Augustus Hardin Beau... v. The Honourable Richa...

~ ~ A U ~ i ~ ~ ~ 21. ~~~~~~~ cl8361 E IOORE, 67

peared by the pleadings in the said cause, that the subject was conceived, on the

part of the appellants themselves, t o be so proper for the decision of a jury, that they

had stated in their bill an application to the respondent to have the same tried a t

law ; but an action to a ~ o m p l i s l ~ which purpose the respondent could not, and, as

he was advised, he ought not to colx~mence under the circumstances in wbieh he was

placed, a5 the executor and trustee under the will of the said John White, who had

hiinself in his lifetime asserted the claim.

Mr. Pemberton and Mr. Rennalls, for the appellant; Mr. Borne and Mr. Roupell,

for the resporident.

The Master of the Bolls (Sir John Leach)--after showing that the question

was one of law and not of fact, and that the Court below had miscarried in directing

an issue, proceeded to comment on the Act 24 Geo. 3, c. 19, and expressed his opinion

as follows: “ I wish it to be understood as to the intention of this Act, that the im-

mediate object was to provide against, the enormous charge made J J ~ the executor

of an estate for the m a n a g e ~ i ~ i ~ t of such estate; the mischief as to the purchase-

money not being in the conteI~~plat~on of the enacting part,. The first part of the

clause (sec. 8) claims 6 per cent. c o ~ m ~ s s i o ~ to trustees? attornies and others, for

their m~nagement out of the annual rents and i~crease of the property, which is

not an unreasonable eo~mission for such services. No commission is given by the

terms of this section out of the proceeds of sale of an estate, and i t is a mistake that

the parties here have fallen into, to suppose that to have been the mea~iing of the

Act. The Act, however, does give a commission of E6 per cent. for receiving and

remitting inonieslent, or remaining a t intcrest in the island, that is, 24 per cent. on

its receipt and 24 per cent. on its remission; and therefore though it has clearly

no view to purchases, yet under the equity of the statute it may be said that mohey

received for an estate is the same thing as money received from a debtor to the

estate, and the same princ~ple ought to apply to i t ; and the Court would not com-

plain of that pr~nciple here, i f White had actually sold the estate in Jamaica, which

would entitle him to the commission of 24 per cent., and if he had ~fterwards trans-

mitted the money to England, to 24 per cent. more, making in tlie whole the 5 per

cent. which the Act has provided for. But since he neither received or remitted

the purchas~money, the estate being sold in ~ng land , their Lordships are of opinion

that he has no right to the co~mission claimed. Let the decretal order of the

Chancellor of Jamaica, bearing date the 27th day of February 1826, be reversed,

and decree that the resp~ndent do pay to the appe~~ants the sum of $1680 currency,

together with legal interest thereon, from the time when the testator, John White,

retained the same, and also the appel-~&8~-lat~t1s cost of the suiit in Jamaica, to be

paid by the Reg~strar of the Court there.

As to allowing eornmission to mortgagees entitled to the consignments, see Bum-

bwry v. Yhter , 1 Jac. and Wal. 261 ; Cos Y. C ~ a ~ z ~ e y s l Jacob, Itep. 516 ; and Leith.

v. ~ ~ ~ ~ ~ 9 , X Myl. and Keeae, 277 ; over-ruling Sayem v. ~ ~ ~ ~ ~ e ~ ~ l 1 Knapp, 133.

See also Janiaica Act above cited, 24 Geo. 2, c. 19, s. 8, which declares l‘ That mort-

gagees in po~sess~on are not entitled to any co~~niss ion for their m a n a ~ ~ m e n t o r

transactions of or concerning such possessions, except what shall be paid to &he factor

for his com~is s i~n .”

[Mews’ Dig. tit. COLONY; 11. P A R ~ I C U ~ A ~ C O ~ , O ~ I ~ S ; 22. West ~ m ~ ~ ~ ~ ~ . See note

to DemtoB v. Davy, 1 Moo. P.C. 43.1

I MOORE, 60 14EAUMONT 'U. BARRETT [is361

ANDER ~ E L E O N ~ ISAAC SOARES, and ~ I L L I A ~ DALTON,--Re-

spodents * [June 17, 18361.

The power of punishing contempts is inherent in every assenhly possessing a

supreme legislative authority: whether they are such as tend indirectly to

obstruct their proceedings, or directly to bring their authority into contempt

[l Moo. P.C. 761.

