ferred upon it. If any alteration in the statutes is required, it may of course be made by the legislature; or if the college choose to receive a new charter, they may resign the charter at present existing, and in the new charter which they receive, may accept the new statutes, which may be required. Thus the Sovereign, in concurrence either with the college, or else with the other branches of the legislature, may always make the necessary improvements.

If this statement of the law is correct, it produces an important consideration in those cases in which a power of making alterations is conferred by the statutes upon the college, or upon any portion of its members. The founder must be supposed to know, that when the charter is granted at his request, his college will possess the powers usually inherent in such a body; and, amongst other powers, that of making bye-laws. If, then, with this knowledge, he adds a special power of legislation, he must intend something more than that usual power: the legislation, which he intends, must exceed the making of bye-laws, which are in their nature limited to a perfect consistency with the original statutes. Much must of course depend upon the expressions in which this power is couched; but we submit the general presumption in such cases to be, that the college shall have the power of making alterations even in the original statutes. The special power is sometimes given not to the entire body of the college, but exclusively to a portion of its members. Here again a new question arises, whether the terms used are sufficient to deprive the body of the college of their power to make bye-laws; in other words, whether the power specially conferred is merely a substitute for the common-law power of a corporation, or a cumulative authority, one which, without interfering with the common-law power, adds a power of innovation upon the original statutes. Questions of this nature will arise in different shapes, according to the terms of different foundations. We allude to them in this place, with a view to draw attention to their general character. The legislative power of the college, or of a part of it, throws fresh and more difficult responsibility upon the visitor. With respect to the original statutes, he has to decide merely whether they are duly carried into effect. His decision upon a bye-law or new statute may go further. He may be compelled, as the Court of King's Bench is often compelled with

respect to municipal corporations, to decide whether a byelaw is a good bye-law, or whether a statute passed comes within the authority to enact statutes which is possessed by the college. The visitor will then exercise an authority not unlike that of the judges in North America, who decide whether a new law is consistent with the constitution. In the discharge of such a duty, there is a danger of a decision being given rather upon legislative than judicial principles. The visitor may think the new law a bad one. He may wish to prevent it from being enacted. Still if it is a law coming within the legislative power of the college, he is bound to carry it into execution. The security that he will not exceed his powers in this respect is simply his own personal honour. There is no appeal to a higher court; no appeal even to public opinion. The security rests entirely upon the control of his own conscience, and upon the degree in which he feels the obligation of his office not to exceed his own peculiar functions, nor cripple the exercise of discretion, which the rules of common law, or the directions of the founder, have required from the members of the college.

ART. II.-JURISDICTION OF THE COMMISSIONERS OF THE COURT OF BANKRUPTCY IN CASES OF CONTEMPT.

A Letter addressed to the Lord Viscount Melbourne, relative to the Jurisdiction of that Court in Cases of Contempt. By C. Fane, Esq. one of the Commissioners of her Majesty's Court of Bankruptcy. London. Sweet. 1837. MR. FANE'S pamphlet, as many of our readers are probably aware, was produced in consequence of the decision of the Court of Exchequer in the case of the King against Faulkner, (reported in 2 Montagu and Ayrton's Cases in Bankruptcy). Mr. Fane, as a Commissioner of Bankrupt, had fined a solicitor practising before him for an alleged contempt in addressing a letter to him respecting matters then at issue in his Court. The solicitor paid the fine into the Exchequer, and then moved the Court that the money might be returned to him, on the ground that a Commissioner of Bankrupt, sitting alone, had no power to fine in such a case. The Court decided in favour of the defendant; and the substance of their

Jurisdiction of the Court of Bankruptcy.

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decision was a denial of the power of a single Commissioner to punish any contempt at all. Mr. Fane takes in his pamphlet exceptions to this decision, both on legal grounds and also on account of the extreme inconvenience which he alleges to result to the public from the want of such power on the part of the Commissioner.

We have refrained from taking notice of his pamphlet until the practical question has been set at rest for the present by a recent enactment (5 & 6 Will. IV. c. 25, of which we shall have occasion to speak presently). Nor is it our intention, by commenting on the particular case which gave rise to the discussion, to revive painful feelings, which, we would fain hope, have by this time subsided, or aggravate any soreness which may still exist. But having on a recent occasion taken some liberties in commenting on various other alleged grievances of the Commissioners, we feel it the more a duty to state fairly the strong case which they have made for themselves as to this question of jurisdiction. And Mr. Fane, in arguing that case, has taken occasion to set both the established principles, and the existing anomalies, of the law or rather practice relating to contempts, in a clearer light than has usually been done. For there is no subject on which judges have in general shown more reluctance to lay down decided rules, either positive or negative, actuated, on the one hand, by the fear of acknowledging powers inconveniently great in inferior functionaries: and, on the other, of diminishing the efficiency of tribunals by restricting their authority. We shall, therefore, begin by extracting the substance of Mr. Fane's pamphlet, as far as it treats of the general subject, and add a few remarks of our own.

