mitted until further consideration of the matter. A few days afterwards the Doctor was brought into court and fined £50 and bound to his good behaviour for a year. It will be noticed that the sentence was based on the respondent's confession; whether it was regular to grant an attachment in such a case is a point to be considered later.

In 1722 an attachment was granted against John Bolton, clerk, for contemptuous words respecting the warrants of the Chief Justice of the King's Bench spoken at a meeting of his parishioners in the churchyard, and in 1721 one Barber was attached for contemptuous words of the same Court in a speech to the Common Council of London 1.

In 1720 one Wilkins, having confessed himself guilty of publishing a libel upon the King's Bench, was committed, fined, and ordered to give security for his good behaviour 2; and, apart from slanders on the Court upon service of process, which stand on another footing, this appears to be the earliest recorded case in which the Court punished by summary process a libel or slander on itself, uttered by a stranger 3. In an Appendix to the Report of the Select Committee in Burdett's case, to which we have already referred 1, is a collection of precedents of commitments for contempt by courts of justice, and the industry of the Committee was able to discover only one case of libel on the Court unconnected with the service of process in which a summary procedure was supposed to have been applied, before Wilkins' case in 1720, and that is the case of John de Northampton, an attorney of the King's Bench, in 18 Edward III, to which further reference will be made. The gap is remarkable.

Hawkins, in his Pleas of the Crown, in specifying the incidents of courts of criminal jurisdiction, lays it down that such courts, being also courts of record, may fine for contempts in the face of the court, and 'it is said' that they (the court-leet excepted) may also imprison for such contempts; but he says nothing here of a power to fine or imprison for contempts done out of court 5. Under the heading 'Attachment' he tells us that if a contempt be

These two cases are noted in Appendix E to the Report of the Select Committee in Burdett's case (1810) 8 How. St. Tr. 14, referred to at p. 184, supra. Barber's case is reported in 1 Stra. 444. It seems clear that slanders on the Court unconnected with the service of process, of which these two cases are examples, are on the same footing as libels with regard to the mode of procedure to punish them. 2 Report of Select Committee, App. E, referred to in the last note. (see note 4, p. 190) was alleged to be the author of the libel in this case.

Dr. Colbatch

3 Disrespectful language of the Court on the service of its process may be distinguished from slander or libel on the Court unconnected with such service, in that the former is a direct impediment to the course of justice, whereas the latter can only operate indirectly and in some cases (e.g. where the proceeding to which it relates is concluded, as in Reg. v. Gray [1900] 2 Q. B. 36) can only affect the general administration of justice apart from any particular proceeding.

4

See Part II, infra.

5

2 Hawk. P. C., ch. 1, s. 15.

done by a person not present in court, a rule to attend and answer or a rule nisi for attachment will be made; or if the offence be of a very exorbitant nature, as for words of contempt of the Court itself, an attachment will be granted without any rule to show cause. The only references in the first edition of the work (1716-1721) were to cases of disrespectful words on the service of process. Some of the later editions refer to the case of Rex v. Wiatt (1723), mentioned above. In dealing with attachments for 'contemptuous words or writings concerning the Court,' Hawkins says: It seems needless to put any instances of this kind which are generally so obvious to common understanding, and therefore I shall only observe that sometimes attachments have been granted for contemptuous words concerning the rules of the court without making any rule to show cause why such attachments should not be granted, because it would be vain to serve him with a second rule who has despised the first.' In the first edition the only reference is to a case of disrespectful words on the service of process; in some of the later editions the case of Rex v. Barber (1721), mentioned above, is referred to. So that, with the exception of cases decided in 1721 and 1723, Hawkins quotes no authority for the jurisdiction to punish strangers for libels on the Court by attachment.

Blackstone includes under contempts punishable by attachment 'speaking or writing contemptuously of the Court or Judges acting in their judicial capacity,' but he cites no authorities.

Where Hawkins, Wilmot, and Blackstone have failed to cite authority, we may reasonably conclude that none is to be found. It will be observed that Wilmot J. does not refer to the reported. cases of 1721, 1723, and 1731, which seems to show that the value he placed upon them as authorities was inconsiderable.

