Chapter VII: Part 7

The fact that nobody wants _Hansard_ is not necessarily a rebuff to Parliamentary eloquence, yet these low prices jump with the times and undoubtedly indicate an impatience of oratory. We talk more than our ancestors, but we prove our good faith by doing it very badly. We have no Erskines at the Bar, but trials last longer than ever. There are not half a dozen men in the House of Commons who can make a speech, properly so called, but the session is none the shorter on that account. _Hansard's Debates_ are said to be dull to read, but there is a sterner fate than reading a dull debate: you may be called upon to listen to one. The statesmen of the time must be impervious to dulness; they must crush the artist within them to a powder. The new people who have come bounding into politics and are now claiming their share of the national inheritance are not orators by nature, and will never become so by culture; but they mean business, and that is well. Caleb Garth and not George Canning should be the model of the virtuous politician of the future.

CONTEMPT OF COURT

The late Mr. Carlyle has somewhere in his voluminous but well-indexed writings a highly humorous and characteristic passage in which he, with all his delightful gusto, dilates upon the oddity of the scene where a withered old sinner perched on a bench, quaintly attired in red turned up with ermine, addresses another sinner in a wooden pew, and bids him be taken away and hung by the neck until he is dead; and how the sinner in the pew, instead of indignantly remonstrating with the sinner on the bench, 'Why, you cantankerous old absurdity, what are you about taking my life like that?' usually exhibits signs of great depression, and meekly allows himself to be conducted to his cell, from whence in due course he is taken and throttled according to law.

This situation described by Carlyle is doubtless mighty full of humour; but, none the less, were any prisoner at the bar to adopt Craigenputtock's suggestion, he would only add to the peccadillo of murder the grave offence of contempt of court, which has been defined 'as a disobedience to the court, an opposing or despising the authority, justice, and dignity thereof.'

The whole subject of Contempt is an interesting and picturesque one, and has been treated after an interesting and picturesque yet accurate and learned fashion by a well-known lawyer, in a treatise[A] which well deserves to be read not merely by the legal practitioner, but by the student of constitutional law and the nice observer of our manners and customs.

[Footnote A: _Contempt of Court, etc._ By J.F. Oswald, Q.C. London: William Clowes and Sons, Limited.]

An ill-disposed person may exhibit contempt of court in divers ways--for example, he may scandalize the the court itself, which may be done not merely by the extreme measure of hurling missiles at the presiding judge, or loudly contemning his learning or authority, but by ostentatiously reading a newspaper in his presence, or laughing uproariously at a joke made by somebody else. Such contempts, committed as they are _in facie curiae_, are criminal offences, and may be punished summarily by immediate imprisonment without the right of appeal. It speaks well both for the great good sense of the judges and for the deep-rooted legal instincts of our people that such offences are seldom heard of. It would be impossible nicely to define what measure of freedom of manners should be allowed in a court of justice, which, as we know, is neither a church nor a theatre, but, as a matter of practice, the happy mean between an awe-struck and unmanly silence and free-and-easy conversation is well preserved. The practising advocate, to avoid contempt and obtain, if instructed so to do, a hearing, must obey certain sumptuary laws, for not only must he don the horsehair wig, the gown, and bands of his profession, but his upper clothing must be black, nor should his nether garment be otherwise than of sober hue. Mr. Oswald reports Mr. Justice Byles as having once observed to the late Lord Coleridge whilst at the Bar: 'I always listen with little pleasure to the arguments of counsel whose legs are encased in light gray trousers.' The junior Bar is growing somewhat lax in these matters. Dark gray coats are not unknown, and it was only the other day I observed a barrister duly robed sitting in court in a white waistcoat, apparently oblivious of the fact that whilst thus attired no judge could possibly have heard a word he said. However, as he had nothing to say, the question did not arise. It is doubtless the increasing Chamber practice of the judges which has occasioned this regrettable laxity. In Chambers a judge cannot summarily commit for contempt, nor is it necessary or customary for counsel to appear before him in robes. Some judges object to fancy waistcoats in Chambers, but others do not. The late Sir James Bacon, who was a great stickler for forensic propriety, and who, sitting in court, would not have allowed a counsel in a white waistcoat to say a word, habitually wore one himself when sitting as vacation judge in the summer.