The House of Assembly in Jamaica being possessed of supreme legislative

authority over that island and its dependencies, have such power, and were

therefore justified in committing a party guilty of publishing certain libellous

paragraphs which had been resolved a breach of the privileges of the House,

to the custody of the keeper of the common gaol in the county of Middlesex

in that island, to be detained during the pleasure of the House L]1 Moo. P.C. 781.

Quaere. m e t h e r the warrant to the serjeant-at-arms, directing him to take the

appellant into custody, justified him in co~mit t ing such custody to the gaoler

of the gaol in Middlese~ [I Moo. P.C. SO].

This was an appeal from the judgment of the Court of Errors of Jamaica,

affirming a judgment of the Supreme Court, overruling the general demurrers of

the appellant to the pleas of justification pleaded by the respondents- to an action

of trespass and false i ~ p ~ ~ i s o ~ m e n t , brought against them by the appellant. [so] It appeared from the record that the appellant's action was brought under

the following circumstances: On the 4th December 1833, i t was resolved by the

House of Assembly of Jamaica, then sitting, that certain paragraphs in a newspaper

of that day, called the Zsoltomist, were a breach of the privileges of the House.

The appellant, the printer and publisher of the Zsononhist, having been thereupon,

by an order of the House, summoned to attend touching the breach of privilege,

and having been called to its bar, was shown the Isotzomist and the particular para-

graphs to which the preceding resolution referred, and he was asked by the Speaker

of the House of Assembly, if he, the appellant, were the printer and publisher of the

~ s ~ n o ~ ~ ~ t . The appellant stated that he was not the printer, but that he wrote the

paragraphs in question, and directed their publication. The Speaker then informed

him that the Houx had resolved that such paragraphs were a breach of the privileges

of the House, and desired to know what the appellant had to say in answer.

The appellant having been duly admonished by the Speaker, but offering nothing

in extenuation, it was ordered by the House that the appellant, publisher of the

fsonom&t, should be taken into custody of the serjeant-at-arms, and be by him com-

mitted to the common gaol of the county of Middlesex, for a breach of the privileges

of the House, and that Mr. Speaker should issue his warrant accordingly.

The respondent, the Honourable Richard Barrett, was a member and the Speaker

of the House of Assembly. In obedience to this resolution, he made and issued his

warrant, directed and delivered by him to E611 John Morce, Esq., the serjeant-at-

arms attending the Kouse, and directed also to the custodes, n~agis~rates and con-

stables, and to the keepers of the gaol of Middlesex; whereby, after reciting the

pseeeding resolution and order of the House, it was commanded, that the said

serjeant-at-arms should take into his custody the body of the appellant, and a11

custodes, magistrates and constabIes were thereby required to be aiding and assist-

ing the said serjeant-at-arm8 in the execution of the said warrant.

The s e r j e a ~ t - a t - a ~ ~ ~ praceeded to execute the warrant, and having been violently

resisted and obstructed by the sppellant, he obt.ained the assistance of the respond-

ents Guy, Rammy, Lowndes, Whittaker, Deleon, Soares and Dalton, and of the

Honourable John Lunan, Williain Myers, John Wegg and John Clinch, all of whom

were magistrates and constables, arid thus executed tha warrant, conveyed the

appellant to the gaol, and there delivered him into the custody of the respondents,

Sullivan and Lindo, who were the keepers of the gaol.

On the 5th of December following the respondent, the Speaker, in pursuance of a

* Present: The Vi~e -~ha~ce l lo r [Sir Lancelot Shadwell], Kr. Baron Psrke,

Mr. Justice Bosanquet, and t.he Chief Judge of the Court of Bankruptcy [The Hon.

Thomas Erskine].

734

~~A~~~~~ 2‘. ~~~R~~~ 1118361 I ~ O ~ ~ ~ , 6%

further order of the House of that date, issued and delivered his further warrant.

to the keeper of the cominon gaol of hfiddleses, directing him to detain t.he body

of &e appellant during the pleasure ef the House.

Under these resolutions, orders and warrants, the appellant was detained in

the comion gad untiI the 12th December following.

As of the February Grand Court, 1834, the a~~pellant brought his actio21 of

trespass against the Honourable Richard Barrett, against the said John Moree, their

the serjeant-at arms, but since deceased, who ex-[62]-ecuted the warrant on the 4th

of December, and against the other respondents, for having executed the warrants.

The Honourable John Lurian and Williarn Myers were originally defendants, but tlte

appellant entered a nolle prmeyui as to the foriuer, and Myers being also since

dead, a suggestion of hi% death w a s filed.

