failure to observe this distinction as drawn in all the recent leading cases which led to what I submit is the erroneous decision of the Court in the above case of Reg. v. Gray.
The facts of the case are shortly these. A man was about to be tried at Birmingham Assizes for uttering obscene words and selling an obscene libel contained in a book. Prior to the commencement of the case the judge addressed the representatives of the press at some length, pointing out that there was no protection given to a newspaper for the publication of obscene matter, and warned them that, if he found his advice disregarded, he should make it his business to see that the law was enforced. The case was then tried, and the accused was found guilty and sentenced the same day. On the afternoon of the following day there appeared in a Birmingham evening paper an article commenting on the judge's address to the representatives of the press. It contained the following passages: No newspaper can exist except upon its merits, a condition from which the Bench, happily for Mr. Justice is exempt.' 'Mr. Justice would do well to master the duties of his own profession before undertaking the regulation of another.' The rest of the article was vulgar personal abuse and scurrilous comment inexcusable under any circumstances, but in no way reflecting on the judge's judicial capacity. The judge referred to took no action in his own Court at Birmingham with reference to the article, but the Attorney-General some days after its appearance took proceedings against the publisher before a Divisional Court in London. Although no special point was made of the sentences I have quoted, the article must be taken, for the purposes of the following argument, as having impugned the fitness of the judge for his post as well as having a tendency to bring him personally into contempt. The writer might have been prosecuted criminally or sued in a civil action. These are remedies available to every subject in such a case and the only ones available. Does the law give our judges jurisdiction in such a case to proceed against the offender summarily without a jury and without an indictment or information formulating a strict charge? In other words, has a judge for the protection of his private character or judicial reputation any rights or remedies not possessed by the ordinary citizen?
It must be noticed that when the article appeared there was no pending litigation. The prisoner had been tried, found guilty and sentenced on the previous day. Again, the comments contained in the article did not in any way deal with matters in litigation, but only referred to the judge's address on the responsibilities of reporters. Such an address, although, doubtless, on some occasions necessary, and, at any rate, always harmless, is no more within the Queen's Commissions of Oyer and Terminer and Gaol Delivery than are announcements of the reported relief of beleaguered towns and criticisms on the lack of patriotism shown by eminent clerics, which have lately been made from the Bench. It is, therefore, far from clear, unless stress is laid on the two vague puerile sentences which I have quoted from the article, that 'a scurrilous abuse of a judge in his character as a judge-scurrilous abuse in reference to his conduct while sitting under the Queen's Commission' or a 'scandalizing of the Court' was perpetrated, as the Lord Chief Justice declares in his judgment. It is manifest when the report of the case is read that the graramen of the offence in the minds of the judges was the vulgar personal attack on the judge. However, as the sentences I have quoted, if taken literally, do refer to the judge in his character as a judge, and the article undoubtedly constitutes the offence of scandalizing the Court,' as such conduct is termed by the Lord Chief Justice-using the words of Lord Hardwicke of the middle of the eighteenth century-the simple issue, therefore, to be considered, is whether the offence of 'scandalizing the Court' is punishable as contempt of Court in the present day.
In the first half of the eighteenth century it would seem from the definition of contempt of Court given in Viner's Abridgement, that 'a despising the dignity' of the Court was then considered to be contempt. When, however, the older cases are examined which are supposed to justify this view the facts show that the words which were held to scandalize' the Court were uttered concerning the Court and to its officers when serving process of the Court upon the offender. The offence would therefore come under the wellrecognized class of contempt known as that of opposing or obstructing the Court when acting strictly within its judicial province by conduct tending to interfere with the administration of justice. Such are the quaint cases of Witham v. Witham (3 Ch. Ca. 41) in the year 1669, where the Master of the Rolls resented what he called the familiarity of a defendant on whom one of his orders was served by the plaintiff, and of Phillips v. Hedges (Cooke's Reports, 132) in 1737, where the Chief Justice attached the defendant for damning him and his Court and saying 'that he neither cared for him or them' when service of process was made upon him in the
action. Indeed, in the old case of Roach v. Hall (2 Atk. 471) where Lord Hardwicke says, ' One kind of contempt is scandalizing the Court itself,' the statement is clearly obiter, as the matter for which the printer then was committed had reference to a case then pending in the Court. The same objection may be made with regard to the case of Reg. v. Almon (Wilmot's Opinions, 243) relied on by the present Lord Chief Justice when delivering his judgment in the recent Daily Argus case. Reg. v. Almon came before Chief Justice Wilmot in 1765, but the prosecution was dropped and no judgment was in fact delivered. The Chief Justice, however, having apparently only heard the argument for the Crown, wrote a very learned opinion on the general law of contempt. The contempt charged against Almon was that he had published a libel on the Court of King's Bench accusing it of a deliberate intention to defeat the Habeas Corpus Act, and if the case had been proceeded with he would doubtless have been committed. Such an accusation, if persisted in, would destroy public confidence in the Courts, and is clearly a more serious matter than mere personal abuse of a judge, however violent. It also falls into another class of offence, and even if the opinion of Chief Justice Wilmot is to be taken as sufficient authority for the proposition that it is contempt of Court to charge a judge with an intention to deny justice, the case falls short of being an authority under any canon of legal reasoning for declaring that violent abuse, however scurrilous, of a judge is also contempt at law. Wilmot C.J., in language expressing the high Tory conception of kingship, says that a libel on the Court is a reflection on the King,' and that the object of attachments in such cases was 'to keep a blaze of glory around' the Court. The one may have been a fact and the other sound policy in the early years of George III, when Wilkes in the North Briton published the grossest libels on both the King and his Courts with equal indifference; but the circumstances of our times call for no such insistence on the theoretical presence of the Sovereign in our Courts of law.
