Page:Notes and Queries - Series 10 - Volume 11.djvu/154

122 differ is as to the reason for which the Prince was banished, the entry in the Roll seeming to justify the view of Sir J. Ramsay that it was for abusing the bishop because, as Treasurer, he declined to accommodate him.

Both Mr. Crofts and Mr. Flood make the mistake of stating that the insult was to a "judge" instead of to a "minister" (cuidam ministro), there being no evidence whatever as to the Prince having ever insulted a judge.

Wittingly or unwittingly, Mr. Flood distorts the facts of this case in such a manner as at once to raise the suspicion of his readers. For instance, in introducing the subject he says that "a Chief Justice had been grossly insulted in open Court by William de Breosa"; whereas the person insulted was Roger de Higham, a baron of the Exchequer, though sitting as a judge—not a Chief Justice at all. The mistake arose, I suppose, from Mr. Flood having confounded Roger de Higham with Ralph de Hengham, who had been Chief Justice some years before.

Then he says that the word used, ministro, is the same word as that applied to the judge, whereas the latter is specially described as justiciarius.

Next he tries to make a third point—hardly worth making at all, one would think—that the words contemptus et inoebedientia, used in the Rolls, are the same words used by Elyot, "contempt and inobedience"; but Elyot uses the English word "disobedience," while the Latin words are used by the Court in giving judgment on William de Breosa, not in the allusion to the offence of the Prince of Wales.

With regard to the statement that this story is alluded to in only two law books, properly so called, Mr. Crofts was not strictly correct, even at the time he wrote; for, besides being mentioned by Lord Coke and Crompton, it was mentioned from the Bench by Lord Selborne, as recently as 1874, in the case of Watt v. Ligertwood, 2 H. L. (Sc.) 361. Since then it has been referred to in Mr. Oswald's book on 'Contempt and Committal,' as also in the 'Encyclopædia of English Law.' Besides this, Mr. Crofts has, admittedly, not examined the Rolls, and does not state that he has examined the Year-Books from Henry IV. onwards; and until all the Rolls and Year-Books have been carefully perused, it is impossible for anybody to know whether there is any allusion or not to the committal of the Prince.

But what Mr. Flood, and apparently Mr. Crofts also, consider conclusive is the absence of all mention of the incident from the books at the time when it is alleged to have taken place.

Mr. Flood's point is that had the Prince committed contempt of court in facie he should and must have been indicted, and as there is no such indictment contained in the Coram Rege Rolls, it never took place, and therefore the contempt of court never occurred, therefore the whole story is untrue and absurd. Now the answer to this is very simple. Had the Prince been indicted, then certainly there would have been an entry in the Coram Rege Rolls, and probably in the Controlment Rolls as well; but the story is that the Prince was not indicted, but committed, the Chief Justice putting into force the power to commit summarily for contempt inherent in every court. Mr. Flood boldly states that Elyot was not aware of the practice in Henry IV.'s time, although for seventeen years of his life he held the appointment of Clerk of Assize, was born and bred to the law, and was a familiar with the law French of the courts of that time as Mr. Flood was unfamiliar with it. In support of his contention the latter quotes a number of cases of contempt of court, in all of which offenders were indicted, but none of those quoted are actually in point; while in noting the case of William de Breosa alluded to he makes the same error in describing Roger de Higham as Chief Justice! He makes much of the point that a Chief Justice was concerned in this matter of Edward II., whereas, as I have said, the point is founded upon a fact that exists in his imagination only.

And when he talks about the practice, one would be inclined to think that cases of princes of the blood insulting a judge were of comparatively frequent occurrence, and that exceptional cases need exceptional remedies does not seem to have occurred to him.

Here I may state that Mr. Vernon Harcourt, a gentleman known as an authority on black-letter law, has recently discovered a case in the Rolls where a serious contempt of court was committed, the parties in the case being no other than Sir John Fastolfe and Lord Cobham, the grandfather-in-law of Sir John Oldcastle; but here, as he has shown, the contempt of court has to be inferred by reading between the lines—it is not stated in so many words, any more than it would have been so stated in the case of the Prince.