The declaration contained four counts. Tha first was for an assault and battery,

dragging the appellant from his d~velling-house througli the public streets to the

common gaol of Middlesex, and detaining him in prison there without any remon-

able or probable cause, whereby he was iiijured in his person, credit and circum-

stances. The

third count was for a n assault and imprisonment; and the fourth count was for an

assault and battery.

The r~pQndent, the Honourable Richard Aarrett, the Speaker of the Eouse of

Assembly, severed in pleading from the other respondents. He pleaded, first, not

guilty to the whole of the trespasses charged, and to the first.count of the declara-

tion he pleaded a- justification of the several trespasses complained of, stating the

circumstances already detailed, the resolution of the House, and the order thereon.

The plea then stated the delirery of the warrant to the s 0 r j e a ~ t ~ a t ~ a ~ ~ ~ s ; that

in execution of it he went to the appellant’s dwelling-house, gave him notice of the

said warrant, and that he, the said ser~eant-at-ar~is, had then come there to srregt

him by virtue of such warrant. That the said s e r ~ e a ~ ~ t - a t - a r ~ s required the appel-

lant to surrender himself, but that he refused to do so, and violently resisfed, and

endeavoured to prevent i ts execution. That in consequence [63] of such resistance,

the serjeant, with the assistance of such of the r e s ~ o ~ d ~ n t ~ as were m a g i s ~ r a ~ s and

constables, arrested the appellant by his body, in execution of the warrmt, and in

obedience to the warrant compelled him to go out of his dwelling-house into the

street, ~ h r o u ~ l ~ which ha conveyed him to the gaol, and then d e l i v ~ r ~ him into the

custody of the keepers of the said common gaol, who then and there took the

body of the said appellant into their custody, in obedience to the said warrant

aforesaid. The plea then stated the further order of the House for detaining the

body of the appellant during the pleasure of the House. It then stated the delivory

of this said last warrant to the keeper of the comI~on gaol ; and tshe plea averred,

that the appellant and the said Augustus Hardin Beaumont, in the said resolutions,

order and warrant mentioned, was and i s one and the same person, and that during

all the time in the plea mentioned the said House of Assembly was sitting.

To the second and third counts tha Speaker plettded justifications similar to t h a t

which he had pleaded to the first count: but the plea to the third count did not

mention the a ~ ~ ~ ~ e l l a ~ ~ t ’ s resistance to the e ~ ~ c u t i o ~ of the warraat. I t stated the

i n ~ p r i s o x ~ ~ ~ ~ e ~ ~ ~ under both warrants, and concluded by averring that he, the re-

spondent, Richard Rsrrett, was not guilty of the said supposed trespasses, or any of

them, in the introductio~ of the plea mentioned, otherwise or in any other ~ a n ~ e ~

than by the making, signing, issuing and delivering of the said warrants as Speaker,

in pursuance of the resolutions and order of the House.

The defendant, John Morce, pleaded the general issue to all the trespasses;

and he also pleaded a justification to the trespasses in the first, second and third [a] counts, under the resolution, orders and warrant of the 4th d December.

ltlorce died before any further proceedings were had in the action, and 0, ~ u g -

gestion of his death was duly filed.

The respondents, Edward Trueman Guy, ~ ~ l l ~ a ~ ~ a ~ s a y , Renry Lowndes, Ben-

jamin W h i t ~ k e r , Alexander Deleen, Isaac Soares, and William Dafton, and the

defendant, William Myers, pleaded the general issue to the whole declaration, a& t c r

the first, second, and third counts they pleaded a justi~cation, under the resolu-

tions, order and warrant of the Speaker of the 4th of December. The said Edward

SRR

second count; was for an assault, bathry and impr i son~e~ t . .

I RE, 66 BICA t" MONT 21, ~ A R ~ ~ ~ ~ [ I 8 8 61

T r u e ~ a ~ ~ Guy, William Ramsay, Henry Lowndw, and ~ ~ i ~ l ~ a n i Myers, averred that

they were justices of the peace, and Alexander Deleon, h a c Soares, aiid ~ ~ i ~ ~ ~ a ~ ~

lldton, averred t ~ ~ e n ~ s e ~ v e ~ to b constables ; and they all stated that they were

acting in aid of the serjea~~t-at-a~,~ns in the executio~~ and a c e o r d ~ x ~ ~ to the exigency

of the said warrant of the 4th of ~ecex~~ber .