Chief Justice Gilbert, in his History of the Court of Common Pleas3, suggests that commitment for contempt was derived from the Statute of Westminster II (13 Edward I), c. 39, which provides that if the sheriff's bailiffs testify that they cannot execute the King's precept because of the resistance of some great man, the sheriff is to go in person to do execution; and if he find his bailiffs false he shall punish them by imprisonment, and if he find them true he shall punish the resisters by imprisonment, from whence they shall not be delivered without the King's special commandment; and the sheriff is to certify to the Court the names of the resisters, and by a writ judicial they shall be attached by their 2 Commentaries, iv. 285.

1

2 Hawk. P. C., ch. 22, s. 36.

3 1st ed. (1737), p. 20.

bodies to appear at the King's Court, and if they be convict of such resistance they shall be punished at the King's pleasure; and the King reserves the assigning of the punishment specially to himself. Wilmot J.1 considers that attachments did not take their rise from this statute, which he says only empowers the sheriff to imprison persons resisting process and has nothing to do with. giving courts of justice power to vindicate their own dignity, and Blackstone takes the same view 2. The statute, however, is instructive on the subject of attachment. The sheriff is to arrest and imprison the offender, who is to be brought before the King's Court by a writ of attachment, and if he be 'convict' he is to be punished. The word 'convict,' it would seem, is equivalent to 'convicted in the ordinary course of law,' for there is no suggestion of any other form of conviction where the word 'convict' or 'attainted' is used in the statutes of the period 3.

Blackstone refers to attachment as the method immemorially used by the superior courts of justice of punishing contempts, and states that the process must necessarily be as ancient as the laws themselves. To prove the antiquity of 'attachment in general' he refers to two authorities only. The first is Year Book 20 Henry VI. 37, where an attorney was taken under an attachment

1 Rex v. Almon, 253.

2 Commentaries, iv. 286. 3 Cf. Stat. West. II (13 Edw. I), cc. 11, 12, 34, 36, 37, 38, 44. Attainted' is used as synonymous with convicted, as in c. 34, the former being the equivalent for 'atteint when the statute is in French and the latter for convictus' when the statute is in Latin. Atteint' is used in the Stat. West. I (3 Edw. I), c. 29 (still in force), providing for the punishment of any serjeant pleader or other who shall do any manner of deceit or collusion in the King's Court, and thereof be attainted.' (See the cases under this statute cited by Coke, 2 Inst. 215-7.) The same word 'atteint' is used in 25 Edw. III, stat. 5, c. 2, upon which Coke (3 Inst. 12) remarks: This word (attaint) necessarily implieth that he be proceeded with and attainted according to the due course and proceedings of law, and not by absolute power or by other means as in former times had been used.' Coke does not explain the last clause of this sentence, which it is submitted must refer to an illegal exercise of power and not to a mode of procedure sanctioned by the common law. See also 2 Inst. 37 and 1 Inst. s. 745. For other instances of the use of the word 'attaint' see Stat. West. I (3 Edw. I), cc. 1, 9, 15, 20, 24, 31, 32, 37, and cf. the expression 'indicted, arraigned, tried and attainted' in the Act 39 & 40 Geo. III, c. 93.

Lambard in his Archeion, written in 1591 (pp. 171-2), referring to certain offences punishable in the Star Chamber by statute, thus indicates the only forms of trial at law: And thus by the benefit of these two statutes the judicial handling of these eight offences which before did proceed as I partly touched either by way of indictment or action, may now be performed without any inquest or verdict, even by the only (i. e. 'mere') examination either of competent witnesses, of the parties themselves, or of both; a course which was never before permitted by the common law of the realm wherein no trial was allowed, but that only per legale judicium parium, as the great Charter itself plainly doth acknowledge.'

Cf. the statute 52 Hen. III, c. 3, providing punishment by fine for those who obstruct the execution of attachments, &c., and see the cases in 21 Edw. I and 3 Edw. II, referred to at p. 197, infra.

* Commentaries, iv. 283, 286. The fourth volume of the Commentaries was published in 1769, four years after Rex v. Almon. The author had submitted the proofs of part of the work to Mr. Justice Wilmot (Wilmot's Memoirs, 201).

5 Commentaries, iv. 288.

to answer for issuing a capias of which there was no original. Upon examination he confessed the offence, and was sent to the Fleet; afterwards he came to the Court, and was put to his fine and received judgment that he be struck off the roll;-an instance apparently of the exercise by the Court of a statutory jurisdiction over its own officer1. The other case is in Year Book 22 Edward IV. 29, where, upon a prohibition, an attachment issued to enforce obedience to a writ requiring the Ordinary of St. Albans to assoilize a party who was excommunicate. Here the process was applied to enforce obedience to the King's writ in a civil action.

