Authorities.—Mommsen,Römisches Staatsrecht, ii. pp. 74-140 (3rd ed., Leipzig, 1887); Herzog,Geschichte und System der römischen Staatsverfassung, i. p. 688 foll., 827 foll. (Leipzig, 1884, &c.), Lange,Römische Alterthümer, i. p. 524 foll. (Berlin, 1856, &c.); Schiller,Staats- und Rechtsaltertümer, p. 53 foll. (Munich, 1893,Handbuch der klassischen Altertums-Wissenschaft, von Dr Iwan von Müller); Daremberg-Saglio,Dictionnaire des antiquités grecques et romaines, i. 1455 foll. (1875, &c.); De Ruggiero,Dizionario epigrafico di antichità Romane, ii. 679 foll., 868 foll. (Rome, 1886, &c.); Pauly-Wissowa,Realencyclopädie, iv. 1112 foll. (new edition, Stuttgart, 1893, &c.).For the consular diptychs, cf. besides Daremberg-Saglio,l.c., Gori,Thesaurus veterum diptychorum(Florence, 1759), and Labarte,Histoire des arts industriels au moyen âge, i. p. 10 foll., 190 foll. (1st ed., Paris, 1864).
Authorities.—Mommsen,Römisches Staatsrecht, ii. pp. 74-140 (3rd ed., Leipzig, 1887); Herzog,Geschichte und System der römischen Staatsverfassung, i. p. 688 foll., 827 foll. (Leipzig, 1884, &c.), Lange,Römische Alterthümer, i. p. 524 foll. (Berlin, 1856, &c.); Schiller,Staats- und Rechtsaltertümer, p. 53 foll. (Munich, 1893,Handbuch der klassischen Altertums-Wissenschaft, von Dr Iwan von Müller); Daremberg-Saglio,Dictionnaire des antiquités grecques et romaines, i. 1455 foll. (1875, &c.); De Ruggiero,Dizionario epigrafico di antichità Romane, ii. 679 foll., 868 foll. (Rome, 1886, &c.); Pauly-Wissowa,Realencyclopädie, iv. 1112 foll. (new edition, Stuttgart, 1893, &c.).
For the consular diptychs, cf. besides Daremberg-Saglio,l.c., Gori,Thesaurus veterum diptychorum(Florence, 1759), and Labarte,Histoire des arts industriels au moyen âge, i. p. 10 foll., 190 foll. (1st ed., Paris, 1864).
(A. H. J. G.)
CONSUL,a public officer authorized by the state whose commission he bears to manage the commercial affairs of its subjects in a foreign country, and formally permitted by the government of the country wherein he resides to perform the duties which are specified in his commission, orlettre de provision. (For the ancient magisterial office of consul see separate article above.)
A consul, as such, is not invested with any diplomatic character, and he cannot enter on his official duties until a rescript, termed anexequatur(sometimes a mere countersign endorsed on the commission), has been delivered to him by the authorities of the state to which his nomination has been communicated by his own government. Thisexequatur, called in Turkey abarat, may be revoked at any time at the discretion of the government where he resides. The status of consuls commissioned by the Christian powers to reside in Mahommedan countries, China, Korea, Siam, and, until 1899, in Japan, and to exercise judicial functions in civil and criminal matters between their own countrymen and strangers, is exceptional to the common law, and is founded on special conventions orcapitulations(q.v.).
The title of consul, in the sense in which it is used in international law, is derived from that of certain magistrates, in the cities of medieval Italy, Provence and Languedoc, charged with the settlement of trade disputes whether by sea or land (consules mercatorum, consules artis maris, &c.)1With the growth of trade it early became convenient to appoint agents with similar powers in foreign parts, and these often, though not invariably, were styled consuls (consules in partibus ultramarinis).2The earliest foreign consuls were those established by Genoa, Pisa, Venice and Florence, between 1098 and 1196, in the Levant, at Constantinople, in Palestine, Syria and Egypt. Of these the Pisan agent at Constantinople bore the title of consul, the Venetian that ofbaylo(q.v.). In 1251 Louis IX. of France arranged a treaty with the sultan of Egypt under which French consuls were established at Tripoli and Alexandria, and Du Cange cites a charter of James of Aragon, dated 1268, granting to the city of Barcelona the right to elect consuls inpartibus ultramarinis, &c. The free growth of the system was, however, hampered by commercial and dynastic rivalries. The system of French foreign consulships, for instance, all but died out after the crushing of the independent life of the south and the incorporation of Provence and Languedoc under the French crown; while, with the establishment of Venetian supremacy in the Levant, thebaylodeveloped into a diplomatic agent of the first class at the expense of the consuls of rival states. The modern system of consulships actually dates only from the 16th century. Early in this century both England and Scotland had their “conservators” with “jurisdiction to do justice between merchant and merchant beyond the seas”; but France led the way. The alliance between Francis I. and Suleiman the Magnificent gave her special advantages in the Levant, of which she was not slow to take advantage. Her success culminated in the capitulations signed in 1604, under the terms of which her consuls were given precedence over all others and were endowed with diplomatic immunities (e.g. freedom from arrest and from domiciliary visits), while the traders of all other nations were put under the protection of the French flag. It was not till 1675 that, under the first capitulations signed with Turkey, English consuls were established in the Ottoman empire. Ten years earlier, under the commercial treaty between England and Spain, they had been established in Spain.
