Lords Sitting of 8 March 1883

MINUTES.
PUBLIC BILLS—First Reading—Contempts of Court (15); Medical Act Amendment * (16).
Second Reading—Local Government (Ireland) Provisional Order (Limerick Waterworks) * (3).
Second Reading—Committee negatived—Consolidated Fund, &c. (Permanent Charges Redemption) Act (1873) Amendment * (13).

METROPOLITAN DISTRICT RAILWAY- VENTILATORS ON THE THAMES EMBANKMENT.—NOTICE.
THE EARL OF MILLTOWNgave Notice that, on Monday next, he would call attention to the ventilators now being erected by the Metropolitan District Railway Company on the Victoria

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Embankment and in Westminster; and move—
"That the evidence taken in 1879 by the Select Committee on the Metropolitan and Metropolitan District Railways (City Lines Extension) Bill, and in 1881 by the Select Committee on the Metropolitan District Railway Bill, and also the report of the proceedings of those Committees, so far as they respectively relate to the subject of ventilators, be printed and circulated."

NAVY—DOCK ACCOMMODATION AT MALTA.—QUESTION.
VISCOUNT SIDMOUTHasked the First Lord of the Admiralty, Whether the site of the proposed first-class dock at Malta has been decided on; and whether he will lay on the Table the reports of the engineers and other public officers on this subject?
THE EARL OF NORTHBROOK, in reply, said, that the Director of Works at the Admiralty was sent some time ago to Malta, to report upon the site of a new dock which was to be constructed there. He had returned to this country, but had not yet sent in his Report; and he (the Earl of Northbrook) could give no assurance that the Report would be laid before Parliament. As to the other Question, as the Report referred to had not been received, it would be premature to give any information as to the plan which would be carried out.

CONTEMPTS OF COURT BILL.

  BILL PRESENTED. FIRST READING.
  THE LORD CHANCELLORsaid, that before stating to their Lordships the reasons which had induced the Government to think it their duty to lay a measure on the Table of the House to amend the law with respect to Contempts of Court, it would be right for him to make some preliminary observations as to the present state of the law on that subject. Speaking first of the Courts of Civil and Criminal Jurisdiction in England and Ireland—for this Bill was not to extend to Scotland, though, if it passed, it might be proper to pass for Scotland a measure founded on the same principle—he might divide contempts generally into two distinct classes. The first class were contempts of the Court itself, not consisting in disobedience to its orders, and these might be committed either by persons who were entirely
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  strangers to any proceedings pending, or by persons who were parties to those proceedings. The other class of contempts consisted of disobedience to the orders of a Court, and was necessarily confined to the parties to proceedings before the Court. The first class of contempts, not consisting of disobedience to orders of the Court, might be sub-divided into two kinds—first, those taking place in the face of the Court, as by some insult offered by some person present to the presiding Judge, or by some interruption of the proceedings making interference necessary; and, secondly, into contempts not committed in the face of the Court, but outside, by proceedings calculated to obstruct or interfere with, or improperly prejudice, the administration of justice in proceedings pending before the Court. Proceedings taken by Courts to vindicate themselves against both these descriptions of contempt were strictly and necessarily penal, though they had also for their object the deterring others from committing the like offences. There was, however, a distinction between these two kinds of contempt which might be committed either by parties or strangers toproceedings—namely, that all Courts of Record, Inferior as well as Superior, had power, by reasonable fine and reasonable imprisonment'—and in the case of Inferior Courts, doubtless, subject to revision—to punish contempts committed in face of the Court; but Inferior Courts had no power to punish contempts committed elsewhere. The Superior Courts, on the other hand, had power to punish contempts of that class committed elsewhere, as well as those committed in face of the Court. The punishment for those contempts of both kinds was by fine or imprisonment, or both. The law did not fix any limit to the power of the Courts in the infliction of these punishments. As he had already stated, the power of punishment by Inferior Courts was subject to supervision; but Superior Courts were not subject to any similar superintendence. Although, doubtless, the Judicature Acts had made all orders of the High Court subject to appeal, yet it had never been the practice to appeal against orders of that description. He had now shortly stated the law as to contempts of Courts of Criminal and Civil Jurisdiction. Before speaking of Ecclesiastical Courts, he would revert to the class of contempts

