CO129-123 - Sir MacDonnell - 1867 [7] — Page 408

9. That the statements contained in the said Judgment that the Chief Justice was "driven "to adjourn the case so far indefinitely" and that the Chief Justice said he "could not hear it, I being Counsel, till I should have apologised" are utterly and entirely false and that the true account of this portion of the matter is set forth accurately in the twelfth paragraph of my Petition.

10. I utterly deny and flatly contradict all that part of the said Judgment which relates to what is therein called my "sixth contempt," and also the statement that "I sat down and continued "to address" the Judge.

11. I studiously, on Saturday, the 29th day of June, preserved a deferential and respectful deineanour as I was anxious to avoid a continuance or repetition of the unseemly scene in Court which happened on the previous Thursday.

12. The manner and conduct of the Chief Justice, and his treatment of me on Tuesday, the Second day of July, was most insulting, and calculated to humiliate and degrade not only myself, but the profession, in the eyes and opinions of this community, and, I sincerely believe, was and is without parallel in the Courts of any civilized country.

Sworn at Victoria, Hongkong, this

sixteenth

day of July, A.D. 1867.

Before me

Edward. Holland

Man

Fifor Hongkong

This is the Exhibit B'referred to in the annused affidavit of S. st. Follard sworn before

this day.

Booking Ch "July 1867

Maye

403

Mr. POLLARD,After several delays, it now becomes my painful duty to deliver the decision of

this Court on your conduct on Thursday, the 27th of June last. These delays have been interposed in order to give you time to reflect calmly on your conduct, and, by submission and apology, to render the exercise of the indisputable authority of this Court to punish for contempts towards it, unnecessary. In expressing what appears to be my duty on the present occasion, I shall in substance adopt the language of the Chief Justice LORD TENTERDEN, of Mr. Justice BAILEY, of Mr. Justice HOLROYD, of the Chief Justice LORD WINFORD in 1821, preferring to use language frequently since repeated, always with approbation, to any less forcible words of my own selection. Their language is in the case of an insult to himself, it is not on his own account that he commits or imposes a fine, for that is a consideration which should never enter bis mind. But, though he may despise the insult, it is a duty which he owes to the station to which he belongs, not to suffer those things to pass which will make him despicable in the eyes of others. No man, who pretends to any knowledge of the law, can doubt that a Judge of a Court of record has authority to fine or imprison for any contempt committed in the face of the Court. From the earliest period of our history, this authority has been exercised. Every man who comes into a Court of Justice, either as a party or Barrister, must know that decency is to be observed there, that respect is to be paid to the Judge. Of the power of a Judge to fine for contempt I have not the least doubt. When a case is conducted by Counsel they know perfectly well what the rules of law are, and they have that regard for their own character which generally prevents them from doing anything which may break in upon the rules of decency and decorum. Chief Justice ABBOTT says:-" If I thought that the decision I am about to pronounce, could have the effect of "restraining any Barrister from exercising a hold as well as a legitimate course of advocacy, I would 'pause, even longer than I have done, before I pronounced that decision. The question, indeed, is a 'momentous one, It is absolutely a question whether the law of the land shall or shall not continue to be properly administered. For it is utterly impossible that the law can be so administered, if those "who are charged with the duty of administering it have not power to prevent instances of indecorum "from occurring in their presence. That power has been vested in the Judges, not for their personal "protection, but for that of the public. And a Judge will depart from his bounden duty, if he forbears "to use it when occasions arise which call for its exercise.” I have now quoted enough to show that this Court has the power of punishment, by fine or imprisonment, and in the case of a Barrister, as the learned Queen's Counsel has drawn a distinction between an Attorney and a Barrister, I would refer him to these cases. Of the power of a Judge to fine for a contempt of Court, I have not the least doubt. The duty to punish contempts of Court and the right of the Court to fine and imprison the of- fender, and, on the rare case of hijs being a Barrister, to suspend him from practice, being proved by abundant cases, it is my duty merely to decide that you were guilty of a contempt of this Court on Thursday, the 27th of June last. It is thought to be a rare case to suspend a Barrister from practice, but as I have said, there are many such cases. I can refer you to a case in which then and there for contempt of Court, a Burrister had his gown by order of the Court pulled off his back. It is more satisfactory, however, that I should go into a detail, as well as I can, and so far as I deem necessary, the circumstances as they occurred. In the case, then, of OLVIHANT and Others v. Loo-A-HING, you opened the case for the Plaintiffs as a breach of warranty to ship Sugar to Shanghai of a specified quality. Your first Chinese witness, the Comprador of the Plaintiffs, proved the signature by the Defendant to a contract in English, and that he had translated the document to the Defendant. In the course of that examination you persistently, though more than once stopped by me, put leading questions to the Comprador. And I felt that under his master's eye, that master sitting close to you, and with your peremptory leading questions, one sort of answers only could be expected from linu. I at length again objected to your persisting in putting such leading questions, saying to you, "Why he is your own wit- ness." Your answer to me was interentially insisting that you had been right, "The Interpreter is not." This answer offended propriety. It inferred an imputation on the Interpreter, who has been a zealous and honest Interpreter for some Seven years, and it ignored the rule being, as it always has been, imperative as to a Chinese as well as to an English witness. Your answer was pointed and curt, and was apparently made to raise, and only to raise, a laugh against me. This was your first contempt of Court, on which I said nothing then. The case proceeded. Mr. WHYTE asked the Comprador of your clients in cross- examination questions to show that he had examined the Sugar as they were packed by direction of the

of