The frequent wars of the succeeding century hindered the development of the consular system. Thus, though the system of consuls was regularly established in France by the ordinance of 1661, in 1760 France had consuls only in the Levant, Barbary, Italy, Spain and Portugal, while she discouraged the establishment of foreign consuls in her own ports as tending to infringe her own jurisdiction. It was not till the 19th century that the system developed universally. Hitherto consuls had, for the most part, been business men with no special qualification as regards training; but the French system, under which the consular service had been long established as part of the general civil service of the country, a system that had survived the Revolution unchanged, was gradually adopted by other nations; though, as in France, consuls not belonging to the regular service, and having an inferior status, continued to be appointed. In Great Britain the consular service was organized in 1825 (see below); in France the series of ordinances and laws by which its modern constitution was fixed began in 1833. In Germany progress was hindered by the political conditions of the country under the old Confederation; for the Hanse cities, which practically monopolized the oversea trade, lacked the means to establish a consular system on the French model. The present magnificently organized consular system of Germany is, then, one of the most remarkable outcomes of the establishment of the united empire. It was initiated by an act of the parliament of the North German Confederation (Nov. 8, 1867), subsequently incorporated in the statutes of the Empire, which laid down the principle that the German consulates were to be under the immediate jurisdiction of the president of the Confederation (later the emperor). The functions, duties and privileges of French and German consuls do not differ materially from those of British consuls; but there is a great difference in the organization andpersonnelof the consular service. In France, apart from theconsuls élusorconsuls marchands, who are mere consular agents, selected by the government from among the traders of atown where it desires to be represented, and unsalaried, the consular body proper was, by the decrees of July 10, 1880, and April 27, 1883, practically constituted a branch of the diplomatic service. It is recruited from the same sources, and its members are free to exchange into thecorps diplomatique, or vice versa. Candidates for the diplomatic and consular services have to undergo the same training and pass the same examinations, i.e. in the constitutional, administrative and judicial organization of the various powers, in international law, commercial law and maritime law, in the history of treaties and in commercial and political geography, in political economy, and in the German and English languages. They have to serve three years abroad or attached to some ministerial department before they can enter for the examination which entitles them to an appointment as attaché or asconsul suppléant. This assimilation of the consular to the diplomatic service remains peculiar to France.3
In Germany it was enacted by the law of February 28, 1873, that German consuls must be either trained jurists, or must have passed special examinations. The result of this system has been the establishment throughout the world of an elaborate network of trained commercial experts, directly responsible to the central government, and charged as one of their principal duties with the task of keeping the government informed of all that may be of interest to German traders. These annual consular reports were from the first regularly and promptly published in theDeutsche Handelsarchiv, and have contributed much to the wonderful expansion of German trade. The right to establish consuls is now universally recognized by Christian civilized states. Jurists at one time contended that according to international law a right of “ex-territoriality” attached to consuls, their persons and dwellings being sacred, and themselves amenable to local authority only in cases of strong suspicion on political grounds. It is now admitted that, apart from treaty, custom has established very few consular privileges; that perhaps consuls may be arrested and incarcerated, not merely on criminal charges, but for civil debt; and that, if they engage in trade or become the owners of immovable property, their persons certainly lose protection. This question of arrest has been frequently raised in Europe:—in the case of Barbuit, a tallow-chandler, who from 1717 to 1735 acted as Prussian consul in London, and to whom the exemption conferred by statute on ambassadors was held not to apply; in the case of Cretico, the Turkish consul in London in 1808; in the case of Begley, the United States consul at Genoa, arrested in Paris in 1840; and in the case of De la Fuente Hermosa, Uruguayan consul, whom theCour Royaleof Paris in 1842 held liable to arrest for debt. In the same way consuls are often exempt from all kinds of rates and taxes, and always from personal taxes. They are exempt from billeting and military service, but are not entitled (except in the Levant, where also freedom from arrest and trial is the rule) to have private chapels in their houses. The right of consuls to exhibit their national arms and flag over the door of the bureau is not disputed.
Until the year 1825 British consuls were usually merchants engaged in trade in the foreign countries in which they acted as consuls, and their remuneration consisted entirely of fees. An act of that year, however, organized the consular service as a branch of the civil service, with payment by a fixed salary instead of by fees; consuls were forbidden also to engage in trade, and the management of the service was put under the control of a separate department of the foreign office, created for the purpose. In 1832 the restriction as to engaging in trade was withdrawn, except as regards salaried members of the British consular service.
The duty of consuls, under the “General Instructions to British Consuls,” is to advise His Majesty’s trading subjects, to quiet their differences, and to conciliate as much as possible the subjects of the two countries. Treaty rights he is to support in a mild and moderate spirit; and he is to check as far as possible evasions by British traders of the local revenue laws. Besides assisting British subjects who are tried for offences in the local courts, and ascertaining the humanity of their treatment after sentence, he has to consider whether home or foreign law is more appropriate to the case, having regard to the convenience of witnesses and the time required for decision; and, where local courts have wrongfully interfered, he puts the home government in motion through the consul-general or ambassador. He sends in reports on the labour, manufacture, trade, commercial legislation and finance, technical education, exhibitions and conferences of the country or district in which he resides, and, generally, furnishes information on any subject which may be desired of him. He acts as a notary public; he draws up marine and commercial protests, attests documents brought to him, and, if necessary, draws up wills, powers of attorney, or conveyances. He celebrates marriages in accordance with the provisions of the Foreign Marriage Act 1892, and, where the ministrations of a clergyman cannot be obtained, reads the burial service. At a seaport he has certain duties to perform in connexion with the navy. In the absence of any of His Majesty’s ships he is senior naval officer; he looks after men left behind as stragglers, or in hospital or prison, and sends them on in due course to the nearest ship. He is also empowered by statute to advance for the erection or maintenance of Anglican churches, hospitals, and places of interment sums equal to the amount subscribed for the purpose by the resident British subjects.
As the powers and duties of consuls vary with the particular commercial interests they have to protect, and the civilization of the state in whose territory they reside, instead of abstract definition, we summarize the provisions on this subject of the British Merchant Shipping Acts.4Consuls are bound to send to the Board of Trade such reports or returns on any matter relating to British merchant shipping or seamen as they may think necessary. Where a consul suspects that the shipping or navigation laws are being evaded, he may require the owner or master to produce the log-book or other ship documents (such as the agreement with the seamen, the account of the crew, the certificate of registration); he may muster the crew, and order explanations with regard to the documents. Where an offence has been committed on the high seas, or aboard ashore, by British seamen or apprentices, the consul makes inquiry on oath, and may send home the offender and witnesses by a British ship, particulars for the Board of Trade being endorsed on the agreement for conveyance. He is also empowered to detain a foreign ship the master or seamen of which appear to him through their misconduct or want of skill to have caused injury to a British vessel, until the necessary application for satisfaction or security be made to the local authorities. Every British mercantile ship, not carrying passengers, on entering a port gives into the custody of the consul to be endorsed by him the seamen’s agreement, the certificate of registry, and the official log-book; a failure to do this is reported to the registrar-general of seamen. The following five provisions are also made for the protection of seamen. If a British master engage seamen at a foreign port, the engagement is sanctioned by the consul, acting as a superintendent of Mercantile Marine Offices. The consul collects the property (including arrears of wages) of British seamen or apprentices dying abroad, and remits to H.M. paymaster-general. He also provides for the subsistence of seamen who are shipwrecked, discharged, or left behind, even if their service was with foreign merchants; they are generally sent home in the first British ship that happens to be in want of a complement, and the expenses thus incurred form a charge on the parliamentary fund for the relief of distressed seamen, the consul receiving acommission of 2½% on the amount disbursed. Complaints by crews as to the quality and quantity of the provisions on board are investigated by the consul, who enters a statement in the log-book and reports to the Board of Trade. Money disbursed by consuls on account of the illness or injury of seamen is generally recoverable from the owner. With regard to passenger vessels, the master is bound to give the consul facilities for inspection and for communication with passengers, and to exhibit his “master’s list,” or list of passengers, so that the consul may transmit to the registrar-general, for insertion in the Marine Register Book, a report of the passengers dying and children born during the voyage. The consul may even defray the expenses of maintaining, and forwarding to their destination, passengers taken off or picked up from wrecked or injured vessels, if the master does not undertake to proceed in six weeks; these expenses becoming, in terms of the Passenger Acts 1855 and 1863, a debt due to His Majesty from the owner or charterer, where a salvor is justified in detaining a British vessel, the master may obtain leave to depart by going with the salvor before the consul, who, after hearing evidence as to the service rendered and the proportion of ship’s value and freight claimed, fixes the amount for which the master is to give bond and security. In the case of a foreign wreck the consul is held to be the agent of the foreign owner. Much of the notarial business which is imposed on consuls, partly by statute and partly by the request of private parties, consists in taking the declarations as to registry, transfers, &c., under the Mercantile Shipping Acts. Consuls in the Ottoman empire, China, Siam and Korea have extensive judicial and executive powers.