It must not be supposed that there can be no contempt out of court. There can. To use bad language on being served with legal process is to treat the court from whence such process issued with contempt. None the less, considerable latitude of language on such occasions is allowed. How necessary it is to protect the humble officers of the law who serve writs and subpoenas is proved by the case of one Johns, who was very rightly committed to the Fleet in 1772, it appearing by affidavit that he had compelled the poor wretch who sought to serve him with a subpoena to devour both the parchment and the wax seal of the court, and had then, after kicking him so savagely as to make him insensible, ordered his body to be cast into the river. No amount of irritation could justify such conduct. It is no contempt to tear up the writ or subpoena in the presence of the officer of the court, because, the service once lawfully effected, the court is indifferent to the treatment of its stationery; but such behaviour, though lawful, is childish. To obstruct a witness on his way to give evidence, or to threaten him if he does give evidence, or to tamper with the jury, are all serious contempts. In short, there is a divinity which hedges a court of justice, and anybody who, by action or inaction, renders the course of justice more difficult or dilatory than it otherwise would be, incurs the penalty of contempt. Consider, for example, the case of documents and letters. Prior to the issue of a writ, the owner of documents and letters may destroy them, if he pleases--the fact of his having done so, if litigation should ensue on the subject to which the destroyed documents related, being only matter for comment--but the moment a writ is issued the destruction by a defendant of any document in his possession relating to the action is a grave contempt, for which a duchess was lately sent to prison. There is something majestic about this. No sooner is the aid of a court of law invoked than it assumes a seizin of every scrap of writing which will assist it in its investigation of the matter at issue between the parties, and to destroy any such paper is to obstruct the court in its holy task, and therefore a contempt.

To disobey a specific order of the court is, of course, contempt. The old Court of Chancery had a great experience in this aspect of the question. It was accustomed to issue many peremptory commands; it forbade manufacturers to foul rivers, builders so to build as to obstruct ancient lights, suitors to seek the hand in matrimony of its female wards, Dissenting ministers from attempting to occupy the pulpits from which their congregations had by vote ejected them, and so on through almost all the business of this mortal life. It was more ready to forbid than to command; but it would do either if justice required it. And if you persisted in doing what the Court of Chancery told you not to do, you were committed; whilst if you refused to do what it had ordered you to do, you were attached; and the difference between committal and attachment need not concern the lay mind.

To pursue the subject further would be to plunge into the morasses of the law where there is no footing for the plain man; but just a word or two may be added on the subject of punishment for contempt. In old days persons who were guilty of contempt _in facie curiae_ had their right hands cut off, and Mr. Oswald prints as an appendix to his book certain clauses of an Act of Parliament of Henry VIII. which provide for the execution of this barbarous sentence, and also (it must be admitted) for the kindly after-treatment of the victim, who was to have a surgeon at hand to sear the stump, a sergeant of the poultry with a cock ready for the surgeon to wrap about the stump, a sergeant of the pantry with bread to eat, and a sergeant of the cellar with a pot of red wine to drink.

Nowadays the penalty for most contempts is costs. The guilty party in order to purge his contempt has to pay all the costs of a motion to commit and attach. The amount is not always inconsiderable, and when it is paid it would be idle to apply to the other side for a pot of red wine. They would only laugh at you. Our ancestors had a way of mitigating their atrocities which robs the latter of more than half their barbarity. Costs are an unmitigable atrocity.

5 EDWARD VII., CHAPTER 12

The appearance of this undebated Act of Parliament in the attenuated volume of the Statutes of 1905 almost forces upon sensitive minds an unwelcome inquiry as to what is the attitude proper to be assumed by an emancipated but trained intelligence towards a decision of the House of Lords, sitting judicially as the highest (because the last) Court of Appeal.

So far as the _parties_ to the litigation are concerned, the decision, if of a final character, puts an end to the _lis_. Litigation must, so at least it has always been assumed, end somewhere, and in these realms it ends with the House of Lords. Higher you cannot go, however litigiously minded.

In the vast majority of appeal cases a final appeal not only ends the _lis_, but determines once for all the rights of the parties to the subject-matter. The successful litigant leaves the House of Lords quieted in his possession or restored to what he now knows to be his own, conscious of a victory, final and complete; whilst the unsuccessful litigant goes away exceeding sorrowful, knowing that his only possible revenge is to file his petition in bankruptcy.

This, however, is not always so.

In August, 1904, the House of Lords decided in a properly constituted _lis_ that a particular ecclesiastical body in Scotland, somewhat reduced in numbers, but existent and militant, was entitled to certain property held in trust for the use and behoof of the Free Church of Scotland. There is no other way of holding property than by a legal title. Sometimes that title has been created by an Act of Parliament, and sometimes it is a title recognised by the general laws and customs of the realm, but a legal title it has got to be. Titles are never matters of rhetoric, nor are they _jure divino_, or conferred in answer to prayer; they are strictly legal matters, and it is the very particular business of courts of law, when properly invoked, to recognise and enforce them.

In the case I have in mind there were two claimants to the subject-matter--the Free Church and the United Free Church--and the House of Lords, after a great argle-bargle, decided that the property in question belonged to the Free Church.

