CO129-123 - Sir MacDonnell - 1867 [7] — Page 446

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Plaintiffs so as to show an approval by the Plaintiffs of the Sugars before they were shipped. So far as it went, the evidence of Plaintiffs' Comprador tended to sustain the defence. You with unnecessary vehemence insisted to me that this evidence could not be received. I decided to receive it, and your demeanour was, to say the least, offensive and disrespectful in consequence. It appeared to be a point with the Defendant to show that the Plaintiffs by their servants had approved of each package of Sugar before it was shipped, and it was extracted from your clients' Comprador that when the Comprador was absent, a trusted coolie of the Plaintiffs was present. Mr. WHYTE, for Defendant, asked where that coolie was. Thereupon I said to you that, as he was a servant of the Plaintiffs, you should produce him in Court. Thereupon you turned to me, and looking me steadfastly in the face, you said with a scornful expression of countenance, our eyes meeting, and in a discourteous and defiant manner, "He is not a piece of paper to be produced in Court. Let the Defendant subpoena him in the usual way." On that, I, considering that the Defendant was a Chinaman, said to this effect, "Do you mean, Mr. POLLARD, to put them to the expense and difficulty of finding and subpoenaing your own servant?" Upon this, you with vehemence of tone and manner said to me, "I will put only those witnesses into the box which I, as Counsel for the Plaintiffs, think fit. I will not be dictated to or talked down by anyone as to what I am to do."

I was taken aback, and said I was not dictating to you or talking you down; you will do your duty, and I will do mine. I meant, as you must have known, indeed, I believe I added that you would call or not call witnesses according to your duty, and that I, in directing the jury, would do mine in directing them to make the proper inferences from your keeping back such a witness. What you said, added to your tone and manner, inferred that I had improperly dictated to you and that I had improperly attempted to talk you down. This was your second contempt of Court. Now, there at least should have been an end, but acting on your all but universal rule, you would and did reply to me, and you said, "That is all right if we would only stick to it," in a tone and with a manner which inferred and must have been meant to infer that I would not. Now, this was your third contempt of Court. By this time, your manner towards me appeared to me to be violent, and your general bearing was such that I felt the cause could not then proceed with any chance of justice. I felt that the Court had been grievously insulted. I felt it to be my duty then and there either to have committed or to have imposed a fine on you, but at the same time, I feared that anger might be present in my mind, and I left the Bench as the least evil before me, and to avoid what, from experience, I had too much reason to expect—a continuance of insult.

After an absence which I now wish had been longer, I returned to the Bench. On my return, your manner was contemptuous towards me. Not noticing that, I asked whether you would apologise. Your curt notice of this was, "For what, my Lord?" You then went into wide generalities that if you had offended, no one was more willing to admit it and apologise. You then referred to my having asked you if you would produce a witness, on which I said that you had tauntingly told the Court a witness was not a piece of paper, as if I did not know a witness was not a piece of paper. Thereupon you said, admitting inferentially that you had said so, but still in a defiant manner, "Is it that you wish me to apologise for?" I said that there were other matters requiring apology, and you proceeded to address me in a manner and tone as offensive as before, from which I felt satisfied that your only object was to get me into a most unseemly wrangle. Not choosing to trust myself then to punish the contempt as I felt was necessary, and feeling that, until you had apologised, or at least in the then state of excitement and indecorum into which the proceedings had been thrown, the cause could not properly be proceeded with, I adjourned the Court as the least objectionable course.

You then, still persevering in your defiant tone, protested against the adjournment as being entirely without precedent. I said I should adjourn the Court till Saturday (the Friday being a holiday), adding "as we cannot get on in the present circumstances," and you still, as if you had not caused what happened, desired me to take a note of your objection. You then said, "If I have done any wrong, there are certain steps which may be taken by the Court," and you requested me to take a note of your objection. By this language, you adopted deliberately all you had previously said, and, so far from apologising, courted the consequences on yourself personally of your contempts. I replied there were such steps, but that I would not then take them. You proceeded, and I had peremptorily to say, "Silence, sir." I said you would not dare to use elsewhere such language as you had used. I added, "The Court is adjourned." Still, you persisted in renewing your unseemly language to the Court, addressing me after I had requested you to be silent and after I had adjourned the Court. One of your observations was, "I always answer when I am attacked, and not without." Your speaking at all was an indecorum; what you said was a contempt in imputing to the Court that it had attacked you, which was the converse of what had occurred. I consider this your fourth contempt.

