056-NLR-NLR-V-01-In-the-Matter-of-the-of-JOHN-FERGUSON-for-a-Writ-of-Prohibition-against-the-Di.pdf
( 181 )
In the Matter of the Application of JOHN FERGUSON for aWrit of Prohibition against the District Judge of Colombo.
District Courts—Power of, to punish for contempt not committed ex facie—Appearance of accused— Plea to jurisdiction after application for time toadduce evidence—Ordinance No. 11 of 1808, s. 18—Power of SupremeCourt to issue writ of prohibition—Contempts cognizable by Superior andInferior Courts of Record.
When a party appears before a District Coart on a rale nisi issued onhim to show cause why he should not be attached for contempt, andnslts for time to adduce evidence, he is not precluded from subsequentlypleading to the jurisdiction of the Court.
A writ of prohibition is a remedy ex debito justitice, and lies before orafter sentence, and it is not necessary that a party applying for it should,as in applications for injunctions, show that he would be otherwisewithout remedy.
If a party have two remedies given him by law, the existence of onewill not prevent his taking advantage of the other, particularly if thelatter remedy is likely to be more prompt and certain than the former.And so, a writ of prohibition on a District Judge may issue in cases inwhich an appeal lies upon his orders.
A District Court is a Court of Record, and has power to punishsummarily contempts committed in the face of the Court, such asinsult to the Judge, interruption of the proceedings of the Court, dis-obedience to its lawful orders or process, obstruction to its officers inthe execution of its processes or orders, &c.
District Courts cannot be viewed as representing in this Colonythe Superior Courts of Law and Equity in England, and they have notthe powers vested in these Courts as to summary attachment for con-tempts in respect of acts done out of Court.
The Supreme Court of Ceylon has all the powers for punishing forcontempt, wherever committed in this Island, possessed by the SuperiorCourts of Westminster.
Seville, there is no distinct recognition in Roman-Dutch lawauthorities of the right of a Judge to deal summarily with contemptsnot committed in the face of the Court, nor committed by way ofobstruction to its ordeTS, or with reference to any suit or proceedingpending in the Court.
187i.
Ort. 18 and
Nov. 3.
npHE facts of this matter are fully stated in the judgmentof the Supreme Court.
Ferdinands, with Altvis, appeared for the applicant.
Samuel Grenier, for Mr. Thomas Berwick, the District Judge ofColombo.
Cur. adv. vult.
3rd November, 1874.
The following judgment of the Collective Court, consisting ofMorgan, A.C.J., Stewart and Cayley, J.J., was deliveredby Morgan, A.C.J.:—
This is an application for a writ of prohibition to restrain theDistrict Judge of Colombo from further proceeding in the matter
( 182 )
1874.Hand
Not. 3.
of a certain rale nisi issued by him against one of the Editorsof the Observer newspaper, calling upon him to show causewhy he should not be attached for the publication of an allegedfalse and defamatory libel on the administration of justice andthe conduct of judicial business in the District Court of Colombo,contained in the form of a letter entitled “ The Same,” and signed“A B C,” in the issue of the newspaper of Friday, the 25thSeptember.
This Court, having heard counsel in support of the applicationon the 6th ultimo, considered that cause had been shown for arule mat being granted, and ordered the same to issue with astay of proceedings in the District Court until the applicationfor the writ of prohibition could be disposed of in this Court.The rule came on for hearing on the 16th ultimo, when botHparties were ably represented, and this Court derived valuableassistance from the arguments advanced and the authoritiesquoted by the counsel respectively.
Certain preliminary objections were taken to the prohibitionapplied for, on the grounds (1) that the applicant havingappeared before the District Court, and having failed to take atthe outset a plea to the jurisdiction, but having, on the contrary,asked for time to adduce evidence, was debarred from afterwardstaking such objection; (2) that prohibition only lies after sentence ;(3) that the applicant has failed to show, as it was necessary for himto do, that the refusal of the writ would leave him without remedy;and (4) that prohibition was not the proper remedy, inasmuch asa full right of appeal is given to parties aggrieved by the order ofa District Court.