Since the incorporation of the British consular service in the civil service there have been several proposals to “reform” the system with the view of increasing its usefulness, more particularly from the point of view of providing assistance to British trade abroad (seeReports of Special Committees of the House of Commons on the Consular Service, 1858, 1872, 1903). It has been frequently urged that British consuls in their commercial knowledge and intercourse with foreign merchants compare unfavourably, for example, with the consuls of the United States. It must be remembered, however, that there are points of striking dissimilarity between the duties of the consuls of these two countries. The American consul is necessarily brought much into touch with the trade and commerce of the country to which he is assigned through the system of consular invoices (seeAd Valorem); in his ordinary reports he is not confined to one stereotyped form, and when preparing special reports (a valuable feature of the United States consular service) he is liberally treated as regards any expense to which he has been put in obtaining information. He is practically free from the multifarious duties which the English consul has to discharge in connexion with the mercantile marine, nor has he to perform marriage ceremonies; and financially he is much better off, being allowed to retain as personal all fees obtained from his notarial duties. The Committee of 1903 was appointed to inquire,inter alia, whether the limits of age—25 to 50—for candidates should be altered, and whether service as a vice-consul for a certain period should be required to qualify for promotion to the rank of consul; whether means could not be adopted to give consular officers opportunities of increasing their practical knowledge of commercial matters and to bring them more into personal contact with the commercial community. The suggestions of the committee as the result of its inquiries were adopted in principle by the Foreign Office. The consular service is now grouped into three main divisions: (1) the general service; (2) Levant and Persia; and (3) China, Japan, Korea and Siam. The general consular service is graded into three divisions: first grade, consuls-general, salary £1000 with local allowances; second grade, consuls-general and consuls, salary £800 and local allowances; third grade, consuls, salary £600, with local allowances. Vice-consuls have an annual salary of £350, rising by annual increments of £15 to £450. In the general consular service appointments are sometimes made to the higher offices from the ranks, but more usually from a select list of nominees, who must pass a qualifying examination. A proportion of the vacancies are reserved for competition amongst candidates who have had actual commercial experience. Divisions 2 and 3 are recruited by open competition. There were at one time a small number of commercial agents whose business consisted in watching and reporting on the commerce, industries and products of special districts, and in answering inquiries on commercial subjects. Their duties were subsequently transferred to the consular staff, and a new class of officers, consular attachés, created. The consular attachés divide their time between special investigations abroad, and visits to manufacturing districts in the United Kingdom. The headquarters of the commercial attachés in Europe, except those at Paris and Constantinople, were transferred to London, without defined districts, in 1907 (seeReport on the System of British Commercial Attachés and Agents, 1908, Cd. 3610). “Pro-consuls” are frequently appointed for the purpose of administering oaths, taking affidavits or affirmations, and performing notarial acts under the Commissioners for Oaths Acts 1889.
The position of the United States consuls is minutely described in the Regulations, Washington, 1896. Under various treaties and conventions they enjoy large privileges and jurisdiction. By the treaty of 1816 with Sweden the United States government agreed that the consuls of the two states respectively should be sole judges in disputes between captains and crews of vessels. (Up to 1906 there were eighteen treaties containing this clause.) By convention with France in 1853 they likewise agreed that the consuls of both countries should be permitted to hold real estate, and to have the “police interne des navires à commerce.” In Borneo, China, Korea, Morocco, Persia, Siam, Tripoli and Turkey an extensive jurisdiction, civil and criminal, is exercised by treaty stipulation in cases where United States subjects are interested. Exemption from liability to appear as a witness is often stipulated. The question was raised in France in 1843 by the case of the Spanish consul Soller at Aix, and in America in 1854 by the case of Dillon, the French consul at San Francisco, who, on being arrested by Judge Hoffmann for declining to give evidence in a criminal suit, pulled down his consular flag. So, also, inviolability of national archives is often stipulated. To the consuls of other nations the United States government have always accorded the privileges of arresting deserters, and of being themselves amenable only to the Federal and not to the States courts. They also recognize foreign consuls as representative suitors for absent foreigners.
The United States commercial agents are appointed by the president, and usually receive anexequatur. They form a class by themselves, and are distinct from the consular agents, who are simply deputy consuls in districts where there is no principal consul.
By a law of April 1906 the U.S. consular service was reorganized and graded, the office of consul-general being divided into seven classes, and that of consul into nine classes; and on June 27 an executive order was issued by President Roosevelt governing appointments and promotions.
See A. de Miltitz,Manuel des consuls(London and Berlin, 1837-1843); Baron Ferdinand de Cussy,Dictionnaire du diplomate et du consul(Leipzig, 1846), andRéglements consulaires des principaux états maritimes de l`Europe et de l`Amérique(ib., 1851); Tuson,British Consul’s Manual(London, 1856); De Clercq,Guide pratique des consulats(1st ed., 1858, 5th ed. by de Vallat, Paris, 1898); C. J. Tarring,British Consular Jurisdiction in the East(London, 1887); Lippmann,Die Konsularjurisdiktion im Orient(Berlin, 1898); Zorn,Die Konsulargesetzgebung des deutschen Reichs(2nd ed., Berlin, 1901); v. König,Handbuch des deutschen Konsularwesens(6th ed., Berlin, 1902); Martens,Das deutsche Konsular-und Kolonialrecht(Leipzig, 1904); Malfatti di Monte Tretto,Handbuch des österreichischungarischen Konsularwesens(2 vols., 2nd ed., Vienna, 1904). See also theParliamentary Reportsreferred to in the text. For British consuls much detailed information, including, e.g., minute directions for the uniforms of the various grades, will be found in the officialForeign Office Listpublished annually. As regards American consuls, see C. L. Jones,The Consular Service of the U. S. A.(Philadelphia, 1906);Publications of Univ. of Pennsylvania, “Series in Pol. Econ. and Public Law,” No. 18; and Fred. Van Dyne,Our Foreign Service(Rochester, N.Y., 1909).
See A. de Miltitz,Manuel des consuls(London and Berlin, 1837-1843); Baron Ferdinand de Cussy,Dictionnaire du diplomate et du consul(Leipzig, 1846), andRéglements consulaires des principaux états maritimes de l`Europe et de l`Amérique(ib., 1851); Tuson,British Consul’s Manual(London, 1856); De Clercq,Guide pratique des consulats(1st ed., 1858, 5th ed. by de Vallat, Paris, 1898); C. J. Tarring,British Consular Jurisdiction in the East(London, 1887); Lippmann,Die Konsularjurisdiktion im Orient(Berlin, 1898); Zorn,Die Konsulargesetzgebung des deutschen Reichs(2nd ed., Berlin, 1901); v. König,Handbuch des deutschen Konsularwesens(6th ed., Berlin, 1902); Martens,Das deutsche Konsular-und Kolonialrecht(Leipzig, 1904); Malfatti di Monte Tretto,Handbuch des österreichischungarischen Konsularwesens(2 vols., 2nd ed., Vienna, 1904). See also theParliamentary Reportsreferred to in the text. For British consuls much detailed information, including, e.g., minute directions for the uniforms of the various grades, will be found in the officialForeign Office Listpublished annually. As regards American consuls, see C. L. Jones,The Consular Service of the U. S. A.(Philadelphia, 1906);Publications of Univ. of Pennsylvania, “Series in Pol. Econ. and Public Law,” No. 18; and Fred. Van Dyne,Our Foreign Service(Rochester, N.Y., 1909).