The above cases, I think, sum up all the authority which can be marshalled to suggest that 'scandalizing the Court' is punishable as contempt. It is to be observed that not one is a decision to the effect that conduct unaccompanied by circumstances showing an interference with the administration of the law in an actual case pending in the Courts can be punished as contempt. Not only is there a lack of authority for any such conclusion, but it will be seen that in recent times the authorities to the contrary are both numerous and overwhelming.
Before dealing with these authorities I cannot do better than
quote the words of the late Sir George Jessel and Lord Justice Bowen to show the general principles which should guide the judges in administering the law of contempt of Court. Sir George Jessel in a judgment delivered in 1876 (46 L. J. Ch. 375) says: 'This jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject.' Equally pertinent is what the late Lord Justice Bowen said only a few years ago: 'The object of the discipline enforced by the Court in case of contempt of Court is not to vindicate the dignity of the Court or the person of the judge but to prevent undue interference with the administration of justice' (Helmore v. Smith, 35 Ch. D. 449). These are the opinions of two of our most distinguished judges in modern times, famed not only for their grasp of legal principles but also for their power to apply long-settled principles to the exigencies of modern society under conditions never contemplated at the time they were framed.
It will be found from the cases to which I am about to refer that, as Lord Justice Bowen says, the whole object of the law of contempt of Court is to prevent interference with the administration of justice in cases pending in the Court. It is a weapon which may not be used by the Courts for any other purpose. To obtain redress for a libel a judge must have recourse to the ordinary civil tribunal or prosecute the offender criminally just as a Prime Minister is obliged to do. Indeed it is only a few years since Lord Salisbury was compelled to take such action. To show how necessary it is that a case must be pending before the Court has jurisdiction, it suffices to refer to Onslow's and Whalley's case (L. R. 9 Q. B. 219), one of the contempt of Court cases which fringed the famous Tichborne trials. Messrs. Onslow and Whalley had made public speeches on the eve of the trial of the Claimant for perjury, alleging that there existed a conspiracy against him, and that he could not get a fair trial. The speeches were delivered in London between the finding of a true bill by the grand jury and the actual trial, and it was contended that as the trial had not commenced no contempt had been committed. Lord Cockburn, however, decided that the case was 'pending' because a true bill had been found, and therefore the objection was unsound. The words used-suggesting that the judges who were to try the Claimant would not give him a fair trial-were certainly 'a scandalizing of the Court' in Chief Justice Wilmot's sense. Lord Cockburn suggests no such ground for his
judgment, but says: 'It is clear that this Court has always held that comments made on a criminal trial or other proceedings, when pending, is an offence against the administration of justice and a contempt of the authority of this Court' (see p. 227 of the report). If a Court was ever 'scandalized' in a legal sense it was by the defendant in Skipworth's case (L. R. 9 Q. B. 230), another contempt of Court prosecution arising out of the Tichborne litigation. Mr. Skipworth in a public speech at Brighton had said: 'I could see there was no chance of justice being done by those four judges from the first.' 'I say that Lord Chief Justice Cockburn was not the fit person to try anything in connexion with the case.' Again, there is no suggestion that the contempt of 'scandalizing' the Court had been committed; but, instead, we have the following very conclusive words of Mr. Justice Blackburn, who delivered the judgment of the Court:-The phrase, contempt of Court, often misleads persons not lawyers, and causes them to misapprehend its meaning and to suppose that a proceeding for contempt of Court amounts to some process taken for the purpose of vindicating the personal dignity of the judges and protecting them from personal insults as individuals.' And he, again, in explaining how the Court's jurisdiction arises, explains that the offence is committed when an action is pending and anything is done which has a tendency to obstruct the ordinary course of justice or to prejudice the trial.' The same test was also rigidly applied by Lord Esher, the late Master of the Rolls: All that is necessary is that it should be a contemptuous interference with judicial proceedings in which the judge is acting as a judicial officer.' (In re Johnson, 22 Q. B. D. at p. 71.)
The above authorities would seem to be sufficient for my purpose, but there are two quite recent cases so directly on all fours with that of the Daily Argus that the consideration of the matter would be incomplete without a reference to them.
The first was a special reference in 1893 to the Privy Council. in relation to the action of the Chief Justice of a Crown colony 1, and the matter was heard by a very strong committee consisting of Lord Herschell L.C., Lords Coleridge L.C.J., Watson, Esher M.R., Lord Justice Bowen and other judges. The Chief Justice of the Crown colony in question had committed to prison for contempt of Court the publisher of a paper in which the following comments upon him had appeared. Penny readings, daughters of Ruth, Mrs. N― J and W. C. T. U. have all felt the fostering 'Some cynic has said "Every man has to know that the "fount of justice in  A. C. 138.
touch of his strong hand.' his price." It is assuring