The parties are not agreed as to whether the applicant appliedfor time to call evidence only, or to show cause generally, adducingevidence if necessary. But this is not material, for in appealsfrom the decision of Police Courts, where, as in applications likethe present, there are no written pleadings, this Court commonlyallows objections to the jurisdiction to be made, although not takenin the first instance. It may be observed, moreover, that thecourse adopted by the District Court in the present case was anovel one, and the proceedings being of a summary nature, theapplicant might reasonably be unprepared, in the first instance,to take all the objections to which they were fairly open.
The case is not one of a criminal information or of a civil suitin a District Court, where the defendant, who is required to enterinto a formal plea, is bound to plead to the jurisdiction, if heintends to rely on that defence ; and consequently it is not such acase as is provided for by the 78th section of Ordinance No. 11 of
( 183 )
1868. It is also to be observed that the present objection is notone of jurisdiction simply. It relates not merely to the com*petency of the District Judge to take judicial cognizance of acertain act, bat to the mode of procedure to be adopted. Indeed,it goes to the whole root of the case.
With regard to the second and third objections, we may observethat a writ of prohibition is a remedy ex debito justitice, and liesbefore or after sentence (7 Com. Digest, Prohibition, D), and that itis not necessary that a party applying for this writ should, as inapplications for injunctions, show that he would be otherwisewithout remedy. As to the fourth objection, it may be answeredthat the relief of appeal may not prove adequate, for it is left(discretionary with a Court to stay the execution of a sentencepending appeal.
If a party have two remedies given him by law, the existence ofthe one will not prevent his taking advantage of the other, parti-cularly if the latter remedy is likely to be more prompt andcertain than the former. If, indeed, a prohibition will notissue in any case in which an appeal could lie, it iB difficult to seeto what cases arising in the District Courts it could ever be madeapplicable ; for the appellate jurisdiction of the Supreme Courtextends to the correction of all errors of fact or law committedby the District Courts ; there is an appeal against any order,whether final or interlocutory ; and yet the power of issuingwrits of prohibition is given to the Supreme Court by the Charterand the Ordinance No. 11 of 1868, without any qualification.
The preliminary objections being thus disposed of, the right ofthe applicant to the writ applied for remains next to be con-sidered. That right is based on the alleged want of jurisdictionin a District Court to punish contempts not committed in theface of the Court, or by way of obstruction to its lawful orders orprocess.
This is set out in the affidavit on which the application forprohibition is based, and, on reference to the newspaper contain-ing the letter constituting the alleged contempt, which is filed ofrecord, it appears to contain comments on the conduct of judicialbusiness in the Court, having no reference, however, to anypending cause.
A Court empowered like onr District Courts to fine and imprisonand to keep a record of its proceedings is a Court of Record(Hawkins' Pleas of the Crown, cap. 1, section 14), and Courts ofRecord have undoubtedly the power to punish summarilycontempts committed in the face of the Court. Such power isinherent in such Courts, and rests on the necessity of preserving
1874.
Oct. 18 andNov. 3.
1874.
Oct. 18 and
Nov. 3.
( 18* )
for them that decent respect, -without which they cannot carryon their proceedings or maintain their just authority.
It would be difficult to give a specific enumeration of such actsof contempt, but they may be referred to generally as includingany insult to the Judge while in the discharge of his duties, suchas interruption of the proceedings of the Court, disobedienceto its lawful orders or process, obstruction to its officers in theexecution of its process or orders, and other acts of a like nature.
The question for consideration, however, in this case is morelimited in its character.
It is contended by the learned counsel for the applicant that,though Courts of Record have power to punish contempts com-mitted in the face of the Court or by way of obstruction to itcr^lawful order or process, yet that contempts such as the act inquestion can fall within the cognizance of Superior Courts only ;and this point was fully argued on both sides. The immediatequestions for consideration, therefore, are (1) the existence ofsuch distinction ; and if this be established, (2) whether ourDistrict Courts are to be considered Superior or Inferior Courts.
