In the Name of the Bodleian and Other Essays eBook

To pursue the subject further would be to plunge into the morasses of the law where there is no footing for the plain man; but just a word or two may be added on the subject of punishment for contempt.  In old days persons who were guilty of contempt in facie curiae had their right hands cut off, and Mr. Oswald prints as an appendix to his book certain clauses of an Act of Parliament of Henry VIII. which provide for the execution of this barbarous sentence, and also (it must be admitted) for the kindly after-treatment of the victim, who was to have a surgeon at hand to sear the stump, a sergeant of the poultry with a cock ready for the surgeon to wrap about the stump, a sergeant of the pantry with bread to eat, and a sergeant of the cellar with a pot of red wine to drink.

Nowadays the penalty for most contempts is costs.  The guilty party in order to purge his contempt has to pay all the costs of a motion to commit and attach.  The amount is not always inconsiderable, and when it is paid it would be idle to apply to the other side for a pot of red wine.  They would only laugh at you.  Our ancestors had a way of mitigating their atrocities which robs the latter of more than half their barbarity.  Costs are an unmitigable atrocity.

5 EDWARD VII., CHAPTER 12

The appearance of this undebated Act of Parliament in the attenuated volume of the Statutes of 1905 almost forces upon sensitive minds an unwelcome inquiry as to what is the attitude proper to be assumed by an emancipated but trained intelligence towards a decision of the House of Lords, sitting judicially as the highest (because the last) Court of Appeal.

So far as the parties to the litigation are concerned, the decision, if of a final character, puts an end to the lis.  Litigation must, so at least it has always been assumed, end somewhere, and in these realms it ends with the House of Lords.  Higher you cannot go, however litigiously minded.

In the vast majority of appeal cases a final appeal not only ends the lis, but determines once for all the rights of the parties to the subject-matter.  The successful litigant leaves the House of Lords quieted in his possession or restored to what he now knows to be his own, conscious of a victory, final and complete; whilst the unsuccessful litigant goes away exceeding sorrowful, knowing that his only possible revenge is to file his petition in bankruptcy.

This, however, is not always so.

In August, 1904, the House of Lords decided in a properly constituted lis that a particular ecclesiastical body in Scotland, somewhat reduced in numbers, but existent and militant, was entitled to certain property held in trust for the use and behoof of the Free Church of Scotland.  There is no other way of holding property than by a legal title.  Sometimes that title has been created by an Act of Parliament, and sometimes it is a title recognised by the general laws and customs of the realm, but a legal title it has got to be.  Titles are never matters of rhetoric, nor are they jure divino, or conferred in answer to prayer; they are strictly legal matters, and it is the very particular business of courts of law, when properly invoked, to recognise and enforce them.