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  committed by persons against whom orders had been made, and who had disobeyed those orders. The object of punishing contempts of that class was partly penal and partly to compel obedience to the orders of the Court. As cases of this class could not arise in Courts purely Criminal, but only in Courts of Civil Jurisdiction, the power of punishment in those cases was by imprisonment only, and not by fine. With respect to the Ecclesiastical Courts, they had no direct power to punish any contempts whatever; but contempts of both the principal classes he had indicated, both those committed in face of the Court, which disturbed the proceedings of the Court, and those which consisted in disobedience to orders made, were dealt with by statute. The first of the Statutes now in force upon that subject was passed in the 53rd year of George III. It was therein provided that when an Ecclesiastical Court declared a party to be contumacious or in contempt, the fact should be certified to the Queen in Chancery, and then there issued out of Chancery a Writ called de contumace capiendo, under which the contumacious or contemptuous party was committed to prison; a form of order being prescribed by the Statute under which he was to remain in prison until he submitted to the Court, or something to that effect. The Statute contained no provisions either as to any fixed term of imprisonment, or as to any means of putting an end to it if the party did not submit himself to the authority of the Court. Their Lordships were well aware that a case had recently arisen which directed attention to that subject. The offender was a clergyman who would not obey the orders of an Ecclesiastical Court, and was committed to prison. There he remained for a considerable time. The duration of that imprisonment, coupled with a general feeling that imprisonment was not the best or most proper way to compel obedience to orders of that sort, had led to the formation of the opinion, shared by persons of very different views, that it was not desirable that the law should be left in the state in which that case proved it to be. In point of fact, as the House was probably aware, there was some difficulty in getting that gentleman out of prison, even when he had suffered the final and
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  more efficacious punishment of deprivation of his benefice by virtue of the Statute Law. Great difficulties were felt as to how he could be got out of prison unless the persons who had promoted the suit were willing to come forward and ask for his release, or unless he himself submitted to the authority of the Court. Neither event occurred, and it was only by the intervention of the Bishop of the diocese that the Judge was able to come to the conclusion that the contempt was purged, and thereupon to direct the prisoner's release. Otherwise, there was no knowing how much longer he might have continued in prison. That was a state of things that had been felt to be highly unsatisfactory. The Government had been unwilling to separate the consideration of the case of ecclesiastical contempts from the consideration of the subject of contempt of Court generally. To deprive Courts of the power of punishing contempts would be impossible Judges must have the power of summarily vindicating their authority; but it did not follow that the power should be indefinite and under no legal regulations. He should be the last person to pass adverse criticisms upon the manner in which the Judges had exercised the powers which the law had vested in them. When they had exercised the particular power under consideration, they had done so from a sense of duty, and under the pressure of grave public necessity. But it was strictly consistent with the confidence which he felt, generally, in their judgment to point out that serious inconveniences might arise from the want of landmarks laid down by law with regard to the measure of punishment however clear the offence might be. The jurisdiction in matters of contempt was in its nature a penal jurisdiction, and depended very much on the discretion of Judges. It was exercised summarily, and in a manner which was entirely exceptional. It was impossible not to see that a jurisdiction of that kind was liable from time to time to provoke censure which, though it might be entirely unmerited, could not be met and answered by the distinguished public servants who were the subjects of attack. They could not vindicate their conduct; and it was, therefore, detrimental to the interests of the Public Service that they should be unnecessarily exposed, in the discharge of