As to the existence of such distinction, all the reportedEnglish cases, in which the power of summarily punishingcontempts committed not in the face of the Court or by way ofobstruction to its orders has been upheld, are cases from theSuperior Courts and the Court of Assize and nisi prius, of whichlatter the Lord Chief Baron, in delivering the judgment in exparte Fernandez, observed that it was a Superior Court. “ The“ Court,” said Mr. J. Willes, “ held for that purpose” (Judge Bittingat nisi prius for the trial of Crown causes) “ is the Superior“ Court itself, sitting by one of its members, with a jurisdiction“ limited for a time to certain special matters, but with all the“powers of the Supreme Court as to such matters.” (1 Jur.,pt. 1,p. 529; SO L. J. Exch. 86).
The particular question as to the right of Inferior Courtsto punish contempts committed out of Court arose in the caseof ex parte Jolliffe, which came before the Queen’s Bench lastyear. At the hearing of a case, a County Court Judge madeobservations reflecting upon the conduct of an attorney. Whilethe case was pending, the attorney published letters in a newspaper,accusing the Judge of tyranny and injustice. The Judge citedthe attorney to appear before him for contempt of court. A rulefor prohibiting to restrain the Judge from taking proceedingshaving been applied for, a discussion arose as to the power ofInferior Courts of Record to commit persons for contempt inrespect of acts done out of Court (Law Times, November 23.
( 185 )
1873). Mr. Jnstice Blackburn asked the counsel pointedly if hewas aware of any authority as to the power of an Inferior Courtof Recqrd to take cognizance of such contempts. Sir J. Karslakecould not cite any express decision precisely in point, butreferred to two cases, one from the Isle of Man (re Crawford,3 Jur. 955) and the other from British Guiana (MacDermott,5 Moore P. G. 469), adding that they were both cases from theSupreme Court of those places.
The Supreme Court of the Isle of Man, as the Court of Chancery,is in no way subject to the jurisdiction of the Court of Chanceryin England, and the powers given to the Court of British Guianaare very much the same as those possessed by the Supreme Court ofthis Colony. The rule in ex parte Jolliffe came on for argument onFebruary 8,1873; and on the general question (42 L. J., Q. B. 121)Lord Chief Justice Cockburn expressed himself as follows :—
It is very true that it is laid down by high authorities, and it is accordingto the reason of the thing, that every Court of Record has power to fineand imprison for contempt committed in the face of the Court, while theCourt is sitting in the administration of justice. Such a power is obviouslynecessary for the administration of public justice, which may be interruptedor obstructed unless there is a power to summarily repress such outrages.But it is a very different thing to say that a Court shall have power to fineand imprison for contempts not committed in the face of the Court, andnot amounting to an actual obstruction of the course of justice, but only tothe use of contumelious language, or the publication of articles or commentsreflecting on the conduct of the Judge. It is laid down in Hawkins (Pleatsof the Croton) and other writers of authority that the power of committingfor contempts committed in the face of the Court is given to InferiorCourts, but it is nowhere said that they have power so to punish contemptscommitted out of Court. There is an obvious distinction between InferiorCourts created by statute, and Superior Courts of Law and Equity. In theseSuperior Courts the power of committing for contempt is inherent in theirconstitution, has been coeval with their original institution, and has beenalways exercised. The origin can be traced to the time when all the Courtswere divisions of the Great Curia Regis—the Supreme Court of theSovereign—in which he personally, or by his immediate representative, sat toadminister justice. The power of the Courts in this respect was therefore anemanation from the royal authority, which, when exercised personally or in th6presence of the Sovereign, made a contempt of the Crown punishable sum-marily, and this power passed to the Superior Courts when they were created.
It is a very different thing when we come to the Inferior Courts, whichhave never exercised this power, or have never been recognized as possessingit, and I should be prepared to hold that it does not exist.
Can our District Courts, then, be regarded as Superior Courtsin the sense in which the word was used in the decision lastreferred to ? Superior and inferior are relative terms, and ourDistrict Courts undoubtedly have powers much larger than thoseappertaining to English County Courts. It does not follow,however, that they are therefore Superior Courts in the sense in
VOL. I.2 b
1874.
Oet. 18 aniNov. 3.
1874.
Oct. 16 and
Nor. 3.
