TOPICS OF THE DAY.
CONTEMPT OF COURT. EVERY Court of Justice is the guardian of its own dignity and efficiency, and the Court 'which is now sitting to investigate the Times' allegations as to the com- plicity of the National League with crime is specially qualified for that function. It possesses all the preroga- tives of a High Court, and its Judges were approved by Parliament previous to their appointment as men especially competent, impartial, and possessed of the national con- fidence. It would, therefore, be only presumptuous for outsiders to doubt that their decision in the O'Brien matter was the best that could be given. The Judges must have had good and sufficient reasons for their action, and all that the dissatisfied have a right to say is that those reasons are not apparent on the face of the proceedings. With the general and growing distaste to any exercise of the right of committal for contempt, we confess to a certain sympathy. The power is undoubtedly liable to abuse, it is in- consistent with modern manners, and it is never thoroughly understood by the people far whose contentment the jury system was invented. We heartily wish it were possible that every Court should go on its way regardless of all things outside itself, should leave resistance to be punished by the Executive, and should no more attend to newspaper comment than to the twitterings of the birds on the Court-house eaves. That, however, is impossible. It is agreed on all hands that there are at least three cases in which a Court must, in the interests of justice, be able to punish for contempt,—namely, when the Court itself is threatened ; when its dignity is so outraged that witnesses and juries no longer respect it ; and when the contempt takes a form by which witnesses are intimidated. Nobody argues that a Court is free, if listeners point revolvers at the heads of the Judges. Nobody doubts that counsel might make remarks which would positively impede the course of justice ; and nobody has yet defended the threatening of witnesses. In the present case, there was no charge of terrorising the Judges, though we should maintain, if the case ever arose, that it was as possible and as wicked to terrorise them by comment during the progress of a case as by a revolver. There are men, and able men, on the Bench, in the Cabinet, and in the Army, who are far more afraid of the impalpable and blind force called "Public Opinion," than of any extent of physical or personal harm they can sustain. It is like the fear of a ghost, against which ordinary courage is often no protection. The Court, again, has decided that, Mr. O'Brien having denied any intention on the part of his journal to insult the Judges, their dignity remains unimpaired ; and, as we have said, they are and must be sole guardians of their own honour. It would be absurd to say that because the public thinks that charges implying submissiveness to Government are calculated to impair the dignity of a Court, therefore the Judges are to think so too. But as regards the third case, the intimidation of witnesses, the decision of Wednesday leaves matters in this inexplicable position,—that the Court held the remarks of Mr. O'Brien's journal to be calculated to intimidate witnesses, and yet allowed him to escape without even a nominal punishment, with, indeed, a great addition to his credit among the disaffected of Ireland. Doubtless the Judges were right, and in accord with precedent, though Mr. Harrington had been fined X500 ; but we fear that their judgment will suggest to uninstructed men the false impression that they hold the offence to have been committed, but do not hold it to be worthy of any punishment. That is a pity, because it may release commentators whose inten- tions are much worse than those of Mr. O'Brien are believed by the Judges to have been, and who may assure witnesses that if their evidence is unacceptable to the populace, they shall be placed in a moral pillory, which, when they are Irish, they fear as much as assassina- tion, and more than mob attacks. Such commentators may now think, erroneously, as Sir James Hannen warned them, that their conduct no more justifies punishment than did that of Mr. O'Brien. We see, as we said, no plain reason in the judgment for the result arrived at, and certainly there is nothing in the arguments advanced by Mr. O'Brien which may serve as adequate reason for the decision. His speech was an eloquent one, and admittedly impressed the Court; but its arguments were only three. First, that the whole trial was " political ;" secondly, that the Times was poisoning the public mind by the circulation of its pamphlet, " Parnellism and Crime ;" and thirdly, that the opposite parties were unduly delaying the trial, in order to crush the Parnellites by exhausting their pecuniary resources. The answer to the first argument, even if it is true, which we think most fair-minded persons would deny, is that comment is no more allowed in a trial for treason than in any other, and that the present proceedings, even if they arose out of politics, are part of a trial deliberately ordered by Parliament, in order to exonerate those who are now, on the hypothesis, attacking the impartiality or competence of the Court. The answer to the second allegation is, that granting its absolute truth, it is as competent to Sir Charles Russell to complain of the Times as to Sir R. Webster to complain of United. Ireland, and that when two persons can commit an offence, A's guilt is no proof of B's innocence. And the answer to the third is, that whether the complaint is founded or unfounded—and certainly, so far as the length of the evidence is concerned, Mr. O'Brien has the sympathy of all civilised beings—the tediousness of the testimony is no excuse for injurious comment upon the proceedings of the Court, which has repeatedly complained of that very feature in the case.