I was thus, by what you said after the Court was adjourned, driven to adjourn the case so far indefinitely, and I said I could not hear it, you being Counsel, till you should have apologised. I am glad to find that the cause out of which the above occurrences arose has been referred to arbitration, because I feel sure that the arbitrators will decide according to the very right of the case, which unfortunately this Court, being tied by technical rules applicable to another state of society, can scarcely do.

On Saturday, another case came on, in which you again appeared as Counsel. I, having previously directed the Acting Registrar to communicate with you my intention to give a decision unless you previously apologised, asked if any gentleman had anything to say in reference to Thursday. You were present, looking very indignantly at me, but said nothing. I then shortly referred to and cited the leading cases, showing that ex necessitate I was bound to punish an insult to the Court, and advised consideration of those cases to persons interested in the matter. My intention was obviously to give you another opportunity, after referring to the law, to apologise. I said I would give my decision on Monday, and that you had due notice. You, taking the matter as one of dry notice, said, "I have received no notice." It seemed that the Acting Registrar had told you I should give my decision, but he omitted to say on Monday, as I had intended he should. The spirit in which the objection that you had not received notice was made satisfied me that you did not understand what had passed in its true bearings.

Having obtained leave to address me, you began thus, "Merely this, my Lord, I don't seek to be aggressive." This language, under the circumstances of your being before me as charged with contempt, was a contempt, and I designate it your fifth contempt. You proceeded, "It is the Bench I respect." This was said in a tone which clearly inferred and was meant to infer that it was the Bench as distinguished from its occupant that you, a Queen's Counsel, had such respect for as you professed to have. This was a contempt, according to the highest authority, of a very grave character. This was your sixth contempt. You then proceeded to say that you had done nothing which could be properly called an insult. You then sat down and continued to address me, sitting, and I had to request you to stand whilst you addressed the Court. You then said that was all you had to say.

I give you credit for having uniformly insisted, as you did in your defence, that you have said and done nothing which can properly be called an insult to the Court. I have no desire to conceal the fact that the difficulty you have imposed on me has very deeply pained me ever since Thursday last, and that it will continue greatly to pain me, probably more than it will pain you, not because I am anxious as to my own personal position other than as it is important to sustain the judicial status in this Colony, but because I respect your legal learning, and because our own forensic contests have left on my mind pleasant remembrances of kindly feelings towards you, which even present circumstances cannot change, and because you have many qualities which deservedly make you popular.

If, in duty to my Office, I could have overlooked your conduct, I would have done so, but to mark my sense of your conduct is, in the words of Mr. Justice HOLROYD, "a duty which I owe to the station to which I belong." You say you have never insulted the Court. Whether you are justified in distinguishing the Court and its successive occupants in that language, I leave for you to consider at leisure; you have insulted me, and in insulting me, you have insulted the Court. I may add that the more humble is the occupant of the Bench for the time, the less learned and competent he may be for his Office, the more important is it to surround him with those forms of respect which have been devised to support authority against those who would usurp, subvert, or destroy it.

I now proceed to pronounce my decision as ex necessitate rei, the only judge of fact and law. I pronounce you guilty of grave contempts, and, as from equal necessity, this is the only tribunal that can award the punishment, I now fine you in the sum of $200, and, further, I suspend you from practising before this Court as a Barrister and Advocate for a period of fourteen days, or until the fine shall be sooner paid. I have purposely fixed the fine and penalty at the lowest point possible compatible with its being an expression of my opinion of your conduct. Some persons may think that you have only shown the just independence of the Bar in your habitual demeanour and language towards the Bench. I, however, think I have seen in it impediments to a Judge in the due administration of justice; sometimes, indeed, as I am inclined to think, to the undue advantage of clients.

The penalty I impose is indeed small, but the effect of the decision is more serious. I trust you will bring this matter before the highest tribunal, the Privy Council. This is sometimes done. As late as in November last, the Lords of the Judicial Committee gave leave ex parte to appeal to the Privy Council to the publisher of a journal in British Guiana against a sentence of imprisonment for six months for a contempt of Court in having published articles reflecting on the administration of Justice and on one of the Judges of the Supreme Court there. I refer to this precedent in the hope that you, a Queen's Counsel here, will ask leave and will be allowed to appeal in order that such questions as you may think fit may be raised, and so that the judgment I now pronounce most reluctantly may be reviewed. To any motion for leave to appeal that you may make before the Privy Council, my consent to your obtaining leave to appeal shall be given. If you would prefer another course, some measure may be devised by which the opinion and decision of the Benchers of the Inn of Court of which you are a member may be taken.

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