The r~Sponden~ , John Au~ustus Sulfivan and Ale~ander Joseph Lindo, pleaded

the gcneral issue to the whole dec~arat~oi~, and a separate pfea of j u ~ ~ ~ ~ e a t i o ~ to

each of the three first counts, under the Speaker's warrant^ of the 4th and 5th

~ ~ e ~ ~ ~ ~ ~ , in which they justifi0d the ass~ul t and i n i p r ~ ~ o n ~ e n t , u n ~ ~ r the orders

aizd re$o~utio~s of the Nouue and the ~ v ~ r r a ~ i t ~ of the 4th and 5th of ~ ~ ~ ~ ~ b e r , wliiclz

mere set forth in each of the pleas. Th0 respondent Sullivan averred that he was

the provost-marshal-,nelferal, and the r~$pondent Lindo averred that ho. was his

deputy; mid both stated that they were by- virtue of their ortices kw3pers of the

~ o m u ~ o ~ ~ ga l.

€683 The d e f e i ~ d a ~ k ~ Webb and CXinoh pleaded the general issue only.

"She a ~ ~ e l ~ a K i t joined issue on the res~oiidents' pleas of not guilty, and deinurred

pieral ly to their several pleas of j ~ ~ s t ~ f i c a t i o ~ ~ . The res~ondents joined in these

deniurrcrs.

In the Same ~ e b r u ~ r y Grand Court the den~urres~ c a m on to be argued, and

in the $u~ceed in~ June Grand Court ~ u d ~ ~ e i ~ t was given for the respo~dents.

The appellant sued out his wr i t of error, r e t u r ~ ~ a b ~ e efore the Governor and

Council ; the common error was a s s ~ g ~ e d * and the r e s p ~ n d e ~ t s j o i m d therein.

On the 17th ~ o ~ e m ~ r 1834: the cause eame on before the overn nor and Council

upon the writ of error ; and &ter a rgui~e~t , , he j u d g ~ e n t of the Grand Court was

affirmed.

The appel~aiit Bea moved his ~ x c e ~ ~ e n c y the Governor m d Council for leave to

appeal from the said judgment to His ~ a j e s t y in Council, which was granted

accordingly.

Upon the a r g u ~ e ~ t of @le demurrer in the Court below, the &ppel~ant~ sLabB a

rariety of points ns grounds for his de~nurrer, which were considered as compre-

hended in and as ~ ~ e s e n t i i i g for the d ~ ~ 8 i ~ ~ i of the Court the two f ~ ~ ~ o w i n g

I. ~ h e t ~ ~ e r the A s s ~ ~ b ~ y of J ~ m a i c ~ possessed the power of c o i ~ m ~ t t i ~ ~ for any

contenipt which w w not any i ~ i ~ e d i a t ~ obstruction to the due course of its

i ~ r o c e ~ i n ~ s : and,

IT. ~ h e t l i e r , if that. power were p ~ s e s s ~ by the ~ $ ~ e ~ b ~ y , it had been shown

by &e pleas of just i~cat~on to have been r e ~ u ~ a r l y exercised.

[66] The Appel~ar~t in pwson.

There are four questions arising from these p r o c ~ d i ~ i ~ s : fir t, whether the

EIouse of Assembly of J a ~ i l i ~ a possess the po-cver to ~ o m ~ n ~ ~ for a a ~ l ~ e d breach of

their ~ r ~ v ~ I ~ e s ; second, whether privilege of ~ ~ r ~ ~ ~ i e n t , if possessed, can be

pleaded by vay- of j u s t ~ ~ c a t ~ ~ n j thirdly, whet~ier such privilege was ~roperly

~ ~ e a d e d in the Court below ; and, four~hly, wliether, if pmperly pleaded, it ainounts

to a j u s t ~ ~ e ~ t , ~ o n . The two first points I admit to be the chief and ~ ~ n p o r ~ n t ones

for ~ r ~ s ~ d ~ r a ~ ~ o ~ ; and in order to c o ~ p r e ~ ~ n d them, wa must take a brief survey

of the history and consti~ution of the island (6 State Trialals, ~ 3 4 : 9 ~ ~ ~ 9 9 ) .

It i s well ~ n o w n that Jamaica came into the p~session of the ~ n 3 ~ i s ~ by con-

quest during the e o n ~ ~ ~ ~ o ~ ~ w e ~ l t h ; and upon the Restoration, the first c o ~ ~ i s s ~ o n ,

duted 12 ~ e b r ~ a r ~ 1661, issued to C o b d D'OyIey, ~ o y ~ ~ r n ~ ~ n ~ him in the govern-

itient of the idand, and e s t a b ~ ~ s h ~ ~ ~ g c v u ~ c i ~ of twelve persons, tc~ be elected by the

people accord^^^^ to the xnanrier prescribed in the ~nstructions~ and who were to

advise and assist the ~ o v e r ~ o r in the civil and j u d ~ c i a ~ ~ o v e r n ~ e n t ~ o'f the island,

By that c ~ ~ n ~ i s s i o n the Governor wa8 directed W creah courts of judicature, and

with the advice of the Council to pass laws suitable La the exigencies of the colony.