1The title of consul was borne by the chief municipal officers of several cities of the south of France during the middle ages and up to the Revolution. The name was not due to their being the successors of the chiefs of the Romanmunicipia. They were members of the governing body known as theconsulat, and in Latin documents are sometimes styledconsiliarii, i.e. councillors. Theconsulatitself is not traceable beyond the 12th century.2Particular quarters of mercantile cities were assigned to foreign traders and were placed under the jurisdiction of their own magistrates, variously styled syndics, provosts (praepositi), échevins (scabini), &c., who had power to fine or to expel from the quarter. TheHanseatic League(q.v.), particularly, had numerous settlements of this kind, the earliest being the Steelyard at London, established in the 13th century.3i.e. as regards the organization of the system. Consuls, or consuls-general, of other countries have sometimes a diplomatic or quasi-diplomatic status. Consuls-general chargés d’affaires, e.g., rank as diplomatic agents. Of these the most notable is the British agent and consul-general in Egypt, whose position is unique. The diplomatic agent of Belgium at Buenos Aires, e.g., is minister-resident and consul-general, and the minister of Ecuador in London is consul-general chargé d’affaires.4See also instructions to consuls prepared by the Board of Trade and approved by the secretary of state for foreign affairs.
1The title of consul was borne by the chief municipal officers of several cities of the south of France during the middle ages and up to the Revolution. The name was not due to their being the successors of the chiefs of the Romanmunicipia. They were members of the governing body known as theconsulat, and in Latin documents are sometimes styledconsiliarii, i.e. councillors. Theconsulatitself is not traceable beyond the 12th century.
2Particular quarters of mercantile cities were assigned to foreign traders and were placed under the jurisdiction of their own magistrates, variously styled syndics, provosts (praepositi), échevins (scabini), &c., who had power to fine or to expel from the quarter. TheHanseatic League(q.v.), particularly, had numerous settlements of this kind, the earliest being the Steelyard at London, established in the 13th century.
3i.e. as regards the organization of the system. Consuls, or consuls-general, of other countries have sometimes a diplomatic or quasi-diplomatic status. Consuls-general chargés d’affaires, e.g., rank as diplomatic agents. Of these the most notable is the British agent and consul-general in Egypt, whose position is unique. The diplomatic agent of Belgium at Buenos Aires, e.g., is minister-resident and consul-general, and the minister of Ecuador in London is consul-general chargé d’affaires.
4See also instructions to consuls prepared by the Board of Trade and approved by the secretary of state for foreign affairs.
“CONSULATE OF THE SEA,”a celebrated collection of maritime customs and ordinances (see alsoSea Laws) in the Catalan language, published at Barcelona in the latter part of the 15th century. Its proper title isThe Book of the Consulate, or in Catalan,Lo Libre de Consolat, the name being derived from the fact that it embodied the rules of law followed in the maritime cities of the Mediterranean coast by the commercial judges known generally asconsuls(q.v.). The earliest extant edition of the work, which was printed at Barcelona in 1494, is without a title-page or frontispiece, but it is described by the above-mentioned title in the epistle dedicatory prefixed to the table of contents. The only known copy of this edition is preserved in the National Library in Paris. The epistle dedicatory states that the work is an amended version of theBook of the Consulate, compiled by Francis Celelles with the assistance of numerous shipmasters and merchants well versed in maritime affairs. According to a statement made by Capmany in hisCodigo de los costumbras maritimas de Barcelona, published at Madrid in 1791, there was extant to his knowledge in the last century a more ancient edition of theBook of the Consulate, printed in semi-Gothic characters, which he believed to be of a date prior to 1484. This is the earliest period to which any historical record of theBook of the Consulatebeing in print can be traced back. There are, however, two Catalan MSS. preserved in the National Library in Paris, the earliest of which, being MS. Espagnol 124, contains the two first treatises which are printed in theBook of the Consulateof 1494, and which are the most ancient portion of its contents, written in a hand of the 14th century, on paper of that century. The subsequent parts of this MS. are on paper of the 15th century, but there is no document of a date more recent than 1436. The later of the two MSS., being MS. Espagnol 56, is written throughout on paper of the 15th century, and in a hand of that century, and it purports, from a certificate on the face of the last leaf, to have been executed under the superintendence of Peter Thomas, a notary public, and the scribe of the Consulate of the Sea at Barcelona.
The edition of 1494, which is justly regarded as theeditio princepsof theBook of the Consulate, contains, in the first place, a code of procedure issued by the kings of Aragon for the guidance of the courts of the consuls of the sea, in the second place, a collection of ancient customs of the sea, and thirdly, a body of ordinances for the government of cruisers of war. A colophon at the end of these ordinances informs the readers that “the book commonly called theBook of the Consulateends here”; after which there follows a document known by the title ofThe Acceptations, which purports to record that the previous chapters and ordinances had been approved by the Roman people in the 11th century, and by various princes and peoples in the 12th and 13th centuries. Capmany was the first person to question the authenticity of this document in hisMemorias historicas sobre la marina, &c., de Barcelona, published at Madrid in 1779-1792. Pardessus and other writers on maritime law followed up the inquiry in the 19th century, and have conclusively shown that the document, whatever may have been its origin, has no proper reference to theBook of the Consulate, and is, in fact, of no historical value whatsoever. The paging of the edition of 1494 ceases with this document, at the end of which is the printer’s colophon, reciting that “the work was completed on the 14th of July 1494, at Barcelona, by Père Posa, priest and printer.” The remainder of the volume consists of what may be regarded as an appendix to the originalBook of the Consulate. This appendix contains various maritime ordinances of the kings of Aragon and of the councillors of the city of Barcelona, ranging over a period from 1340 to 1484. It is printed apparently in the same type with the preceding part of the volume. The originalBook of the Consulate, coupled with this appendix, constitutes the work which has obtained general circulation in Europe under the title ofThe Consulate of the Sea, and which in the course of the 16th century was translated into the Castilian, the Italian, and the French languages. The Italian translation, printed at Venice in 1549 by Jean Baptista Pedrezano, was the version which obtained the largest circulation in the north of Europe, and led many jurists to suppose the work to have been of Italian origin. In the next following century the work was translated into Dutch by Westerven, and into German by Engelbrecht, and it is also said to have been translated into Latin.
An excellent translation into French of “The Customs of the Sea,” which are the most valuable portion of theBook of the Consulate, was published by Pardessus in the second volume of hisCollection des lois maritimes(Paris, 1834), under the title of “La Compilation connue sous le nom de consulat de la mer.” See introduction, by Sir Travers Twiss, to theBlack Book of the Admiralty(London, 1874), which in the appendix to vol. iii. contains his translation of “The Customs of the Sea,” with the Catalan text.(T. T.)