We entirely admit, and it would be most unfair to avoid saying, that the difficulties in the way of this Court in the matter of contempt are hardly soluble by mortal ingenuity. The Court can notice only such instances of contempt as are brought before it, but the Judges know, like everybody else, that not one instance in fifty is brought before them ; that journalist after journalist, even in London, is as guilty of contempt as Mr. O'Brien was alleged to be ; and that at least one speaker in England says, unscathed, things which, if he were an Irish orator, would at once be brought before the Court. It is undeniable, also, that in all semi-political trials comment is always bitter, and that it is part of the Irish habit of mind to express political bitterness in the form of contemptuous charges. In Ireland, the way of saying that a man is a Tory, is to say that his grandfather stole a hen, and ate it, feathers and all ; and among themselves, being quick-witted, the people understand what is meant. Doubt- less the Judges took all such facts into consideration, and this further one, as to which we feel heartily sympathetic with their undoubted impulse. It is of the highest moment that the great and unusual tribunal created to try this unprecedented case, should show itself, as regards all Irishmen, as painfully impartial as it necessarily is ; that it should not only be absolutely fair, but should so bear it- self as to convince an ignorant population, studiously taught to believe that English Judges and juries are biassed against Ireland, of its freedom even from the most natural and excusable kind of prejudice. It should never sway towards Irishmen any more than towards Englishmen ; but it should specially mark, in questions into which nationality enters, that if it could have a bias, it would be towards the feebler side. So strongly do we entertain this feeling, that we are heartily glad Mr. O'Brien escaped, though the reasons given for the escape do not convince us, and though we see danger in the escape, of a general abrogation of the invaluable rule, that when issue in Court is once joined, comment should be suspended. We have no wish to state again the aIguments which seem to us conclusive against such comment ; but there is one which we desire to set down because it always escapes attention. It is constantly assumed that comment is wrong, because it may prejudice jurymen or Judges against the accused ; but it very often tells more mischievously against justice, and in their favour. This is its nearly invariable effect in America and France, and it is perfectly natural that it should be so. The public and their over-hurried guides, the journalists, always take sides ; and those who defend the accused, resort of necessity to the most effective means of defence,—the publication of the statements of witnesses who are sometimes disqualified by law and always unsworn, and exempted from cross-examination, and who are tempted by their position to make their evidence as sensational as possible. Everybody likes to seem to know something unknown to the rest of mankind ; and with the ignorant this temptation to be important for a moment is almost irresistible. It is simply impossible for jurymen to remain unaffected by such testimony—look how it weighs with unpaid Magistrates every week of the year —and the theoretical exemption of Judges is, we suspect, to some extent conventional. The prisoner about whom the whole nation is talking, is not, in fact, tried by a sworn jury and on carefully sifted evidence, but by an irresponsible jury, which may even be corrupt, and on evidence which, as in one American case in our minds, may be scientifically manufactured for the express purpose of influencing opinion. The evil is not yet a great one in England, comment usually beginning after the verdict ; but if comment were unrestricted, it would rapidly assume grave proportions, more especially in cases of murder, many of the opponents of capital punishment hardly caring what they say or do, if only they may "save a victim from the gallows." Comment upon the Lipski case of the kind made after the trial, would, had it been made during the trial, have saved Lipski ; and Lipski was not only palpably guilty, but confessed his guilt.
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