In 1662, Co~oneI D'Oyley was succeeded by Lord ~ i ~ ~ d s o r , whose c o m ~ ~ s s i ~ ~ , besides

~ : o ~ i t ~ i n ~ n ~ the power before given to Colonel D'Oyley, dire&& that, in c a e of his

dying or leavin~ the island, the ~ o v ~ r n ~ e I i t should devolve on the Counc~l~ or any

&even of them. The ~nstruct~aii# wbich ~ c ~ o i ~ i p a ~ i e d the new e a ~ ~ ~ s s i ~ n ~ontained IIQ

new d~K.ections as to the mode in which the ~ounc i l should be ap~ointed ;and it ap-

pears that [673 Sir Charles Lyttleton, who succeeded Lord Windsor about two months

~4fterwards, himself appo~n~ed a council of tvelve, and called il general a s s e ~ ~ b ~ y

736

questions :-

I MOOBE, 68

ttxat made a body of laws, among w ~ c h NBS one for ra~sillg a r e v e ~ ~ u ~ ~ this was the

first rwemblance of a p a r ~ i a ~ e x i t in. the island. By the c o ~ i ~ ~ ~ n givexi to Sir

Thornas ~odyfold, who s u c c ~ ~ Sir %rles ~ ~ t l e ~ n in 1664, he was empowered

either to constitute by his awn a u t h o ~ ~ t y a privy council Qf twelve persons, i k r to

co~tinue the old @ne., and alter, c ~ ~ g ~ or a u ~ ~ n ~ it a% be t ~ o u ~ h ~ proper. Ee

was also e ~ p o ~ ~ e r e d , with the advice of the m a ~ o r i t ~ of the council,

to fralne a method for ~ ~ b l ~ s h i n g general assemb~ies, aaid from t ime to time

to call such assemblies together, and with their consent to pass all

manner of laws, reserving to hiniself a negative voice; as also, upon ~ ~ ~ ~ l i n e ~ ~ t

o c c ~ ~ ~ o n s , to levy n~oney, In pursuance d these powers, Sir Thomas ~ ~ o d y f o ~ d , in

July 16.64, iaaed writs for e h t i n g two ~ s e ~ b l y men for ea& par~sh, which

~ssei~ibly met in October fol~ow~ng, and having passed a.. body of laws, were dis-

solved twv or three inoaths a f~ rwards . The laws so passed were t r ansn l i t t~ to the

Lord Chanc~llor in ~ ~ ~ g l a ~ ~ d , but were not c a r ~ ~ r m ~ . Another Asse~nbly was called

and dissolved by Sir Thomas Lynch, Sir ~ h o m a ~ ~ o ~ ~ f o l d ’ s successor, in 1611.

On the 36 December 1614 Lord ~ ~ ~ u g h ~ i i was appointed Governor with a corn-

lnj~sion, in which twelve persons were named, with power to him to expel or suspend

any one of them, and in cases of ~’acancy to fill up the Council to nine. We was also

empowered to call ~ s e m b ~ ~ ~ accord~ng to the usage of the ~ s l a ~ d , and wi th this

Gounoil and A s s % ~ b ~ y to pass laws, which laws were to be in force two years, u~less

Crown’s pleasure was in the i i iean time s ~ ~ i f i e ~ to the. eo~~t rary , and no

eept they were approved and confirnied within that Lime. In the passing

of these laws the Goverrior wns to have a negative v&e, and to dissolve any Assembly

m he should think proper. During the a d ~ i n i s t r a ~ ~ o ~ of Lord ~ a u ~ l ~ a n two

a s ~ e ~ ~ l i e s m t in 1675 and 1677 j each passed a body of laws, which were trans-

mitted to England. Up fso this period four essential changes had been made in the

coi~sti tutio~~ of the CounGil of the island, and now a nev power was i i ~ ~ r ~ u c ~ and

conferred on the Governor, that of sus~ey~ding 0.1. ~ e ~ o v i n g any nieinber of the

Council at his pleasure. It appears that at t h i s period the House of Asse~bly

accepted the title in their Acts, of the r e ~ r e s e n ~ a t i v ~ of the c~dony; but it cannot

be c o n ~ e n d ~ that an Assembly so. formed w in t~he nature of a parlianient, f o r

the Crown resunled %e powsi* of s u s p ~ ~ d i n its ~ l e a s u r ~ an^ laws made by the