( 186 )
which the Superior Courts at Westminster and the High Court ofChancery are Superior Courts.
A case came on in appeal before this Court in 1861 from theDistrict Court of Kandy, in which that Court claimed the right toissue writs of habeas corpus. The constitution of District Courtsand their jurisdiction were considered in that case, and wecannot do better than quote from the judgment of the CollectiveCourt delivered by Sir Edward Creasy on the point (D. G., Kandy,6,625, in re Shaw, Rdmanathan's Rep., 1860-62, p. 116) :—
When we consider the general nature and character of the District Courtsin this Island, we find that (as their name imports) they have jurisdictionnot over the whole Island, but each over a limited area. Within these limitseach District Court has jurisdiction over all civil pleas, suits, and actions,over idiots and lunatics, over administrations and revenue causes, and overmatrimonial causes.
There is a criminal jurisdiction also, but that jurisdiction does notextend to offences of a grave character, which the provisos in the Charterand in the subsequent Ordinances in that respect define. An appeal from anyproceedings of the District Court lies to the Supreme Court, which also mayissue writs of mandamus, procedendo, and prohibition to the District CourtsThe jurisdiction of the Supreme Court is general over the Island, and it hasexpressly given to it an original jurisdiction in respect of all crimes andoffences wheresoever in the Island they are alleged to have been committed.The Charter gives it expressly the power to issue writs of habeas corpus;and a subsequent Ordinance gives that power to any Judge of the SupremeCourt, at all times ai d in any part of the Island.
After thus generally setting out the jurisdiction of the DistrictCourt, the learned Judge proceeded to consider whether thoseCourts had the right to issue writs of habeas corpus. “We are“ quite clear,” he proceeded to say, “ that the District Courts have“ it not. Were we to decidf as desired by the respondent, we“should decide that a Court of limited criminal authority can“ issue process in the course of which it must deal with committals“for offences expressly set out of and above its jurisdiction ; and“ that an Inferior Court might by Buch process try the validity of“ committals by this, its Superior, Court. We should be giving this“ right to a mere local Court that can only act and enforce its orders“withinitsown limited area. Aboveall,weshould be forgetful of all“ sound constitutional principles if we were to uphold the present“ proceeding. Once more let us remember (and Lord Mansfield’s“ judgment in King v. Crowle, 2 Burrows, may remind us) what in“the eye of the law a proceeding by writ of habeas corpus is. The“ Sovereign is supposed to be acting and inquiring why one of her“subjects is deprived of his liberty. Here then we have an order“of the District Court of Kandy before us by which the Sovereign“is supposed to be acting and using one of her highest pre-rogatives in an Inferior and local Court, liable at any time to be
( 187 )
“controlled by mandamus,procedendo, or prohibition from this, its“Superior, Court, and subject in all matters to the appellate juris-diction of this, the Supreme Court of this part of Her Majesty’s“dominions.”
Here we may refer to a passage in 3 BlacksUme in support of theviews above quoted as to a partial and limited local jurisdictionbeing incompatible with the attributes inseparable from a SuperiorCourt:—“ These are the several species of Common Law Courts,“ which, though dispersed universally throughout the realm, are“ nevertheless of partial jurisdiction, and confined to particular“ districts, yet communicating with, and, as it were, members of“ the Superior Courts of a more extended and general nature, which“ are calculated for the administration of redress, not in any one“ lordship, hundred, or county only, but throughout the whole“ kingdom at large.”
Mr. Justice Byles, in his judgment in the case of ex parteFernandez, in pointing out several of the reasons why Courts ofAssize must be considered Superior Courts, refers, among othermatters, to the fact that the appeal, not as to error in fact, but onmatters of law, did not exist by the common law, to their un-limited powers as Courts for the trial of criminal offences ; totheir power of deciding on the lives of the Queen’s subjectswithout appeal; and to the high qualifications of the persons whoconstitute the Commission of Assize.