Thereupon the expected happened. A hubbub arose in Scotland and elsewhere, and in consequence of the hubbub an Act of Parliament has somewhat coyly made its appearance in the Statute Book (5 Edward VII., chapter 12) appointing and authorizing Commissioners to take away from the successful litigant a certain portion of the property just declared to be his, and to give it to the unsuccessful litigant.

The reasons alleged for taking away by statute from the Free Church some of the property that belongs to it are that the Free Church is not big enough to administer satisfactorily all the property it possesses; and that the State may reasonably refuse to allow a religious body to have more property than it can in the opinion of State-appointed Commissioners usefully employ in the propagation of its religion. Let the reasons be well noted. They have made their appearance before in history. These were the reasons alleged by Henry VIII. for the suppression of the smaller monasteries. The State, having made up its mind to take away from the Free Church so much of its property as the Commissioners may think it cannot usefully administer, then proceeds, by this undebated Act of Parliament, to give the overplus to the unsuccessful litigant, the United Free Church. Why to them? It will never do to answer this question by saying because it is always desirable to return lost property to its true owner, since so to reply would be to give the lie direct to a decision of the Final Court of Appeal on a question of property.

In the eye--I must not write the blind eye--of the law, this parliamentary gift to the United Free Church is not a _giving back_ but an _original free gift_ from the State by way of endowment to a particular denomination of Presbyterian dissenters. In theory the State could have done what it liked with so much of the property of the Free Church as that body is not big enough to spend upon itself. It might, for example, have divided it between Presbyterians generally, or it might have left it to the Free Church to say who was to be the disponee of its property.

As a matter of hard fact, the State had no choice in the matter. It could not select, or let the Free Church select, the object of its bounty. The public sense (a vague term) demanded that the United Free Church should not be required to abide by the decision of the House of Lords, but should have given to it whatever property could, under any decent pretext of public policy and by Act of Parliament, be taken away from the Free Church. If the pretext of the inability of the Free Church to administer its own estate had not been forthcoming, some other pretext must and would have been discovered.

Having regard, then, to 5 Edward VII., chapter 12, how ought one to feel towards the decision of the House of Lords in the Scottish Churches case? In public life you can usually huddle up anything, if only all parties, for reasons, however diverse, of their own, are agreed upon what is to be done. Like many another Act of Parliament, 5 Edward VII., chapter 12, was bought with a sum of money. Nobody, not even Lord Robertson, really wanted to debate or discuss it, least of all to discover the philosophy of it. But in an essay you can huddle up nothing. At all hazards, you must go on. This is why so many essayists have been burnt alive.

_First_.--Was the decision wrong? 'Yes' or 'No.' If it was right--

_Second_.--Was the law, in pursuance of which the decision was given, so manifestly unjust as to demand, not the alteration of the law for the future, but the passage through Parliament, _ex post facto_, of an Act to prevent the decision from taking effect between the parties according to its tenour?

_Third_.--Supposing the decision to be right, and the law it expounded just and reasonable in general, was there anything in the peculiar circumstances of the successful litigant, and in the sources from which a considerable portion of the property was derived, to justify Parliamentary interference and the provisions of 5 Edward VII., chapter 12?

_Number Three_, being the easiest way out of the difficulty, has been adopted. The _decision_ remains untouched, the _law_ it expounds remains unaltered--nothing has gone, except the _order_ of the Final Court giving effect to the untouched decision and to the unaltered law. _That_ has been tampered with for the reasons suggested in _Number Three_.

John Locke was fond of referring questions to something he called 'the bulk of mankind'--an undefinable, undignified, unsalaried body, of small account at the beginning of controversies, but all-powerful at their close.

My own belief is that eventually 'the bulk of mankind' will say bluntly that the House of Lords went wrong in these cases, and that the Act of Parliament was hastily patched up to avert wrong, and to do substantial justice between the parties.

If asked, What can 'the bulk of mankind' know about law? I reply, with great cheerfulness, 'Very little indeed.' But suppose that the application of law to a particular _lis_ requires precise and full knowledge of all that happened during an ecclesiastical contest, and, in addition, demands a grasp of the philosophy of religion, and the ascertainment of true views as to the innate authority of a church and the development of doctrine, would there be anything very surprising if half a dozen eminent authorities in our Courts of Law and Equity were to go wrong?

Between a frank admission of an incomplete consideration of a complicated and badly presented case and such blunt _ex post facto_ legislation as 5 Edward VII., chapter 12, I should have preferred the former. The Act is what would once have been called a dangerous precedent. To-day precedents, good or bad, are not much considered. If we want to do a thing, we do it, precedent or no precedent. So far we have done so very little that the question has hardly arisen. If our Legislature ever reassumes activity under new conditions, and in obedience to new impulses, it may be discovered whether bad precedents are dangerous or not.

THE END