An excellent translation into French of “The Customs of the Sea,” which are the most valuable portion of theBook of the Consulate, was published by Pardessus in the second volume of hisCollection des lois maritimes(Paris, 1834), under the title of “La Compilation connue sous le nom de consulat de la mer.” See introduction, by Sir Travers Twiss, to theBlack Book of the Admiralty(London, 1874), which in the appendix to vol. iii. contains his translation of “The Customs of the Sea,” with the Catalan text.
(T. T.)
CONSUMPTION(Lat.consumere), literally, the act of consuming or destroying. Thus the word is popularly applied to phthisis, a “wasting away” of the lungs due totuberculosis(q.v.). In economics the word has a special significance as a technical term. It has been defined as the destruction of utilities, and thus opposed to “production,” which is the creation of utilities, a utility in this connexion being anything which satisfies a desire or serves a purpose. Consumption may be either productive or unproductive; productive where it is a means directly or indirectly to the satisfaction of any economic want, unproductive when it is devoted to pleasures or luxuries. Its place in the science of economics, and its close relation with production, are treated of in every text-book, but special reference may be made to W. Roscher,Nationalökonomie, 1883, and G. Schönberg,Handbuch d. polit. Ökonomie, 1890-1891.
CONSUS,an ancient Italian deity, originally a god of agriculture. The time at which his festival was held (after harvest and seed-sowing), the nature of its ceremonies and amusements, his altar at the end of the Circus Maximus always covered with earth except on such occasions, all point to his connexion with the earth. In accordance with this, the name has been derived fromcondere(= Condius, as the “keeper” of grain or the “hidden” god, whose life-producing influence works in the depths of the earth). Another etymology is fromconserere(“sow,” cf. Ops Consiva and her festival Opiconsivia). Amongst the ancients (Livy i. 9; Dion. Halic. ii. 31) Census was most commonly identified withΠοσειδῶν ῞Ιππιος(Neptunus Equester), and in later Latin poets Consus is used for Neptunus, but this idea was due to the horse and chariot races which took place at his festival; otherwise, the two deities have nothing in common. According to another view, he was the god of good counsel, who was said to have “advised” Romulus to carry off the Sabine women (Ovid,Fasti, iii. 199) when they visited Rome for the first celebration of his festival (Consualia). In later times, with the introduction of Greek gods into the Roman theological system, Consus, who had never been the object of special reverence, sank to the level of a secondary deity, whose character was rather abstract and intellectual.
His festival was celebrated on the of August and the 15th of December. On the former date, the flamen Quirinalis, assisted by the vestals, offered sacrifice, and the pontifices presided at horse and chariot races in the circus. It was a day of public rejoicing; all kinds of rustic amusements took place, amongst them running on ox-hides rubbed with oil (like the Gr.ἀσκολιασμός). Horses and mules, crowned with garlands, were given rest from work. A special feature of the games in the circus was chariot racing, in which mules, as the oldest draught beasts, took the place of horses. The origin of these games was generally attributed to Romulus; but by some they were considered an imitation of the Arcadianἱπποκράτειαintroduced by Evander. There was a sanctuary of Consus on the Aventine, dedicated by L. Papirius Cursor in 272, in early times wrongly identified with the altar in the circus.
See W. W. Fowler,The Roman Festivals(1899); G. Wissowa,Religion und Kultus der Römer(1902); Preller-Jordan,Römische Mythologie(1881).
See W. W. Fowler,The Roman Festivals(1899); G. Wissowa,Religion und Kultus der Römer(1902); Preller-Jordan,Römische Mythologie(1881).
CONTANGO,a Stock Exchange term for the rate of interest paid by a “bull” who has bought stock for the rise and does not intend to pay for it when the Settlement arrives. He arranges to carry over or continue his bargain, and does so by entering into a fresh bargain with his seller, or some other party,by which he sells the stock for the Settlement and buys it again for the next, the price at which the bargain is entered being called the making-up price. The rate that he pays for this accommodation, which amounts to borrowing the money involved until the next Settlement, is called the contango.
CONTARINI,the name of a distinguished Venetian family, who gave to the republic eight doges and many other eminent citizens. The story of their descent from the Roman family of Cotta, appointed prefects of the Reno valley (whence Cotta Reni or Conti del Reno), is probably a legend. One Mario Contarini was among the twelve electors of the doge Paulo Lucio Anafesto in 697. Domenico Contarini, elected doge in 1043, subjugated rebellious Dalmatia and recaptured Grado from the patriarch of Aquileia. He died in 1070. Jacopo was doge from 1275 to 1280. Andrea was elected doge in 1367, and during his reign the war of Chioggia took place (1380); he was the first to melt down his plate and mortgage his property for the benefit of the state. Other Contarini doges were: Francesco (1623-1624), Niccolò (1630-1631), who built the church of the Salute, Carlo (1655-1656), during whose reign the Venetians gained the naval victory of the Dardanelles, Domenico (1659-1675) and Alvise (1676-1684). There were at one time no less than eighteen branches of the family; one of the most important was that of Contarini dallo Zaffo or di Giaffa, who had been invested with the countship of Jaffa in Syria for their services to Caterina Cornaro, queen of Cyprus; another was that of Contarini degli Scrigni (of the coffers), so called on account of their great wealth. Many members of the family distinguished themselves in the service of the republic, in the wars against the Turks, and no less than seven Contarini fought at Lepanto. One Andrea Contarini was beheaded in 1430 for having wounded the dogeFrancesco Foscari(q.v.) on the nose. Other members of the house were famous as merchants, prelates and men of letters; among these we may mention Cardinal Gasparo Contarini (1483-1542), and Marco Contarini (1631-1689), who was celebrated as a patron of music and collected at his villa of Piazzola a large number of valuable musical MSS., now in the Marciana library at Venice. The family owned many palaces in various parts of Venice, and several streets still bear its name.
See J. Fontana, “Sulla patrizia famiglia Contarini,” inIl Gondoliere(1843).
(L. V.*)
CONTAT, LOUISE FRANÇOISE(1760-1813), French actress, made herdébutat the Comédie Française in 1766 as Atalide inBajazet. It was in comedy, however, that she made her first success, as Suzanne in Beaumarchais’sMariage de Figaro; and in several minor character parts, which she raised to the first importance, and as the soubrette in the plays of Molière and Marivaux, she found opportunities exactly fitted to her talents. She retired in 1809 and married de Parny, nephew of the poet. Her sister Marie Émilie Contat (1769-1846), an admirable soubrette, especially as the pert servant drawn by Molière and de Regnard, made herdébutin 1784, and retired in 1815.