Now District Courts cannot b.e regarded as Superior Courts inthis sense. It is true that they are Courts invested with veryimportant functions, and with an unlimited original civil juris-diction within their own districts; but their jurisdiction isterritorially very limited in all cases, and in criminal matters isconfined to the trial and punishment of the lighter classes ofoffences. Unlike the Supreme Court and the Superior Courts atWestminster, a District Court has no control or superintendenceover any other tribunal whatsoever. An appeal lies to theSupreme Court for the correction of all errors of fact or lawcommitted by a District Court, and from all judgments and ordersof such Court whether final or interlocutory. The SupremeCourt, or any Judge thereof, has full power and authority to inspectand examine the records of District Courts ; and to transfer anycause or prosecution from one District Court to another wheneverthere is reason to conclude that the ends of justice will gain bysuch transfer. These District Courts are numerous (there beingat present nineteen), and it is cqppetent for the Governor by mereProclamation to increase or diminish their number. The SupremeCourt can by mandamus further enforce the due exercise by16-
1874.
Oet. tS andNov. 3.
1874.
Oct. 16 and
Nov. 3.
( 188 )
District Judges ol' their judicial and ministerial powers; can bycertiorari compel the production of their records, to the end thata party may have more sure and speedy justice; can by proce-dendo prevent those Courts delaying parties by not givingjudgment when they ought; and by prohibition can direct themto cease from prosecuting any cause or proceeding, if it appearthat the cause originally was not, or, owing to some collateralmatter arising therefrom, be not within their jurisdiction.
The Court was referred, under this head of the arrangement, tocertain local enactments, with the view of showing that thepowers of District Courts in cases of contempt were co-extensivewith those belonging to the Supreme Court. But they fail toshow this. The power to punish for contempts generally is not -expressly given to the Supreme Court by the Charter of 1801.
The 82nd clause gave power to that Court to issue mandates inthe nature of a writ of mandamus, certiorari, procedendo, orerror, and “ to correct or punish any contempt thereof, or wilful“ disobedience thereunto, by fine or imprisonment.” The power topunish for contempts generally—a power which, with the qualifica-tion already stated, is inherent in every Court—is not expresslygiven, nor is it, on the other hand, expressly taken away. TheRegulation No. 2 of 1816, which purports to regulate the practicein criminal proceedings before Provincial and Sitting Magistrates’Courts, described in that enactment as “Inferior Courts,”expressly provides that nothing therein contained “shall be“ construed to extend to or in any wise affect the proceedings or“ authority of the Supreme Court.” All cases of contempt were byit to be transmitted to the Advocate Fiscal, for that officer todecide whether such accusation was fitting to be tried before theSupreme Court or referred to an inferior jurisdiction ; in thelatter case, the matter was to be referred to the nearest Court tothat in which such contempt was committed. This Regulationwas amended by the Regulation No. 15 of 1820, which authorizesthe Provincial Courts and the Sitting Magistrates’ Courts ofColombo “ to punish by fine or imprisonment, or both, to the extent“ of their general powers in that respect, all contempts committed“before them before their own view, and also upon due proof, all“contempts of their process or of the officers acting in the execution“thereof.” Contempts alleged to have been committed before anySitting Magistrate other than the Magistrate of Colombo, or beforeany Justice of the Peace, were to be tried before the ProvincialCourt of the district, unless the same should have been committedfor trial before the Supreme Court. This Regulation expresslyprovides that nothing therein should be “ construed to extend to
( 189 )
“ or in any wise affect the proceedings or authority of the Supreme“ Court.” The Charter of 1833 contained no reference to the powerof the Supreme or District Courts (the two Courts which thatinstrument established) to dispose of cases of contempt; but itdrew the distinction between the two tribunals, and gave thelarger powers to the one over the other referred to in a precedingpart of this judgment. The Rules and Orders of Court framedunder the authority of the Charter, and promulgated with thatinstrument, provided for District Judges punishing by fine orimprisonment, or by both if necessary, “all contempts committed“ before themselves, and also upon due proof all contempts of their“process or of their officers acting in the execution thereof,” andalso directed that the form of proceeding prescribed by RegulationNo. 15 of 1820 was to be adhered to. That rule was repealed by asubsequent rule of the 21st October, 1844, but the effect of suchrepeal was only to leave the powers of the District Court asrespects contempts to be determined by reference to the generalconstitution of such Courts as established by the Charter. Certaincases were also quoted to show that District Courts have thereto-fore punished parties guilty of contempt. All those cases, however,refer to contempts committed in Court, or by way of obstructionto its lawful orders or process; such, for instance, as disobedienceof-proceaa(Marshall,p. 62); refusing to give evidence (ibid, pp. 63and 129); attempting to bribe an officer of the Court to steal arecord (D. C., Jaffna, 318, 1 Lorenz 15); acting in defiance of adecree of the Court (D. C., Colombo, 12,029, Morgan, p. 14) ;attempting to practise frauds on or through the Courts.