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  their duties, to such criticism. The considerations to which he had drawn attention appeared to apply with additional force, when it was remembered that the power of committing for contempt might be exercised by every single Judge of the Superior Courts, and within narrower limits by the Judges of Inferior Courts. There was yet another reason for legislation. A Judge, even if he pronounced a sentence which might be severe, by no means wished to be more severe than was necessary, and would willingly diminish the severity of the sentence upon the submission of the offending party. Orders of imprisonment for contempt were generally indefinite, it being expected that the offender would make some apology or amends. But there were men so obstinate that they would never make submission. They liked playing the part of martyrs before any audience, however limited; and they would prefer to remain in prison for an indefinite time rather than submit themselves to the law. In such cases thoughtless people were apt to censure the Judges. And when the contempt consisted in disobedience to the orders of a Court, the obstinacy of the offending party might entirely prevent that which was the main object of the punishment—namely, to enforce obedience to the order of the Court. The offender had the power by his obstinacy of still rendering the order ineffectual. If, therefore, their Lordships, while limiting the power of imprisonment, could at the same time provide some better means of enforcing the orders of the Court, they would undoubtedly be doing a good thing. The Government wished to pass a measure which should be applicable, as far as its limiting provisions went, to all the Courts. They proposed to limit the operation of every sentence for contempt to a period not exceeding three months. If no period should be named in the sentence, its operation would expire in three months. The power of fining was to be limited to a maximum of £500. He had felt that it might appear to some that three months' imprisonment was too little; but the provision had been fenced and guarded in various ways, and if, after the expiration of the first term of three months, there was any further continuance of the act constituting the contempt, or any
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  repetition of it, then the Court would have power to continue the imprisonment as if the act were a new and original offence, and could again exercise its penal authority. It had been suggested that there might be cases of such aggravated contempt as to make the maximum punishment proposed by the Bill inadequate for the offence; but if any such aggravated case occurred in the Superior Courts, the Judge would be justified in laying on the fine of £500, and three months' imprisonment might, at the same time, be imposed; and he did not think that any of their Lordships would think that was a light punishment. He thought the authority of the Court would be maintained by means of these maximum punishments, which might, if it were really necessary, be repeated from time to time as often as the offence was committed. The provisions of the Bill which would effect the changes which he had, so far, explained were applicable to Civil, Criminal, and Ecclesiastical Courts. But there were other provisions applicable only to the Civil and Ecclesiastical Courts. Their object was to enable those Courts to secure obedience to their own orders by other means than imprisonment. The first case contemplated was that of a wilful breach of an injunction granted by the High Court of Justice to prevent what might cause serious and, perhaps, in some cases irreparable damage to the parties concerned. He proposed that in such a case, in addition to the Penal Clauses, where a private person suffered damage from contempt, the Court should summarily assess the damage, and make the offender liable. It was also provided that where there was a continued wilful breach of the injunction, the Court might, after the first term of imprisonment was at an end, treat the offence as continued until satisfaction or full compensation had been made. As to orders for money payments, the Court would have the power of enforcing those payments by sequestration, and even by bankruptcy. He proposed also to give the Court power to make vesting orders in the same way as was now provided under the Trustee Acts, in any eases to which those Acts did not already apply. Then, with regard to the delivery up of documents or chattels, a receiver or sequestrator might be ordered to do that instead

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  of the parties. As to wilful disobedience of certain officers, civil or ecclesiastical, to the order of any Court, he proposed that the Court should have power to fix, and from time to time enlarge, for any sufficient cause, a time within which obedience was to be rendered, on pain of deprivation of office, and if within the time so limited the order should not be complied with, then the office should be forfeited as if the holder were dead. But no order of that kind should take effect pending an appeal, and it was only to apply to individual holders of offices, and not to the members of an aggregate body. There would be an exception from the whole Act of one particular class of cases which stood on peculiar grounds—the case of wards of Court, seduced, or married without consent of Court. These were cases which could never be dealt with except by powers capable of being exercised according to circumstances in a strictly penal way, and it might be dangerous to limit the period of imprisonment to three months. From the best consideration he could give to the matter, he had thought it wisest to leave that jurisdiction exactly as it was, and to except these cases entirely from the Bill. It was only necessary to add that the offices which were to be liable to deprivation for contempt of Court were to be the following. Any offices relating to or connected with the administration of justice, below the rank of Judges of the High Courts, which were held for life or during good behaviour; also all municipal or other offices, not being offices held by the pleasure of the Crown, which were charged with the performance of public duties; also all ecclesiastical preferments and offices subject to the jurisdiction of the ordinary Ecclesiastical Courts. Having, as he hoped, sufficiently explained the grounds upon which the Bill was founded, he would now ask their Lordships to give it a first reading.
  Bill to amend the law as to Contempts of Court—Presented (The LORD CHANCELLOR).
  THE EARL OF BELMOREsaid, that reference had been made by the noble and learned Earl to the case of Mr. Green. The Secretary of State for the Home Department commuted or mitigated sentences on prisoners by an exercise of the Royal Prerogative of mercy.
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  He wished to ask the noble and learned Earl by what law, or by what principle of law, the Secretary of State in that case was deprived of the power to release Mr. Green from prison?
  THE LORD CHANCELLORsaid, that the Crown had been advised that though it had an undoubted power to pardon criminal and ecclesiastical offences, yet that mere contempt of Court did not come within that power. No authority, that he was aware of, could be found for the exercise of any such prerogative. He was bound to say that so long as the party guilty of the contempt persisted in his offence, and was unwilling to give any promise of obedience, there would be a difficulty in the exercise of such a prerogative, even if it were clearly established.
  VISCOUNT CRANBROOKinquired whether there was any provision for the remission of the sentence except in cases of submission?
  THE LORD CHANCELLORreplied that there was express provision in the Bill in regard to that matter.
  Bill read 1a; and to be printed. (No. 15.)

SOUTH AFRICA—THE TRANSVAAL —USE OF DYNAMITE BY THE BOERS.