CONTE,literally a “story,” derived from the Fr.conter, to narrate, through low Lat. and Provençal formscontareandcomtar. This word, although not recognized by theNew English Dictionaryas an English term, is yet so frequently used in English literary criticisms that some definition of it seems to be demanded. Aconte, in French, differs from arécitor arapportin the element of style; it may be described as an anecdote told with deliberate art, and in this introduction of art lies its peculiar literary value. According to Littré, there is no fundamental difference between aconteand aroman, and all that can be said is that theconteis the generic term, covering long stories and short alike, whereas theroman(or novel) must extend to a certain length. But if this is the primitive and correct signification of the word, it is certain that modern criticism thinks of aconteessentially as a short story, and as a short story exclusively occupied in illustrating one set of ideas or one disposition of character. As early as the 13th century, the word is used in French literature to describe an anecdote thus briefly and artistically told, in prose or verse. The fairy-tales of Perrault and the apologues of La Fontaine were alike spoken of ascontes, and stories of peculiar extravagance were known ascontes bleus, because they were issued to the common public in coarse blue paper covers. The most famouscontesin the 18th century were those of Voltaire, who has been described as having invented theconte philosophique. But those brilliant stories,Candide,Zadig,L’Ingénu,La Princess de BabyloneandLe Taureau blanc, are not, in the modern sense,contesat all. The longer of these areromans, the shorternouvelles, not one has the anecdotical unity required by aconte. The same may be said of those of Marmontel, and of the insipid imitations of Oriental fancy which were so popular at the close of the 18th century. The most perfect recent writer ofcontesis certainly Guy de Maupassant, and his celebrated anecdote called “Boule de suif” may be taken as an absolutely perfect example of this class of literature, the precise limitations of which it is difficult to define.
(E. G.)
CONTÉ, NICOLAS JACQUES(1755-1805), French mechanical genius, chemist and painter, was born at Aunou-sur-Orne, near Sées, on the 4th of August 1755, of a family of poor farm labourers. At the age of fourteen he displayed precocious artistic talent in a series of religious panels, remarkably fine in colour and composition, for the principal hospital of Sées, where he was employed to help the gardener. With the advice of Greuze he took up portrait painting, quickly became the fashion, and laid by in a few years a fair competency. From that time he gave free rein to his passion for the mechanical arts and scientific studies. He attended the lectures of J. A. C. Charles, L. N. Vaquelin and J. B. Leroy, and exhibited before the Academy of Science an hydraulic machine of his own invention of which the model was the subject of a flattering report, and was placed in Charles’s collection. The events of the Revolution soon gave him an opportunity for a further display of his inventive faculty. The war with England deprived France of plumbago; he substituted for it an artificial substance obtained from a mixture of graphite and clay, and took out a patent in 1795 for the form of pencil which still bears his name. At this time he was associated with Monge and Berthollet in experiments in connexion with the inflation of military balloons, was conducting the school for that department of the engineer corps at Meudon, was perfecting the methods of producing hydrogen in quantity, and was appointed (1796) by the Directory to the command of all the aerostatic establishments. He was at the head of the newly created Conservatoire des arts et métiers, and occupied himself with experiments in new compositions of permanent colours, and in 1798 constructed a metal-covered barometer for measuring comparative heights, by observing the weight of mercury issuing from the tube. Summoned by Bonaparte to take part as chief of the aerostatic corps in the expedition to Egypt, he considerably extended his field of activity, and for three years and a half was, to quote Berthollet, “the soul of the colony.” The disaster of Aboukir and the revolt of Cairo had caused the loss of the greater part of the instruments and munitions taken out by the French. Conté, who, as Monge says, “had every science in his head and every art in his hands,” and whom the First Consul described as “good at everything,” seemed to be everywhere at once and triumphed over apparently insurmountable difficulties. He made, in an almost uncivilized country, utensils, tools and machinery of every sort from simple windmills to stamps for minting coin. Thanks to his activity and genius, the expedition was provided with bread, cloth, arms and munitions of war; the engineers with the exact tools of their trade; the surgeons with operating instruments. He made the designs, built the models, organized and supervised the manufacture, and seemed to be able to invent immediately anything required. On his return to France in 1802 he was commissioned by the minister of the interior, Chaptal, to superintend the publication of the great work of the commission on Egypt, and an engraving machine of his construction materially shortened this task, which, however, he did not live to see finished. He died at Paris on the 6th of December 1805. Napoleon had included him in his first promotions to the Legion of Honour. A bronze statue was erected to his memory in 1852 at Sées, by public subscription.
CONTEMPT OF COURT,in English law, any disobedience or disrespect to the authority or privileges of a legislative body, or interference with the administration of a court of justice.
1.The High Court of Parliament.Each of the two houses of Parliament has by the law and custom of parliament power to protect its freedom, dignity and authority against insult, disregard or violence by resort to its own process and not to ordinary courts of law and without having its process interfered with by those courts. The nature and limits of this authority to punish for contempt have been the subject of not infrequent conflict with the courts of law, from the time when Lord Chief Justice Holt threatened to commit the speaker for attempting to stop the trial ofAshbyv.White(1701), as a breach of privilege, to the cases ofBurdettv.Abbott(1810),Stockdalev.HansardandHowardv.Gosset(1842, 1843), andBradlaughv.Gosset(1834). It is now the accepted view that the power of either House to punish contempt is exceptional and derived from ancient usage, and does not flow from their being courts of record. Orders for committal by the Commons are effectual only while the House sits; orders by the Lords may be for a time specified, in which event prorogation does not operate as a discharge of the offender. It was at one time considered that the privilege of committing for contempt was inherent in every deliberative body invested with authority by the constitution, and consequently that colonial legislative bodies had by the nature of their functions the power to commit for contempt. But inKielleyv.Carson(1843; 4 Moore, P.C. 63) it was held that the power belonged to parliament by ancient usage only and not on the theory above stated, and in each colony it is necessary to inquire how far the colonial legislature has acquired, by order in council or charter or from the imperial legislature, power to punish breach of privilege by imprisonment or committal for contempt. This power has in some cases been given directly, in others by authority to make laws and regulations under sanctions like those enforced by the Houses of the imperial parliament. In the case of Nova Scotia the provincial assembly has power to give itself by statute authority to commit for contempt (Fieldingv.Thomas, 1896; L.R.A.C. 600). InBartonv.Taylor(1886; 11 A.C. 197) the competence of the legislative assembly of New South Wales to make standing orders punishing contempt was recognized to exist under the colonial constitution, but the particular standing orders under consideration are held not to cover the acts which had been punished. (See May,Parl. Pr., 10th ed., 1896; Anson,Law and Custom of the Constitution, 3rd ed., 1897.)
2.Courts of Justice.The term contempt of court, when used with reference to the courts or persons to whom the exercise of the judicial functions of the crown has been delegated, means insult offered to such court or person by deliberate defiance of its authority, disobedience to its orders, interruption of its proceedings or interference with the due course of justice, or any conduct calculated or tending to bring the authority or administration of the law into disrespect or disregard, or to interfere with or prejudice parties or witnesses during the litigation. The ingenuity of the judges and of those who are concerned to defeat or defy justice have rendered contempt almost Protean in its character. But for practical purposes most, if not all, contempts fall within the classification which follows:—
(a) Disobedience to the judgment or order of a court commanding the doing or abstaining from a particular act, e.g. an order to execute a conveyance of property or an order on a person in a fiduciary capacity to pay into court trust moneys as to which he is an accounting party. This includes disobedience by the members of a local authority to amandamusto do some act which they are by law bound to do; and proceedings for contempt have been taken in the case of guardians of the poor who have refused to enforce the Vaccination Acts, e.g. at Keighley and Leicester, and of town councillors who have refused to comply with an order to take specified measures to drain their borough (e.g. Worcester). This process for compelling obedience is in substance a process of civil execution for the benefit of the injured party rather than a criminal process for punishing the disobedience; and for purposes of appeal orders dealing with these forms of contempt have hitherto been treated as civil proceedings.