The earliest statute in which the full form of procedure by attachment, examination on oath, committal, and fine is prescribed in the case of contempt is 43 Elizabeth, c. 6, s. 1 of which provides for the punishment in this manner of a sheriff who makes a warrant without the authority of a writ, and all procurers thereof. This Act seems to provide a summary process for a case which previously would have been the subject of an action by writ of deceit under the Statute of Westminster I (3 Edward I), c. 292. The origin of attachment is traced in the judgment of Fletcher J. in Taaffe v. Downes 3. The action was brought against the Chief Justice of the King's Bench in Ireland for assault and false imprisonment. The defendant pleaded that the plaintiff was arrested under a warrant issued by the defendant as Chief Justice, and it was contended on the defendant's behalf that no action lay against him for an act done in his office of judge. The plaintiff demurred on the ground that the defendant's plea showed no cause for the arrest. The demurrer was overruled by the majority of the Court, Fletcher J. dissenting, and in his judgment the latter draws a distinction between the judicial and the ministerial acts of a judge. On the subject of attachment he says that the judges of the Aula Regis issued their process for bringing any person before them who should be found to have broken the King's peace or who should appear disposed to break it. What was the process? It was a prerogative writ of the King to preserve the peace and enforce obedience to all orders of that high tribunal-the process of attachment, introduced and borrowed from the Norman laws and this.

4

The statute 4 Hen. IV, c. 18 enables the justices at their discretion to put an attorney out of the roll for misconduct, after examination. See also Stat. West. I, c. 29, which provides for the punishment by imprisonment and fine (see 2 Inst. 168, 216) of deceit or collusion in the King's Court if the person charged 'thereof be attainted' (see note 3, p. 193, supra). The proceeding under this statute was by action of deceit (4 Inst. 102; Alleby v. Colby (1625) Cro. Jac. 694), and although this statute might have applied, the present case seems rather to have been under 4 Hen. IV, c. 18. 3 Referred to at p. 187, supra.

2 See last note.

Hatchell's Report, p. 118 (see note 4, p. 186, supra).

was the process of the Aula Regis. Why was it resorted to by them? Because disobedience of their orders was a contempt of the King himself whose ministers they were. Their authority being in fact a delegation of that of the King, extended to all parts of the realm; and they issued their process against all persons who broke the peace or were likely to break it. By the Norman law it was established that nothing could be done but by the King's writ. This practice was introduced into the English law, and if the person to whom such writ was directed neglected to obey it, the neglect was termed a contempt of the King's authority and an attachment issued to punish the person guilty of it. And here was the true origin of attachments. It was a prerogative process derived from a presumed contempt of the King's authority. ... As a proof that I have truly traced the origin of attachment I shall cite the words of the ancient writ "De homine replegiando" from the Registrum Brevium : "Nisi captus est per speciale preceptum nostrum vel capitalis justiciarii nostri, &c., quare secundum consuetudinem Angliae non sit replegiabilis," evidently alluding to cases of persons attached by the King or the Chief Justiciary before the division of the Courts, for contempts, who were not replevisable or bailable: a power possessed by the Chief Justiciary as the representative of majesty in the Aula regia and afterwards on the division of the courts distributed and bestowed by Statute W.I., ch. 5 (sic),upon the justices of the several newly-constituted courts, as is stated by Fitzherbert, N. B. 152 (2 Hale's ed.), in the passage cited by Gilbert and commented upon by Wilmot1; and accordingly persons so committed by any of those parties for a contempt are not at this day bailable by any other authority, being, as it were, committed in execution and punishment of the contempt. Such was the case of persons declared by the writ not to be replevisable-persons committed by the special command of the King or the Chief Justiciary presiding in the Aula regia by attachment, which was the process of that court, where its origin may be traced and is to be found 2. Had this account been presented to Wilmot J. there is no reason to suppose that he would have declined to accept it as correct, though differing from Fletcher J. as to the issuing of a warrant being a judicial act. But the question remains, as pointed out by Bosanquet J. in Miller v. Knox 3: What are those particular cases in which the punishment by attachment for contempt has been sanctioned by immemorial usage?' and this may be supplemented by the further question: What was the nature of the procedure

1 Rex v. Almon, 253.

2 Cf. Pollock & Maitland, Hist. Eng. Law, ii. 583; and see references to contempt of the King's writs and orders in the Leges Henrici Primi, x. I; xiii. I.