Brodie’s case, on the other hand (2 Lorenz, 85), drew the distinctionbetween Superior and Inferior Courts, and pointed out that in theformer aloue is vested the power of punishing contempts committednot in the face of the Court or in obstruction of its orders orprocess.
“ A contempt thus promptly punishable ” (by Courts of Recordgenerally), said Chief Justice Rowe, “ consists for the most part“ in contumelious or contumacious behaviour by words or acts in the“ face or in the immediate precincts of the Court.” “ Further, upon“thesame principle, in the Superior Courts of Record is vested the“power to fine and imprison, not only for contempts committed in“the face or in the precincts of the Court, but for contempt of or“disobedience to the process and judgments of such Courts wherever“within the realm, and whenever committed, for defamatory or“libellous matter touching the Court itself, or any of its J udges, when“acting in their judicial capacity.” “ It is in the Judges of the“ Supreme Court only, as in men whose education, experience, and
1874.
Oet. 10 andNov. 3.
1874.
Oct. 16 and
Not. 3.
( 190 )
“ habitual self-control exercised daily in the face of the public, the“ Bar, and the Press, may be presumed to qualify them to be safe“ depositories of such power, that this large discretionin committing“ for contempt is vested. To Inferior Courts the common law has“ conceded a more restricted jurisdiction.” Two other instances(ex parte Staples and ex parte Patterson) may be cited to showinstances of the Supreme Court having taken cognizance and dealtwith contempts committed not in the face of the Court or inobstruction of its process. Having thus considered the generallaw bearing on the subject, the Charter and local enactments onthe constitution and jurisdiction of the Supreme and theDistrict Courts, and the precedents to be gathered from ourrecords, we have come to the conclusion that the DistrictCourts, though discharging important functions, and exercising*unlimited civil jurisdiction, each within its district, cannot beviewed as representing in this Colony the Supreme Courts ofLaw and Equity in England; and that they have not thepowers, vested in those Courts, as to summary attachment forcontempts such as the one charged in this case. It is not materialfor the purposes of this case to consider whether or not theSupreme Court has those powers; but as the question has beensubmitted and argued, we have no hesitation in declaring that weare quite prepared to hold and maintain that this Court, as theSupreme judicial tribunal in and throughout this Island, vestedwith all the high prerogative powers conferred on it by the Crown,has all the. power of punishing for contempt, wherever committedin this Island, possessed by the Superior Courts of Westminster.
