MR. G. E. BARTON’S CASE.

New Zealand Times, Volume XXXIII, Issue 5267, 9 February 1878, Page 5 (Supplement)

MR. G. E. BARTON’S CASE.

(From the Lyttelton Times, February 4.) Those who remember the petition of Mr. George Elliot Barton, barrister, to the House of Representatives Just session, impeaching the conduct of Chief Justice I’rendergast and Mr. Justice Richmond, and who have since watched the proceedings in cases in which Mr. Barton has been engaged in the Supreme Court at ■Wellington, will not bo surprised at the recent account of his committal at last to prison for contempt. It has long been painfully apparent that there existed between Mr. Barton and the two Judges an incompatibility of temper which could only have, sooner or later, one result. And we are bound to state that, so far we are able to form an opinion, the responsibility for that result rests exclusively on Mr. Barton. He is an able lawyer and an accomplished man, and naturally amiable. But in a Court of Law an unaccountable change comes over him. He is there at once irritable and irritant. His forensic form bristles, as it were, with the quills of the fretful porcupine. He clothes himself with antagonism as with a garment. He seems to regard everyone who ventures to differ from him as a personal enemy, and he is eaoer to imagine a difference where none exists. Like the traditional Irishman at Dounybrook fair, whereever there is a head there is a shillelagh. When'his petition against tiie Judges was rejected by the House of Kepresentatives, he had a fair warning that he was making himself ridiculous. It would have been better, wa think, on public grounds connected with the ri"ht of petition, that the petition should have been allowed to lie on the table, but it was evident from the summary course then taken that a majority of the representatives of the people considered his petition ou its face frivolous and vexatious. The public accounts, which have since reached us, of sceues between himself and judicial authorities in the Courts, do not appear to ns to show that he has any ground of just complaint thathe is not fairly treated by those authorities. His prevalent idea of a judicial conspiracy to put him down seems to us to be the .mere creation of morbid imagination and inordinate selfesteem. While we think it right in the interests of public justice to make these remarks, we disclaim any feelings of ill-will towards Mr. Barton. We have a high respect for his leoal abilities and for his many estimable qualities ; and we trust that calm reflection will induce him in future to pursue a course which will enable him to do more justice to both But the question at issue is not merely a personal one ; it involves public considerations of paramount importance, the character of the Supreme Court and its jutlicial administration. > The immediate causes of Mr. Barton s committal for contempt are reported to have been, first, his almost direct charge of animus on the part of the Judges against himself; and secondly, his persistent interruption, after repeated orders to be silent, of the Judge in a delivery of judgment. A curious complication in connection with the a; two offences seems to have arisen. The first offence —and in our eyes the far more serious one—namely, the charge of injustice, was committed when the two Judges, the Chief Justice and Hr. Justice Richmond, were sitting as a Court of Appeal. A fine of fifty pounds ste ring was inflicted. After a short adjournment for lunch, the Chief Justice made the rather astounding revelation that the Court of Appeal had been illegally sitting, because it had not been formally adjourned on its last day of sitting. The fine, of course, had therefore also been illegally inflicted. The two Judges then sat in banco, and it was during such sitting that the second offence, the interruption, took place, and was visited by the sentence of one mouth’s imprisonment. There is no doubt that the latter offence was regarded—and, as we think, properly regarded—as cumulative and aggravatory, and that, therefore, a- severer sentence was necessary. Under all the circumstances, we see no reason to question its propriety. But we must incidentally observe that it seems rather strange that two Judges, including the Chief Justice, should have been sitting for half a day illegally as a Court of Appeal, and deciding cases in that capacity, and that this awkward fact should only have been incidentally discovered, because, we suppose, fining Mr. Earton sharpened judicial eyesight. We notice that one of the cases decided was the reiusal of an appeal to the Privy Council. By the way, we must say that such a refusal strikes ns primA facie as rather arbitrary, for, like most laymen, we.thought that every subject, if he were prepared to pay the cost, had a right to appeal from our Judges to the Queen in Privy Council. But suppose, as might have easily happened, that an appeal had been allowed, and that Mr. Barton s episode had not intervened as an eye-sharpener. In that case we pity the unfortunate client who, perhaps, after all the trouble and expense of going to the Privy Council, might have learned,"on his successful return, that all was law’s labor lost, because the Colonial Court had not been properly adjourned. Poor unpaid justices who committed such a blunder would probably have to pay heavy damages, but Judges of the Supreme Court have a special privilege of committing errors with immunity. Our Judges are not singular in what we may call lapsus hrjis. Quite lately, in the sensational case of the Rev. Mr, Tooth, Lord Penzance held his Court illegally, and the Court of Queen's Bench have upset all his proceedings. It was unfortunate that his Lordship was not blest with a Barton. Out of that nettle he might have plucked the flower safety.

There is no doubt that the power of committing for contempt is an arbitrary power. It places the Judge in the painful position of convicting and punishing an offence occasionally committed against himself personally. It is very rarely exercised, and we are not aware of a precedent in England for the committal of a barrister while engaged in a case. In the great Tichborne case in 1873, Mr. Shipworth, a barrister, was committed for attempt j but he had no professional connection with the case. His offence was for trying to excite public feeling at a public meeting against Chief Justice Cockbum, one of the Judges trying Tichborne. Mr. Justice Blackburn, another of those Judges, explained on that occasion that while the power of committing for contempt was necessary for the protection of the dignity of the Judge'’, from insult, it was rarely used for such a purpose j but that it was most necessary and most generally used, whenever used, to secure a fair trial, and to guard against the exercise of improper influence on cases in course of being heard. For that purpose of prevention summary jurisdiction is necessary. Lord Cottenham, whom he quoted, says:—“The power of summary committal is given to the Courts to secure the due administration of justice All the authorities lead to the same conclusion, that whenever the object is to taint the course of justice, and to obtain a result different from that which would follow in an ordinary course, it is a contempt, and although such an attempt has not had any effect, yet if such attempts were not punished, the most serious consequences would ensue.” It is obvious that if the precedent set by Mr. Barton were generally followed, the Courts of Law would become the scene of lingual and probably physical terrorism, and that the proper administration of justice would be rendered impossible.