Mouse of Assembly, and i t does not appear that the laws pmarrsed by ~ i y one of these

n r i o u s ~ s s e r ~ ~ l i e s w re ever s u ~ ~ u e n t l y ccmfirrned by the Kiw in ~ o ~ n ~ ~ ~ . I the

~ ~ g i ~ i ~ ~ ~ n ~ of 3 678, says Mr. Edwards, in his History of t-he Weet Indies’ new system

of ~ e ~ i s ~ a t ~ o ~ ~ was adopt& for Jamaica. This system was iiearly founded on the

plan of the Irish coiistitullon under Poyning’s Act; and in order to enforce it, the

Earl of Carlisle wag appointed Chief ~ o v e r ~ o r f the island. !&e Privy ~ o u ~ c ~ K of

E ~ ~ ~ ~ ~ d prepared tb codei of kaw~ and n bill fos ~ t t l i ~ ~ ~ a ~ ~ ~ ~ e t u a ~ r ~ ~ ~ ~ ~ u e on the

Crow12, which his ~ ~ o ~ ~ s h i p wtas to offer to the Assembly, requiring them a t the

s m e time to adopt the whole cods w~thout. any a n ~ ~ n d ~ ~ e n t or altertition. The

heads of all bi11s, except those: r e ~ a t i ~ g tv ~ ~ ~ o n e y ~ E691 were ta be sent to H i s

~ ~ a j e s t y after they had been suggested by the Governor and CounciI: if the King

a ~ ~ p r o ~ e ~ them, they were to be r e t u r i ~ ~ under the Great Seal, in the forln of

laws, and passed by the General A s s e ~ ~ b l y ~ which was to be conve~~ed fo.~: no othel-

purpose than that, and voting the usual supplies, specid orders f r m ~ n g ~ a n d

iteing e~cepted. The ins t~uct io~~s to the Earl of Carlisle, h i d e s e ~ b o d ~ ~ i ~ I g the

above ~ ~ o ~ ~ s ~ o K ~ s , di ected that the presen~ style of enacting laws ‘. i ~ y the Goyernor

and r0presenta~ves of the ~ 0 ~ ~ ~ 0 ~ ~ a s s e ~ b l e d ~ be converted i~r to t,he style of ‘‘ Be

it e ~ ~ a c t ~ by &e King’s most E ~ c ~ l ~ e ~ t ~ a j e s t y , by and with the consexit3 of the

General Assembly.” Thus the entire governnmnt of the islalid was Feduced to i~

niere r ~ i u n ~ c ~ ~ a l cor~oration, and that of the lowest ehasitctttr, inferior i l k point of

a ~ l ~ h o r i t ~ to any e ~ i s ~ ~ n ~ in this cO.uritr~, for that had iiat even the p o ~ e s of making

bye-laws. f t is true thtbt much contest arose u p w trhis c o m ~ ~ i ~ ~ o n : tpne of the Privy

~ o # n ~ i I l o r s in the idand, the Chief Justice and the Speaker Jvere al.rested for

o p ~ ~ o s ~ n ~ and a t t ~ ~ p t i n g to contravene this c # i ~ n ~ s s ~ o n ~ and were } ~ r o u ~ ~ ~ t hefore

the Privy Council in this country. It i s said by the r e s p o ~ ~ d ~ n t s that the result of

these ~ r o c e e d i ~ ~ g s was the new e o m ~ ~ s s i o n ~f the 3d Movember 1678. granted to

Lord Carlisle, directing him to call General Assernbl~~ in manner and forxn there

p r ~ c r ~ b e d in Jamaica, and with the advim of the G0~7ernor and ~ o u ~ ~ c i l t;o make,

~ o n s ~ ~ t u t e and ordaiii laws. statates and ordinancm for the public peaae, welfare

F”. c. 1, 737 2.1

I ~ O O R ~ , 70 ~ ~ A ~ ~ ~ O ~ ~ V. ~~~~~T~ [1836]

and good govern~~ient of the island, and of t h e people and inhabitants thereof,

which were to be (a near as co~~ven~ently might be-) agreeable to the laws and

statutes of England: with this proviso, that such laws should be t.ransmitted

i ~ ~ ~ i a t e ~ y under the pubIic seal, for Ris ~ ~ a ~ ~ t ~ s allowrznc~ and approbat~oii,

and that t.hey should ba void on His ~ ~ j e s t y ’ s di ~llowance being s ~ g n i ~ ~ ~ under the

sign i ~ ) a ~ ~ ~ i a ~ , or by an order of the Privy Council. But even hy this c o m ~ i s s i o ~ ~ the

