472
77/(? Green Bag.
HISTORIC COLLISIONS BETWEEN BENCH AND BAR. GOOD feeling," says Mr. Oswald in his work on " Contempt of Court," "nearly always exists between the bench and bar, and when it is interrupted the reason for it may generally be found to ex ist on both sides. There is scarcely any in stance upon record in the superior courts of a conflict between the bench and bar becoming so acute as to lead to the com mittal of an advocate for contempt while conducting his client's cause. Even ChiefJustice Jeffreys (who is said to have brow beaten and sometimes threatened counsel) does not appear to have put in force the power of committal against counsel. And during the progress of the once celebrated Reg. r. Castro, or Tichbornc case (which in its hearing occupied the time of the court for a longer period than any other trial on record, except that of Warren Hastings), although there were frequent conflicts be tween the bench and the advocate for the ' Claimant,' and several reminders to him by the judges of the weapon with which the law armed them, the court never went to the length of depriving the client of the serv ices of his advocate. The natural disincli nation of the court to interfere with counsel in such a way as to take his services from his client ought to form a strong reason for counsel not assuming too great a license." This passage may be taken as a good, short exposition of the true position, and of a correct appreciation of what the proper re lations should be. It is difficult to find a clear case of a bar rister being punished for contempt while actually pleading for his client in court. Re Pater is, however, such a case (12 W. R. 823). Of two other cases cited by Mr. Os wald, where both persons committed were litigants, and apparently solicitors, Cams Wilson's case (7. Q. B. 984) may be, for
the present purposes, worth looking at; in the other (Reg. i-. Jordan, 36 W. R. 589) Mr. Justice Cave said that the observation, "That is a most unjust remark," however said, is a gross insult to any court of justice, and if not withdrawn amounts to a contempt. Re Pater does not help us much. Mr. Pater, a barrister practicing at the Middle sex Sessions in 1864, feeling himself ag grieved by certain interruptions on the part of the foreman of the jury, remarked in his speech for the defense, " I thank God there is more than one juryman to determine whether the prisoner stole the property, for, if there were only one, and that one the foreman, from what has transpired to-day, there is no doubt what the result would be." For this he was ultimately fined £20. On appeal to the Queen's Bench, Chief-Justice Cockburn said : " It appeared that Mr. Pater was fined for certain words uttered in his address to the jury, and I quite agree with Mr. Pater's counsel [Denman, Q. C., McMahon, and Kenealy] that the words in themselves are words which any counsel might have uttered in the honest discharge of his duty, and if they had been so uttered, though they might have been harsh and unpleasant to the party affected, that could not have been construed into contempt. But, on the other hand, if, though used in the course of his address to the jury, they were not used for the purpose of inducing the jury to come to a conclusion in favor of his client, but for the purpose of wantonly insulting one of the jurors, then I say they are an abuse of the privilege of counsel, and properly punishable as contempt of court." The court refused any relief. It will be noticed here that the contempt was not for words uttered to the bench, but the deputyassistant judge stated in his affidavit that, on his imposing the fine, Mr. Pater said :
