Summary Contempt and Due Process: England, 1631, California, 1888

• Jurisdiction: California,United States
• Author: By Marc Alexander
• Citation: Vol. 27 No. 3
• Publication year: 2014

Summary Contempt and Due Process: England, 1631, California, 1888

By Marc Alexander

Terminating sanctions usually result from failure to answer a complaint or egregious discovery abuses, despite repeated admonitions from the court. There is, however, a dramatic example of contempt of court after which the misbehaving party himself was terminated, an example of "summary contempt" powers exercised with what was then considered due process within the rule of law. It took place in 1631 at the "high-water mark" of English judges' contempt powers.

"Richardson, Chief Justice of C.B. at the assizes at Salisbury in the summer of 1631 was assaulted by a prisoner condemned there for felony, who after his condemnation threw a brickbat at the said Judge, which narrowly missed; and for this an indictment was immediately drawn by Noy against the prisoner, and his right hand cut off and fixed to the gibbet, upon which he was immediately hanged in the presence of the Court." (73 Eng. Rep. 416 (1378-1865).)

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"Assizes" were the English criminal courts that heard the most serious cases. The gibbet was a scaffold for public executions. "[T]he brickbat, according to some reports, was a large flintstone." (Jeffrey Miller, Where There's Life, There's Lawsuits (ECW Press 2003), p. 238.) Mr. Miller also provides us with the flavor of some of the original legal "dog-French" found in the musty report: "upon being convicted of a felony a prisoner 'ject un Brickbat a le dit justice que narrowly mist.'" The Dictionary of National Biography informs us that Justice Richardson dryly remarked, "when by stooping low he had just avoided a missile aimed at him by a condemned felon, 'if I had been an upright judge I had been slain.'" (Id., 1885-1900, vol. 48, p. 248.)

In The Summary Power to Punish Contempt, 31 Colum. L. Rev. 956, 956 (1931), Walter Nelles, co-founder and first chief legal counsel for the National Civil Liberties Bureau and its successor, the ACLU, despaired "that the power to punish summarily for contempt of court is encroaching upon the once sacred 'right' of trial by jury in criminal cases." He argued forcefully for a limited use of summary contempt powers:

"When the serious criminality of a contempt is apparent, the most efficient prevention of its recurrence should naturally be by ordinary criminal prosecution; when that is untrue in fact, the summary power does disservice as an inadequate substitute for the correction of inadequacy." (Id. at pp. 966-967.)

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