(b) Disobedience by inferior judges or magistrates to the lawful order of a superior court. Such disobedience, if amounting to wilful misconduct, would usually give ground for amotion or removal from office, or for prosecution or indictment or information for misconduct (Archbold,Criminal Pleading, 147, 23rd ed.).
(c) Disobedience or misconduct by executive officers of the law, e.g. sheriffs and their bailiffs or gaolers. The contempt consists in not complying with the terms of writs or warrants sent for execution. For instance, a judge of assize having ordered the court to be cleared on account of some disturbance, the high sheriff issued a placard protesting against “this unlawful proceeding,” and “prohibiting his officer from aiding and abetting any attempt to bar out the public from free access to the court.” The lord chief justice of England, sitting in the other court, summoned the sheriff before him and fined him £500 for the contempt, and £500 more for persisting in addressing the grand jury in court, after he had been ordered to desist. A sheriff who fails to attend the assizes is liable to severe fine as being in contempt (Oswald, 51). And in Harvey’s case (1884, 26 Ch. D. 644) steps were taken to attach a sheriff who had failed to execute a writ of attachment for contempt of court in the mistaken belief that he was not entitled to break open doors to take the person in contempt. The Sheriffs Act 1887 enumerates many instances in which misconduct is punishable under that act, but reserves to superior courts of record power to deal with such misconduct as a contempt (s. 29).
(d) Misconduct or neglect of duty by subordinate officials of courts of justice, including solicitors. In these cases it is more usual for the superior authorities to remove the offender from office, or for disciplinary proceedings to be instituted by the Law Society. But in the case of an unqualified person assuming to act as a solicitor or in the case of breach of an undertaking given by a solicitor to the court, proceedings for contempt are still taken.
(e) Misconduct by parties, jurors or witnesses. Jurors who fail to attend in obedience to a jury summons and witnesses who fail to attend on subpoena are liable to punishment for contempt, and parties, counsel or solicitors who practise a fraud on the court are similarly liable.
(f) Contempt infacie curiae. “Some contempts,” says Blackstone, “may arise in the face of the court, as by rude and contumelious behaviour, by obstinacy, perverseness or prevarication, by breach of the peace, or any wilful disturbance whatever”; in other words, direct insult to or interference with a sitting court is treated as contempt of the court. It is immaterial whether the offender is juror, party, witness, counsel, solicitor or a stranger to the case at hearing, and occasionally it is found necessary to punish for contempt persons under trial for felony or misdemeanour if by violent language or conduct they interrupt the proceedings at their trial. Judges have even treated as contempt the continuance outside the court-house after warning of a noise sufficient to disturb the proceedings of the court; and in Victoria Chief Justice Higginbotham committed for contempt a builder who persisted after warning in building operations close to the central criminal court in Melbourne, which interfered with the due conduct of the business of the sittings.
(g) Attempts to prevent or interfere with the due course of justice, whether made by a person interested in a particular case or by an outsider. This branch of contempt takes many forms, such as frauds on the court by justices, solicitors or counsel (e.g. by fraudulently circularizing shareholders of a company against which a winding-up petition had been filed), tampering with witnesses by inducing them through threats or persuasion not to attend or to withhold evidence or to commit perjury, threatening judge or jury or attempting to bribe them and the like; and also by “scandalizing the court itself” by abusingthe parties concerned in a pending case, or by creating prejudice against such persons before their cause is heard.
Thelocus classicuson the subject of contempt by attacks on judges is a judgment prepared by Sir Eardley-Wilmot in the case of an application for an attachment againstInvectives against judges.J. Almon in 1765, for publishing a pamphlet libelling the court of king’s bench. The judgment was not actually delivered as the case was settled, but has long been accepted as correctly stating the law. Sir Eardley-Wilmot said that the offence of libelling judges in their judicial capacity is the most proper case for an attachment, for the “arraignment of the justice of the judges is arraigning the king’s justice; it is an impeachment of his wisdom and goodness in the choice of his judges; and excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them. To be impartial, andto be universally thoughtso, are both absolutely necessary for the giving justice that free, open and uninterrupted current which it has for many ages found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth.” Again, “the constitution has provided very apt and proper remedies for correcting and rectifying the involuntary mistakes of judges, and for punishing and removing them for any perversion of justice. But if their authority is to be trampled on by pamphleteers and news-writers, and the people are to be told that the power given to the judges for their protection is prostituted to their destruction, the court may retain its power some little time, but I am sure it will eventually lose all its authority.”
The object of the discipline enforced by the court by proceedings for contempt of court is not now, if it ever was, to vindicate the personal dignity of the judges or to protect them from insult as individuals, but to vindicate the dignity and authority of the court itself and to prevent acts tending to obstruct the due course of justice. The question whether a personal invective against judges should be dealt withbrevi manuby the court attacked, or by proceedings at the instance of the attorney-general by information or indictment for a libel on the administration of justice or on the judge attacked, or should be dealt with by a civil action for damages, depends on the nature and occasion of the attack on the judge.
There has at times been a disposition by judges in colonial courts to use the process of the court to punish criticisms on their acts by counsel or parties or even outsiders, which the privy council has been prone to discourage. For instance in a Nova Scotia case a barrister was suspended from practice for writing to the chief justice of the province a letter relating to a case in which the barrister was suitor. The privy council while considering the letter technically a contempt, held the punishment inappropriate. InMacleodv.St Aubyn(1899, A.C. 549) it was said that proceedings for scandalizing the court itself were obsolete in England. But in 1900 the king’s bench division, following the Almon case, summarily punished a scurrilous personal attack on a judge of assize with reference to his remarks in a concluded ease, published immediately after the conclusion of the case (R.v.Gray, 1900, 2 Q.B. 36). The same measure may be meted out to those who publish invectives against judges or juries with the object of creating suspicion or contempt as to the administration of justice. But the existence of this power does not militate against the right of the press to publish full reports of trials and judgments or to make with fairness, good faith, candour and decency, comments and criticisms on what passed at the trial and on the correctness of the verdict or the judgment. To impute corruption is said to go beyond the limits of fair criticism. Shortt (Law relating to Works of Literature) states the law to be that the temperate and respectful discussion of judicial determination is not prohibited, but mere invective and abuse, and still more the imputation of false, corrupt and dishonest motives is punishable. In an information granted in 1788 against the corporation of Yarmouth for having entered upon their books an order “stating that the assembly were sensible that Mr W. (against whom an action had been brought for malicious prosecution, and a verdict for £3000 returned, which the court refused to disturb) was actuated by motives of public justice, of preserving the rights of the corporation to their admiralty jurisdiction, and of supporting the honour and credit of the chief magistrate,” Mr Justice Butler said, “The judge and jury who tried the case, confirmed by the court of common pleas, have said that instead of his having been actuated by motives of public justice, or by any motives which should influence the actions of an honest man, he had been actuated by malice. These opinions are not reconcilable; if the one be right the other must be wrong. It is therefore a direct insinuation that the court had judged wrong in all they have done in this case, and is therefore clearly a libel on the administration of justice.”