King resezved power to disallow any law so passed, either by his sign manual 01’ bp

8x1 order of the Privy Council, and i t i s uvel.x1 known that for a. long series of years

this right was constantly, though ~ e r ~ i a p s i~p ro~ iden t ly , exercised ; neverthe~ess

i t SO continued, and the first public act of the British Parliainent, which in anywise

r e c o ~ n ~ ~ e d laws enac~ed by the House of Assembly of Jamaica, was the 1 Geo. 2, c.

10, wh~ch by sec. 22, eilacb, “ That all t he acts and laws of the island which dekr-

mined and expired on 1st day af ~Gtober 1124, and not thereby or by any former

act of the ~ o ~ e r ~ o r , Council and ~ s s e ~ b ~ y , thea in force, altered or repealed,

should be and were thereby r ev i rd and declared to be perpetual. And also, all

such la.vrrs and stakutes of ‘England, as Imvs been sat any time esteemed, ~ n t r ~ u c e d .

used, accepted or received as laws in the island, should aitd were thereby declared to be

and cont~n~te laws of W i s ~ajesty’s island of J a ~ a i c a for ever.” Such i s a brief history

of the c o n ~ ~ i t ~ ~ t i o n of the Rouse of A s s e ~ ~ l y , from which E contend it i s an inferior

and subordinat5 body, riot possessing or invested with any of the powers essential in

the c o n s ~ i ~ ~ t i o n of a free and ~ndependent l e ~ i s l ~ t u r ~ . En 1683, the meinbers of the

House of A s ~ e n ~ ~ l y ~ e t ~ ~ i o n e d the Ring in Council in ~ a n ~ a ~ e which creates any-

r than an i ~ p ~ e s s ~ o n of their being a free and inde~endent ~egisla~u~,e

78). In [71] 3698, two of their members, Charles Hobby and JoIm Dore,

e House for leavfa to be sued (1 Journals, 189, 190). All these are but

instances of the s u b o r d ~ I i a ~ nd ae~ender l~ situatiou of the House of ~ ~ ~ s e ~ b ~ y and

ita memb0r~, and &heir utter want of the character of a free arid ~ ~ ~ d e p ~ n d e n t

~ e ~ j s l a t u r ~ . E might multiply such ~ n s t a ~ ~ ~ ~ ~ without end ; the jouriials of the Eouse

abound with them. If the House of A ~ ~ e i ~ b ~ ~ pos R the power they ~ r ~ t e i ~ d to,

there is no species of t y ~ a n ~ i y they may iiot exercise. They may decide to wi thd r~~v

their a ~ l e ~ ~ a ~ c e . In ~ ~ Z ~ ~ ~ ~ c 9 , ~ v. ~~~~d~~ (2 Sallr. 7tll), and ~ ~ ? ? ~ . ~ ~ ~ ~ ~ l v. N d l (20

State Trials, 239), the nature of the constitution of the island is well de~ned. Lord

Mansfield lays down the rule, that they can be no p a r l ~ ~ e n t i the true and in-

depende~~t meaning cuf the vord. In ~ l ~ c k s ~ o n ~ (1 Blacks. Corn. 160, 161) it. i s said

that the Ewse of C o ~ ~ ~ i ~ s of Great ~ ~ r i t a ~ ~ is above all law, it is in truth a part of

thc High Court of ~ a r ~ ~ a ~ i ~ e i ~ t of the Kingdorn ; but in J ~ ~ i a i c ~ the Xing may with-

draw the c o ~ ~ ~ i s ~ i o ~ or nstruct~ons at any time, and thus ah&h the Rouse of

Assembly, This has been done in other colonies. In ~ e n n s y l v a n ~ ~ the charter w a s

vacated and a new one granted. Tlie very fac t of the numerous conmissions sent

out to ~ ~ ~ ~ ~ a ~ c a show that such a power has always been reserved by the Crown; the

exercise of which i s ~ ~ ~ c o ~ p a t i ~ ~ e with a free and i~idfape~~den~, ~ ~ ~ ~ I a t u r e . Such

p r ~ v ~ l e ~ ~ s a,s those contended for here could only be confirmed by Act of ~ a ~ , ~ i a n i e ~ i t .

or by charter. The only p r ~ v i ~ ~ ~ s the Hou e of A ~ ~ ~ n ~ l y possess are such as a re

