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any respect, which, had his observations been applicable, he could have easily done. He reserved all remarks for his ad captandum address to the jury, and used the license of the Bar to an extent which means something like abuse of barristerial privilege.” And if Mr. Rogers drew the attention of the Court to this subject, it can scarcely be denied that it was the duty of the judge to advert to it, with the object either of supporting or countervailing the position of the counsel, according as, in His Honour's judgment, the circumstances warranted. Of course his judgment might be wrong. He might give countenance to a contention upon which he ought to frown. In such event, the Evening News, or any other newspaper, would be justified in criticising his performance, but not in describing his conduct as a degradation to the judicature, nor as that of one incapable of impartiality on the bench.
Let us now turn to the contempt of Court action. The sweeping condemnation of Mr. Justice Windeyer was printed in the Evening News of August 21st. Two days after the Supreme Court of its own motion ordered the Prothonotary to summon the publishers before it on that day week, to show cause why they should not be attached for contempt, and why such further order should not be made as to the Court should seem fit, for this publication. The matter was argued at considerable length, and from first to last an interval of over thirty days elapsed before judgment was delivered. ment in question is now a matter of history, and suffice it here, therefore, to make but a very few observations on the masterly and admirable statement of Chief Justice Sir James Martin. Considering the character of the audience to which the judgment may be said to have been especially addressed, it was not without fault. Sir James Martin cited as precedents only such cases as have come before the highest tribunals in the Empire. The newspaper critics accordingly sprang to the conclusion that the right of the superior courts to institute proceedings for contempt of their own motion had never been exercised in these colonies; whereas Australian cases on all-fours with that of the Evening News might be readily instanced.*
Only last year, a disappointed litigant, in the Supreme Court of Queensland, wrote to a newspaper, stating that the jury who had tried his case had mistaken the meaning of certain questions put to them by the judge. The Court ordered the writer of the letter to appear before it, and, notwithstanding that he made an abject apology, fined him £20 for contempt. In this case, too, the judge who was affected by the contempt, sat on the Supreme Court Bench—and actually delivered the judgment of the Court in the contempt case. In the Evening News matter, Mr. Justice Windeyer took no part whatever.
But I am in no way concerned to take notice of those who dispute the legal right of the Supreme Court to originate, and to adjudicate on, actions for contempt. That the Court does possess this right I assume to be incontrovertible. What remains to be discussed is the question of expedien cy. Is it appropriate for the judges themselves to try the questions of fact and law in cases wherein they, or any of them, are li belled ? The friends of the Evening News have lustily called for a jury, though, from the unkind treatment which that unfortunate journal has lately received at the hands of jurymen, one would conclude that such bodies would be the last it would be disposed to confront. It hinted that a young doctor was not quite so humane as he ought to be, and a jury mulcted it in the sum of £500. By a parity of reasoning, a jury before whom it was arraigned on a charge of describing a Supreme Court judge as utterly unfit for the judicial office, would return a verdict with damages stated in three ciphers, with a considerable digit at their head. Indeed, the argument in favour of a jury for the trial of contempt matters is put forward in some quarters on the ground that in this very case the criminated parties were let off with inadequate punishment. But there are weighty reasons against the transference of the power of deciding what is or is not a contempt from the Supreme Court to the jury-box. The great majority of contempts are committed in the face of the courts, and require to be summarily dealt with; but leaving these out of consideration, obviously it wou ld be highly inconvenient, and derogatory to the Court, to introduce the jury system. The Chief Justice, in his judgment in the E vening News case, put the matter in a very small compass. After showing that a criminal prosecution is the only way in which the aid of a jury could be invoked, His Honour proceeded to say
“This, in this colony, would involve in the first instance the filing of an information by the Attorney-General, which he might sanction or refuse at his pleasure. Supposing the information filed, the trial must be either before a judge of this Court or a chairman of Quarter Sessions. If before the latter, then we should have the conduct of this Court, or of some one of its judges, canvassed in the first instance by the District Court judge in his charge to the jury, and then by the jury, who in this inferior Court would have the power of deciding in effect upon the conduct of this Court-for that would necessarily be involved in every charge of contempt by comment upon this Court's proceedings. If, on the other hand, the right to try these prosecutions for contempt were confined to this Court itself, then we should have the judge giving his opinion to the jury one way, with the jury always invited, and sometimes successfully, to take a view at variance with the summing up. A contest more unseemly, more subversive of all respect for this tribunal, could not be imagined. The more this question is examined, the more plainly will appear the
wisdom of the old common law, which, for the general good, has clothed the Supreme Courts with the exclusive power of guarding their own dignity and punishing all contempts, whether committed in their presence or otherwise. The existence of this power has hitherto kept up that general and habitual respect for the Courts which has made its application so rarely necessary. Take away this power, and no man can say how long this wholesome respect will survive the deprivation.”
He must be a giant in argumentation who can overthrow these mighty words. There is really nothing to be said per contra. The Court has always had the power which some (I am afraid I must say unreflecting) people contend should be now taken away from it. The Court has always had the power, and has never abused it. The most thorough-going advocates of “the Liberty of the Press” in the recent controversy, have explicitly disavowed any sympathy with the language held by the Evening News, and have thus unwittingly conceded that the Court was in duty bound to take the action it did take. For let this be supposed, that, namely, with this grossly—libellous effusion flaunted in their faces, the judges had remained passive; what would be the obvious, the inevitable, conclusions? Surely none other than that these high publicists had no conception of their possessing such a thing as dignity, or honour, or integrity, to protect—that they no longer regarded themselves as the embodied guardian of the law and the fountain of justice—that they, bowing to the impeachment declaring one of them to be an utterly unjust judge, were ready to have the leaven of unjustice among them—nay, more, that as a body they were already half in the toils of turpitude, and might fittingly be rebuked in the dialect of Billingsgate by any unsuccessful litigant who so chose.