The exact limits of the power to punish for contempt of court in respect of statements or comments on the action of judges and juries, or with reference topendingproceedings, have been the subject of some controversy, owing to the difficulty of reconciling the claims of the press to liberty and of the public to free discussion of the proceedings of courts of justice with the claims of the judges to due respect and of the parties to litigation that their causes should not be prejudiced before trial by outside interference. As the law now stands it is permissible to publish contemporaneousreportsof the proceedings in cases pending in any court (Law of Libel Amendment Act 1888, s. 3), unless the proceedings have taken place in private (in camera), or the court has in the interests of justice prohibited any report until the case is concluded, a course now rarely, if ever, adopted. But it is not permissible to make any comments on a pending case calculated to interfere with the due course of justice in the case, nor to publish statements about the cause or the parties calculated to have that effect. This rule applies even when the case has been tried and the jury has disagreed if a second trial is in prospect. Applications are frequently made to commit proprietors and editors who comment too freely or who undertake the task of trying in their newspapers a pending case. The courts are now slow to move unless satisfied that the statements or comments may seriously affect the course of justice, e.g. by reaching the jurors who have to try the case.
The difference between pending and decided cases has been frequently recognized by the courts. What would be a fair comment in a decided case may tend to influence the mind of the judge or the jury in a case waiting to be heard, and will accordingly be punished as a contempt. InTichbornev.Mostynthe publisher of a newspaper was held to have committed a contempt by printing in his paper extracts from affidavits in a pending suit, with comments upon them. In the case ofR.v.Castroit was held that after a true bill has been found, and the indictment removed into the court of queen’s bench, and a day fixed for trial, the case was pending; and it was a contempt of court to address public meetings, alleging that the defendant was not guilty, that there was a conspiracy against the defendant, and that he could not have a fair trial; and the court ordered the parties to answer for their contempt. In the case of the Moat Farm murder (1903) the high court punished as contempt a series of articles published in a newspaper while the preliminary inquiry was proceeding and before the case went to a jury (R.v.Parker, 1903, 2 K.B. 432). The like course was followed in 1905 in the case of statements made in a Welsh newspaper about a woman awaiting trial for attempted murder (R.v.Davies, 1906, 1 K.B. 32); and in the case of theWeekly Dispatchin 1902 (R.v.Tibbits and Windust, 1 K.B. 77), two journalists were tried on indictment, and held to have been rightly convicted, for conspiring to prevent the course of justice by publishing matter calculated to interfere with the fair trial of persons who were under accusation.
“In the superior courts the power of committing for contempt is inherent in their constitution, has been coeval with their original institution and has been always exercised”Courts having jurisdiction.(Oswald,On Contempt, 3). The high court in which these courts are merged is the only court which has a general jurisdiction to deal summarily with all forms of contempt. Each division of that court deals withthe particular contempts arising with reference to proceedings before the division; but the king’s bench division, in the exercise of the supervisory authority inherited from the old court of king’s bench ascustos morum, also from time to time deals with acts constituting interference with justice in other inferior courts whether of record or not. The nature and limits of this jurisdiction after much discussion have been defined by decisions in 1903 and 1905 in attempts to try by newspapers cases under inquiry by justices or awaiting trial at assizes or quarter sessions. The exercise of this authority in the king’s bench division, being in a criminal cause or matter, is not the subject of appeal to any higher court.
Inferior courts of record have, as a general rule, power to punish only those contempts which are committedin facie curiaeor consist in disobedience to the lawful orders or judgments of the court. For instance, a county court may summarily punish persons who insult the judge or any officer of the court or any juror or witness, or wilfully interrupt the proceedings, or misbehave in the court-house (County Court Act 1888, s. 162), and may also attack persons who having means refuse to comply with an order to pay money, or refuse to comply with an order to deliver up a specific chattel or disobey an injunction. A court of quarter sessions has at common law a like power as to contemptsin facie curiaeand is said to have power to punish its officials for contempt in non-attendance or neglect of duty.
Contempt of court is a misdemeanour and is punishable by fine and imprisonment or either at discretion. The offence may be tried summarily, or may be prosecuted on informationPunishment.or on indictment as was done in the case of theWeekly Dispatchalready mentioned. The prerogative of pardon extends to all contempts of court which are dealt with by a sentence of clearly punitive character; but it is doubtful whether it extends to committals for disobedience to orders made in aid of the execution of a civil judgment.
Contempt is usually dealt with summarily by the court contemned in the case of contemptin facie curiae. The offender may be instantly apprehended and without further proof or examination fined or sent to prison. In the case of other contempts the High Court not only can deal with contempts affecting itself, but can also intervene summarily to protect inferior courts from contempts. This jurisdiction was asserted and exercised in the Moat Farm case (1903) and theSouth Wales Postcase (1905) already mentioned.
Except in cases of contemptin facie curiaeevidence on oath as to the alleged contempt must be laid before the court, and application made for the “committal” or “attachment” of the offender. The differences between the two modes are technical rather than substantial.
The procedure for dealing with contempt of court varies somewhat according as the contempt consists in disobeying an order of the High Court made in a civil cause, or consists in interference with the course of justice by persons not present in court nor parties to the cause. In the first class of cases the court proceeds by order of committal or giving leave to issue writ of attachment. In either case the person said to be in contempt must have full notice of the proposed motion and of the grounds on which he is said to be in contempt; and the rules regulating such proceedings must be strictly complied with (R.v.Tuck, 1906, 2 Ch. 692). In proceedings on the crown side of the king’s bench division it is still usual to apply in the first place for a rule nisi for leave to attach the alleged offender who is given an opportunity of explaining, excusing or justifying the incriminated acts. It is essential that before punishment the alleged offender should have had full notice as to the specific offence charged and opportunity of answering to it. The king’s bench procedure is that generally used for interference with the due course of criminal justice or disobedience to prerogative writs such asmandamus.
An order of committal is an order in execution specifying the nature of the detention to be suffered, or the penalty to be paid. The process of attachment merely brings the accused into court; he is then required to answer on oath interrogatories administered to him, so that the court may be better informed of the circumstances of the contempt. If he can clear himself on oath he is discharged; if he confesses the court will punish him by fine or imprisonment, or both, at its discretion. But in very many cases on proper apology and submission, and undertaking not to repeat the contempt, and payment of costs, the court allows the proceedings to drop without proceeding to fine or imprison.
From time to time proposals have been made to deprive the superior courts of the power to deal summarily with contempts not committedin facie curiae, and to require proceedings on other charges for contempt to go before a jury. This distinction has already been made in some British colonies, e.g. British Guiana, by an ordinance of 1900 (No. 31). Recent decisions in England have so fully defined the limits of the offence and declared the practice of the courts that it would probably only result in undue licence of the press if the power now carefully and judicially exercised of dealing summarily with journalistic interference with the ordinary course of justice were taken away and the delay involved in submitting the case to a jury were made inevitable. The courts now only act in clear cases, and in cases of doubt can always send the question to a jury. The experience of other countries makes it undesirable to part with the summary remedy so long as it is in the hands of a trusted judicature.