"It is laid down by Mr. Justice Blackstone, in his Commentaries, as a fundamental principle,1 that all the king's superior courts of justice have power to punish contempts; and then, after giving several instances of contempts, he proceeds to observe, that the power must necessarily be as ancient as the laws themselves. 6 Laws,' he says, 'without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power, therefore, in the supreme courts of justice to repress contempts, results from the first principles of judicial

1 B. 4, c. 20, s. 3. See also iv. c. 9, s. 5, and particularly p. 126. VOL. XIX.

T

establishments, and must be an inseparable attendant upon every superior tribunal,' He then adds, and though a very learned author seems inclinable to derive this power from the Statute of Westminster, yet that learned author (Mr. Baron Gilbert) afterwards more justly concludes, that it is a part of the law of the land. Mr. Justice Blackstone then lays it down, that this power is part of the common law, and not derived from any statute.

"In like manner it is laid down in Hawkins's Pleas of the Crown,' a work of great learning and authority, under title, Of Contempts against the King's Courts." That he who makes an affray in any of the king's inferior Courts of justice is highly fineable; and that he who speaks contemptuous and reproachful words to the judge of such a Court, in the execution of his office—as if one give the lie to a judge of a Court-leet, in the face of the Court; or, being admonished by him to pull off his hat, say, I do not value what you do; or tell him in the face of the Court that he is forsworn, or call him fool, &c. or say, if I cannot have justice here, I will have it elsewhere; such person is immediately fineable by such judge.' Here again the existence of this power is attributed, not to the provisions of any statute, but to the great principles of the common law.

"In a case mentioned in Croke's Reports, where the 2 mayor of Barnstable had imprisoned a man for speaking contemptuously of him in common conversation, and the legality of the commitment was called in question in the King's Bench, although the judges declared such commitment illegal, yet they held, that if the mayor had been in a public place of justice, and the party had called him by such opprobrious words there, he might have imprisoned him. In another case, in the same book, where the steward of a Courtleet had imposed a fine upon a man for saying to him, in his Court,

In saying so thou liest,' it was held by the judges that the steward had the right to impose the fine, and the party fined was compelled to pay it.3

5

"The same doctrine is again repeated in Hawkins's Pleas of the Crown, where the author speaks of the Sheriff's Court,* and again where he speaks of a Court-leet; and in those cases he attributes the power to the sheriff's steward," or the lord's steward,' who are the judges of those Courts.

1 Book i. c. 21, ss. 10, 11.

2 Simons v. Sweet, Cro. Eliz. 78.

3 The Earl of Lincoln v. Fysher, Cro. Eliz. 581.

4 Book ii. c. 10, s. 15.

6 Book ii. c. 10, introduction to s. 13.

5 Book ii. c. 11.

7 Book ii. c. 11, s. 5. And see B. Comm. iv. c. 9, s. 5, p. 126.

"It did not appear, from any of these authorities, that this power was possessed by Courts as Courts of Record; it was attributed to them as Courts of Justice. The expression in Blackstone, in Hawkins, and in the Mayor of Barstaple's case, is Courts of Justice, not Courts of Record, and accordingly we find that the Chancellor and Master of the Rolls, who, while sitting as judges of equity, are confessedly not Courts of Record, have immemorially exercised the power of punishing contempts in a summary way. In the case of Burdett v. Abbott, questions were raised by Sir F. Burdett respecting the power of the House of Commons to commit for contempt; of course their power to commit was held to be indisputable; but Mr. Justice Bayley,1 in his judgment, citing Lord Coke, attributed their possession of this power, not to the circumstance of their being a Court of Record, but to that of their being a Court of Judicature."

To these authorities Mr. Fane adds in a subsequent note the following:

Rex v. Langley, Salkeld, 697. By the Court.—When improper words are spoken of a magistrate in Court, the magistrate may proceed summarily against the party, and fine him for the contempt.

Rex v. Revel, 1 Strange, 420. A person was indicted for speaking disrespectfully to a justice of peace whilst in the execution of his office. It was objected that the indictment lay not. The Court said, it is true the justice may make himself judge, and punish immediately; but still, if he thinks proper to proceed less summarily by way of indictment, he may.

Mayhew v. Locke, 7 Taunton, 63. The plaintiff, being a constable, said to a magistrate, if you have any more warrants to serve, do not send them to me, for I will not serve them, you may serve them yourself. The magistrate committed him by a verbal order only. An action being brought for false imprisonment, it was contended for the defendant, that he was warranted as a magistrate in committing the plaintiff to prison for the contempt of which he had been guilty. Mr. Justice Bayley reserved the point. When the matter came before the Court, Gibbs, C. J. expressed himself as follows: "As to the merits, without considering whether the words.

2

1 14 East, 159.

Surely they are not. Mr. Fane is understating his own case.