Page:The Green Bag (1889–1914), Volume 20.pdf/148

 EDITORIAL DEPARTMENT became common and process sealed with it was issued as of course, disobedience to the seal inevitably and insensibly took on a less serious form. A King's seal, which is at the service of a private party in a suit, ceases to be a dread symbol of sovereign power and becomes merely part of the machinery of a court administrating justice between party and party. So the process of contempt for the disobedience of an order in chancery ceased to have any higher significance than that of a step in civil process. Disobedience to process was still punishable as contempt of the King, but it was in fact a mere method of executing a decree of the court in favor of a successful party to a suit. The inevitable recognition and giving legal effect to this fact did not come until well on to the nineteenth century. A member of Parliament had been attached for contempt in clandestinely remov ing a ward of court from the custody of a person to whom she had been committed by the chancellor. He set up his privilege as a member of Parliament. Lord Brougham, then Lord chancellor, drew the distinction between the breach of an order of a personal description and actual interruption of the business of a court. Breach of a mere per sonal order was a civil contempt, to which it was admitted the privilege of Parliament was a protection. But a commitment for inter ruption of the court's business, as is the case at Bar, was criminal in the nature and the privilge no answer to it. This distinction is now well settled in England with all the resultant differences .as to privilege from arrest, the form of appeal and the pardoning power of the sovereign. In this country the distinction has usually been accepted in the same form and with the same results. In the Debs case the Supreme Court recognized the established distinction, Justice Brewer saying: "A court enforcing obedience to its orders by proceedings for contempt is not executing the criminal laws of th€ land, but only securing the suitors the rights which it had adjudged them entitled to. This difference in nature appears in the method c f dealing with the contempt. Active contempt of the court, like similar contempt of the king, is a crime, and indeed may be indicted and punished as a misdemeanor. It

is usually dealt with summarily by the court which causes the immediate arrest of the offender, and sentences him to a fine or imprisonment as a punishment for his wrong doing. But where its injunction or other order or decree is violated by the person addressed, the violation is called to the atten tion of the court by the injured party, and the wrongdoer is submitted to prison to remain until he purges himself of his contempt by. doing the right or undoing the wrong. This is obviously not punitive but coercive, and anything in the nature of a sentence to a definite punishment, like a fine or imprison ment for a term, was entirely foreign to the process. But sometimes a person violated a decree in such a way that he could not restore the stains quo ante, and if the other party were obdurate he might remain in prison for the rest of 'his life, through his inability to purge himself of contempt. Probably for this rea son in recent times a sort of punishment by limited term of imprisonment or even by fine, payable to the injured party, has been substi tuted for the old coercive imprisonment. These distinctions lead to the following conclusions by Professor Beale on the now vexed question of punishment for contempt, and the demand that no one be punished for it except after a trial by jury and verdict of guilty. He believes the necessity for a sum mary and exemplary punishment is far greater in the case of a direct contempt in the face of the court than in the case of a contempt out side court, and if contempt is to be punished instanter it must be done in most cases by the judge himself, who is the subject of contempt and simply on the evidence of his own senses. There seems no other course than such immedi ate punishment. The danger of harshness on the part of the judge is a less evil than the danger of a complete suppression of the functions of justice by permitting an up oar to continue unchecked. When the contempt does not occur in the ' face of the court a more regular procedure is required. An attachment issues on affidavits, the offender is brought before the court, and has an opportunity to disprove the charges. Summary punishment is less necessary and a delay of a day or two will not necessarily prejudice the court. It will ordinarily be