The man who rests content under a charge of improbity ought not to be further trusted. Universal experience teaches this; and the body of men which, being charged with the administration of justice, submits with smiling countenance to a pelting with epithets of scorn, is assuredly unworthy of any appreciable confidence. “Granted,” it may be answered; "but you have scarcely settled the question as to the expediency of allowing to persons charged with contempt the right of trial by jury.” It appears to me, however, that this talk about a jury is absolutely irrelevant. If a statute should be enacted providing for trial by jury, in cases of contempt, well and good. Not improbably the Legislature of New South Wales will be invited to adopt a measure having such effect. There is a growing disposition, both in England and the colonies, to substitute the embodiments of passing whims for the lex non scripta which has evolved from the experience of ages.
But as things go,
in reference to contempts, the judges have nothing else for it but to obey the common law; and the common law, the outcome in this instance of immemorial usage, directs plainly that the judges themselves shall decide as to contempts. Nor can any fault be discovered in the modus operandi. The process all through was eminently judicial, Platonic, slow. The libel was published on 21st August; the judgment of the Court was delivered on 24th September. Having noticed that a judge was overtly denounced as in all cases partial, and as leaning in such partiality to the side of injustice, the Court came to the conclusion that they would be ill discharging their duty as guardians of that personification of the public, the Crown, if they shrank from exercising the undoubted powers vested in them. Every opportunity was allowed the defendants to make a retractation. None worthy of consideration was forthcoming. Finally, after the lapse of more than a month, with due imperturbation and solemnity, the Court pronounced a judgment bearing in its every line indications of patient investigation, and of the subjugation of passion.
Yet whilst their Honours were deliberating on this question, a by-no-means inconsiderable section of the Press, shameful to relate, was filling the air with cacophonous vociferations about the liberty of the Press and the tyranny of judges. Now the Bench were charged with being under the influence of a truckling, and in all ways unmeet, esprit de corps; now they were taunted with the statement that they were so unversed in the law as to have got themselves into a hopeless dilemma. A more unseemiy and ludicrous display of fustian was never made; and this, be it remembered, whilst the matter at issue was sub judice—whilst a Press which had any solid respect for its position, which understood its functions and recognised its raison d'être, would have perceived the necessity for holding its peace. The authorities quoted in support of the hypothesis that a high judicial functionary might be held up to public scorn with impunity, were not a little curious. Much capital was made out of this fact, that John Milton had published “A speech for the Liberty of Unlicensed Printing.” Had these writers dipped into “ Areopagitica,” they would have found Milton telling the Parliament of England:-"I deny not, but that it is the greatest concernment in the church and commonwealth, to have a vigilant eye how books demean themselves, as well as men; and thereafter to confine, imprison, and do sharp justice on them as malefactors;" and for books which come forth, “if they be found mischievous and
libellous, the fire and the executioner will be the timeliest and the most effectual remedy that man's prevention can use.” That the Evening News' article was “mischievous and libellous” is admitted in Sydney by everybody outside of that journal's office; therefore, I fail to perceive in what way Milton helps those who declaim against the justices. A fine of £250 is infinitely preferable to the "sharp justice” of “fire and the executioner,” prescribed by this great authority. Then the remarks of several learned jurists on the liberty of the Press to comment on the public acts of public men were held up as striking contrasts to the views of the Supreme Court. But no opinion could be found in favour of allowing the Press to violently attack publicists, not with argument, but with invective. What English judges have said about the right of comment, the Chief Justice has fully endorsed. In his judgment
"Neither this nor any superior Court in the British dominions has ever, in modern times, tyrannously used its power of punishing for contempt, and no persons can recognise more freely than we do the propriety of using this power only when a clear case of necessity has arisen. Has such a case of necessity arisen now? We are all of opinion that it has. The right of the public to canvass fairly and honestly what takes place here cannot be disputed. Our practice of sitting here with open doors and transacting our judicial functions, as we do, always in the broad light of day, would be shorn of some of its value if public opinion respecting our proceedings were at all times to be rigidly suppressed. We claim no immunity from fair, even though it may be mistaken, criticism. But there is a limit beyond which criticism ceases to be fair, and mistakes become pernicious; and there are modes of comment which show a desire to vilify rather than an attempt to correct.”
So far, good. I think the reader will now have no difficulty in disapproving of the affirmation declared by the public meeting held at Sydney on 5th October, namely, that “the action taken by the Judges of the Supreme Court in the recent case of alleged contempt by the proprietors of the Evening News, is calculated to seriously endanger the liberties of the subject.” If the space at my disposal permitted, it would be easy to show that the speakers at that assemblage conceded the whole issue. The mover of the principal resolution admitted that the impeached article per se could not be defended. The seconder of the resolution pleaded that he was not present “to advocate
advocate the right or propriety of the articles which had appeared in the Evening News." The mover of a resolution which stated—“That this meeting, to mark its sympathy with the proprietors of the Evening News, hereby determines to reimburse the entire amount of the fine and costs, and that subscription lists be opened at once"-strange to VOL III.-No. 13.