It was furthei* contended that, whatever the English law may be,the Roman-Dutch law gives District Judges the power claimedby the respondent in this case. We are not prepared to admit,without qualification, the authority of that law in matters purelyof procedure, and in Courts constituted and regulated, like ours,'under very different circumstances from the Courts of the UnitedProvinces. The proceeding adopted in this instance was entirelynnder the English law, and in accordance with its forms, and ourdecision is based on the English decisions, which have alwaysbeen recognized and acted upon in our Courts in matters ofcontempt. We fail to find, however, in the authorities quoted,and in those we have referred to, any distinct recognition of theright of a Judge to deal Bummarily with contempts againsthis authority such as the one charged in this case, i.e.,contempts committed not in the face of the Court nor by way ofobstruction to its orders, nor with reference to any suit or pro-ceeding pending in the Court. Voet, our leading Dutch Law
( 191 )
authority, lays down the rule, as it appears to ns, in accordancerather with the general rnle of the English law than with theposition advanced by the respondent’s counsel. “ The injury,” saysVoet (lib. 5, tit. 1, sect. 2), “ must be committed against a Judge notonly qua judtci but also munus implenti.” Gaill (Ohs. 39) laysdown the position that a Judge has in certain cases authority topunish summarily injuries done to himself, notwithstanding thegeneral rule that no one can act as Judge in his own cause ; butin such cases the injury must be done to the Judge utjudici, andmust be notoria, and he adds it would be otherwise “ si injuria“non esset evidens et notoria, sed altiorem probationem adhuc“ requireret: quo casuad superiorem recurrendum est, ut ipse tan-“ quam judex competens de ea cognoscat." An insult offered to aJudge in open Court would no doubt be (in the words of Gaill)tale notorium quod inficiari non possit, but the same cannot besaid of the contempt charged in this case; indeed, time was givento the applicant to adduce evidence, and the matter adjourned forfurther inquiry. It is clear from the nature of the case that itwas one which required an altior probatio before the applicantBhould be punished, and should, therefore, according to the rulelaid down by Gaill, have been referred to a higher tribunal. VanLeeuwen,in his Censura Forensis (part II., book II., c. 14) stronglyexpresses his disapproval of the practice in some tribunals of aJudge taking cognizance of a matter in which he is interested,notwithstanding that the act complained of is evidens et notorium.Such a practice, he says, “ neque legi neque rationi consentaneum“ mihi videtur, quicquid pro constitutionis aut indultee consuetu-“ dinis colore ajjingere nitantur alii.” We were referred to a passageof Christinaeus (vol. II., dec. 152), where he speaks of the power ofa Judge to punish wrongs done to himself; but he limits it to caseswhen the injuria is illata judice publics et maxims dum sedetpro tribunali. And he goes to say, “ Ideoque ad tuendam judicum“ dignitatem coercendamque temere riorum licentiam, supremus“senatus nunquam cegre tulit, juridicum, illatam sibi injuriam“pro tribunali sedentem ex temporali judicio vindicasse,” clearlyreferring to contempts either public and notorious, or committedin face of the Court. Damhouder (Praxis, Per. Crim., cap. XI.) isstill more explicit with regard to the power of a Judge to punishsummarily. After laying down the rule that JudgeB have powerto punish summarily offences committed before them in openCourt, he proceeds: “ Verum enimvero si crimen perpetratum“ fuerit prcesente testeque judice extra tribunal seu locum sena-“ torium, non pro tribunali sedente, /oris uspiam, procedendum“fuerit judici per inquisitionem, atque processus legitimo ritu
1874.
Out. IS mndFtt. 3.
1874.
Oct. to and
Nov. 3.
( 192 )
“ inatituendua. Quod scilicet ecritnen tali loco commissum, non“fuerit ipai notorium seu cognitum tanguam judici, aed veluti"private. Itaque eo casu omnia ordo judiciariua eat neceaaariua."
We may here notice some of the reasons for the distinctionbetween the powers of Superior and Inferior Courts in dealingwith oontempts, restricting the powers of the latter ConrtB to casesof actual contempt, i.e., cases of direct insult to or attack on theCourt itself, disobedience of its orders, or obstruction of itsprocess ; while to the former is given the right to take cognizance,not only of actual, but of constructive, contempts, such as attackson Judges, suitors, or witnesses, tending indirectly to interferewith the course of justice.
The reason for such distinction, given by Chief Justice Rowein the judgment in Brodie's case, may be inapplicable to the 1Judges of the Provincial towns, whose age and experience willguard them against the danger to which large and uncontrolledpowers may expose them.
But we have to deal with systems, not men, and we cannotshut our eyes to the danger of confiding such a power as the oneclaimed in this case to young men in remote stations ; a powerwhich, as Lord Abinger has observed in the cose of Rex v. Fatilk-ner (2 C. M. and R., p. 525), is a very important one, and requiresthe greatest nicety in its exercise.