  QUESTION. OBSERVATIONS.
  LORD STANLEY OF ALDERLEYasked the Secretary of State for the Colonies, How it was that the British Resident at Pretoria had not reported the facts mentioned in the newspaper "De Volksstem," Pretoria, 2nd December 1882, of the great destruction of Kaffirs in a cave by dynamite during an attack on the Chief Mapoch towards the end of November last This Chief Mapoch had rendered important service to Lord Wolseley in his campaign against Secocoeni. A letter published in the Volksstem, dated Middleburg, November 27, stated that it was supposed that as many as 50 Kaffirs had been killed by the explosion of the dynamite, and the fact that women and children had been blown, up in an attack on the Chief Mapoch had been stated in recent telegrams. The Volksstem stated that the Boer Commandant who was directing this barbarity had been shot through the head whilst looking into the cave. He could not help thinking that it was unfortunate that the noble Earl had recently said that he saw little difference be-

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  tween the use of gunpowder and dynamite in military operations. No doubt the noble Earl had not intended more than to express his just horror of war, but what had fallen from him would be misinterpreted. There was a legitimate use and an illegitimate use of gunpowder in war; and to have blown up a cave full of men, women, and children with gunpowder, would have been as bad as to have done this with dynamite. The reputation of General Pelissier never recovered from his act of destroying men, women, and children in a cave in Algeria by suffocating them with smoke. The use of dynamite ought not to have received what might be represented as encouragement, because it was not true that all means of destruction were legitimate in warfare; for though the Brussels Conference on the laws of war had not succeeded in its objects, some of which would have been to the advantage of the great and the disadvantage of small States, yet a general consensus had been established against using explosive bullets or poisoning wells. If the use of dynamite were to be tolerated in warfare, especially for the indiscriminate destruction of women and children as well as [of combatants, men's minds would be still more perverted, and a greater number would be found ready to join in the plots of Nihilist and Fenian miscreants. As telegrams to the Cape cost as much as 9s. a word, the noble Earl's recent speech would probably have been very much cut down, and reduced, perhaps, to a statement that he saw no harm in the Boers using dynamite. He therefore hoped that his noble Friend the Secretary of State for the Colonies would reconsider what he had said a few days ago, and prevent the mischief which might arise from its being supposed, most certainly quite erroneously, that he was indifferent to such horrible cruelty. This question had now assumed much greater importance since the Prime Minister's statement that dynamite had been used in warfare by British officers in South Africa, and care should be taken by Her Majesty's Government that if dynamite be issued to the Army, it be only used for legitimate purposes, and not as recently used by the Boers.
  THE EARL OF DERBYsaid, he had not thought that the very obvious and harmless remark which he had made
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  would have been open to so much misconstruction. He was not sorry that the noble Lord had given him the opportunity, not of explaining his previous utterances, for they required no explanation, but of reminding their Lordships as to what he had really said. He had been questioned as to the use of dynamite by the Boers in their operations against Mapoch. He had answered that he had no official knowledge as to such an occurrence, and had incidentally added that if military operations were to be carried on he did not see that the use of dynamite was necessarily more objectionable than the use of gunpowder. He still was of that opinion. Mining, he presumed, was an ordinary operation of war; and it was impossible to draw any moral distinction between explosions produced by dynamite and by gunpowder. He spoke, however, only of the legitimate operations of war, and in answer to a Question in which not one word was said of the massacre of women and children and non-combatants. The remark had simply been evoked by the fact that the Question put by his noble Friend on the occasion to which he referred seemed to assume that the use of dynamite in war was not permissible. With respect to the allegation now made by his noble Friend on the authority of a Dutch paper, he could only say that he had again searched through the Papers at the Colonial Office in order to see whether he had been strictly accurate in saying that they had no record of any such transactions as those referred to, and he found that they had no such record. But, as the matter had been alluded to in both Houses of Parliament, he had telegraphed to the Cape inquiring whether anything was known on the subject by the authorities there; and until some information was received that could be relied upon, he thought it would be well that their Lordships should suspend their judgment as to the truth of the allegation. He had only to add that it was not in his power to issue instructions to British officers as to the use of dynamite in warfare; but he was confident that British officers would never conduct their operations so as to inflict unnecessary suffering.
  VISCOUNT CRANBROOKsaid, he was not going to interpose in this inquiry as to the justifiable use of explosives; but, having gone through the very un-

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  pleasant reading of Papers relating to the Transvaal, he desired to give Notice that he should draw attention to them at an early date.

  MEDICAL ACT AMENDMENT BILL [H.L.]
  A Bill for the consolidation and amendment of the Law relating to Medical Practitioners—Was presented by the LORD PRIVY SEAL; read 1a". (No. 16.)"
  House adjourned at half past Five o'clock, till To-morrow, a quarter past Ten o'clock.