Indeed, a careful study of the English decisions will show thateven the Judges of the Superior Courts have refrained frompursuing the course of summ'ary attachment, and have preferredthe procedure by criminal information, except in cases where thenature of the contempt called for instant action on the part ofthe Court; e.g., if the proceedings of a Court are impeded by dis-turbance during its sitting, or by obstruction of its process, ordisobedience of its orders. In ihe early case (1,742) of Roach v.Garden (2 Atkyns, 460), whilst evidence was being taken in apending case, a libel was published calculated to deter partiesfrom giving evidence in favour of one of the parties by excitingprejudice against him. Lord Hardwicke interfered summarilyby committing the guilty parties. In Rex v. Jollife (4 Term Rep.,285 and 1791), where the defendant awaiting his trial on acriminal information, distributed handbills in the assize townvindicating his own conduct and reflecting on the prosecutors,the case was postponed, and another information granted.
In Rex v. Fleet (1 B, and'Aid. 379,1818), where a partypublished in a newspaper a statemeut of the evidence given beforea coroner’s jury, accompanied with comments, the proceedingtaken was by information. So in the case of Sir Francis Burdett
( 193 )
(4 B. and Aid. 95 and 314, 1820). In the case of the Observer 1874.newspaper (Rex v. Clement, 4 B. and Aid. 218,1821) the sum-
mary proceeding was adopted becanse the case was one calling
for immediate repression. The defendant published proceedingscontrary to the express order of the Court in the course of a triallikely to continue for several successive days, there being otherprisoners also charged with the same offence, whose trials were tobe taken up one after the other. Summary proceeding was alsopursued in Rex v. Davidson (4 B. and Aid. 329,1821), but thatwas for contempt by a party in the course of addressing a jury,and for which he could not be indicted. Strong as was the caseof Rex v. Clement, yet two of the Judges, Littledale and Gaseley,
J. J., refused to act upon it. In the case of Rex v. Qilham(Moodey and Malkim, 165), a case of murder was to be triedduring the assize. Whilst it was being held, an artist wasexhibiting in the Town Hall of the Assize town models of themurdered woman, and of the supposed murderer, who was thento stand his trial. Application was made that he be committedfor contempt, but Mr. Justice Littledale said: “I think the“ exhibition highly indecorous and improper, and one that may“ subject the man to punishment; but it does not appear to me“ or to my learned brother to be a contempt; therefore I cannot“ interferein the mode proposed to commit the person exhibiting.”
And this decision has been followed by several decisions in theCourt of Queen’s Bench.
In Long Wellesley’s case (2 Russ, and Myl. 69, 1831), whenthe Court of Chancery punished a person for contempt for theclandestine removal of a ward from the custody of the personunder whom the guardians appointed by the Court had placed theward, and who, when examined by the Court, admitted the fact,but refused to state where the ward was, the necessity for promptand efficacious action was fully established and acknowledged bythe House of Commons, when Mr. Wellesley claimed the privilegeof Parliament. In Lechmere Charlton’s case (2 Mylne and Craig,
326,1837) the offender was punished for contempt for writing athreatening letter, and one provocative of a duel, to the masterwith reference to proceedings actually going on before the master,whom he had to meet daily. His offence was also repeated by thesending of another offensive letter to the Lord Chancellor. InVansanden’s case the contempt was the distribution of papers inand out of Court, but as in Rex. v. Gilham, the remedy pursuedwas by information. In the recent cases against Messrs. Whalley,Onslow, and Skipworth, the defamatory remarks were madeagainst witnesses who were forthcoming to prove the charge of
Vol. I.2 C
1874.
Oct. 16 andAire. 3.
( )
perjury, which the Chief Justice had directed to be broughtagainst the claimant, and against whom the grand jury had fonnda trne bill. It will thns be seen that evan the Judges of theSuperior Courts of Westminster have only followed the remedyof summary information in cases where a necessity existed forprompt action. In other cases they have left the matter to bedealt with by ordinary course of procedure.
We consider, for the reasons given, that it was not competentto the District Judge of Colombo to take the proceedings he didin this case; and the order of the Court is that the rule forprohibition allowed on the 6th ultimo should be, and the sameis hereby made absolute ; and the said District Judge is herebydirected to refrain from further proceeding in the matter of therule nisi issued by him against the Editor of the Observernewspaper, referred to in the first paragraph of this judgment.