~ndis~ensable to their own ~ r o t e c ~ ~ o ~ ~ . The a p ~ e ~ l a ~ e ~urisdiction of the Council is

in no respects siniilar to %hat of the High Court of ~ ~ ~ r ~ ~ a m ~ t here; it i s wholly

f72] subject to the control and direction of the King in CcPunciX. En aXX Acts framed

and passed by the House of Assembly the King reserves a double veto, first through

the overn nor, and tben t h r o u ~ h the Privy Council. If the Assembly were erected

into a Council by the c o ~ y ~ ~ s s i o ~ ~ of Cha. If., SS they insist, that c o ~ ~ i s s ~ o n i s

illegal, and a v~o~at ion of the Act a b o l i s ~ ~ ~ ~ ths Star C h a m ~ r ,

The pi- t o the rzction for trespass and false i ~ ~ r ~ s ~ n m e n t , is ~ ~ ~ e ~ f ~ t ; it

states the arrest to have been a c c ~ r d i n ~ to the custotns, hut’ does not state what

customs are, In Bwdett v. Abbott (14 East), the libel was wholly set out. The

warrants were informal; the first, of the 4th December, is d i r e c ~ d to the serjeant-

ann8 and recites that it had been resolved by the House that ~ u ~ u s t u s

rdin ~ ~ e ~ u ~ ~ n t , ~ u ~ ~ i ~ ~ ~ e r of the I~ononiist, s h o u ~ ~ be taken into the

qustody of the s e r j e a ~ ~ ~ - a ~ a r n ~ s , nd be by hini c o m ~ i ~ t ~ ~ ko the c o r ~ ~ ~ o ~ gaol of

the county of ~ ~ d d ~ ~ ~ , for a breach of the prh&gw of that House, and that &fr.

Speaker sliould issue his warrant a c c o r d i ~ ~ ~ ~ ; it was therefore thereby c o ~ ~ n a n d e d ~

ch. The second, which is dated the day following, i s addressed to the keeper of the

$35

B E A U ~ O ~ T v. BARRETT [ 18361 I XOORE, 73

common gaol of Middlesex, recites to the same effect, and then goes on to say that

i t had been resolved that Nr. Speaker should issue his further warrant to the

keeper of the common gaol of Middlesex to detain the body of the said Augustus

IIardin Beaumont during the pleasure of the House; therefore the keeper of the said

common gaol was thereby required to detain, etc. The first warrant contains no

mandate to the keeper of the common gaol in Middlesex to receive the custody,

though it directs the serjeant-at-arms to [73] detain in custody ; the1 commitment,

therefore, under that warrant to the gaol of Middlesex was illegal. The issuing of

the warrant to the serjeant-at-arms would not give him power to commit to the

conimon gaol of Middlesex, It is in the nature of a commitment on execution before

judgment. The conclusion of the last warrant is fatal, it directs nie to be detained

during pleasure; that exceeds the power of the House, and therefore the warrant

-,vas bad. I was, in fact, released on the prorogation of the House.

Sir W. Follett, I(. C., and Burge, K. C., for the Xlespandents, were called upon

to address themselves only to the form of the warrants.

hlr. Baron Parke.-T&eir Lordships have no doubt but that the judgment of the

Court below must be afKrxned upon the main question which has been discussed

before them.

This is an appeal brought by the appellant against the several respondei~ts,

one of whoni is the Speaker of the House of Assembly of Jamaica, one tha provost-

marshal-general, others are magistrates and constables there, one was the serjennt-

at-arms, and one the keeper of the gaol of Middlesex, in that island; and the

action was brought for a trespass, in taking the plaintiff into custody, carrying him

to the common gaol, and imprisoning him: that is his complaint. There are

several pleas by the difllerent persons who are sued as defendants, which in substance

state, that in the House of Assembly, during its sitting, it was resolved, “ that a

paragraph in a certain paper, alleged to have been published by the appellant,

was a breach of the privileges of that House; whereupon, the appellant being

called to the bar of the House, and being asked if he E741 was the publisher of

the paper, admitted he wrote the said paragraph and directed the publication

thereof; and it was thereupon resolved that the appellant be taken into the custody

of the s e r J e a n ~ a ~ a r ~ s , and be by him committed to the common gaol of the

county of Middlesex for a breach of the privileges of that House, and that Mr.

Speaker should issue his warrant accordingly.” The pleas then go on to state,

‘‘ that a warrant was issued by the Speaker, in pursuance to the resolutions of the

House, directed to the serjeant-at-arms, and to the custodes, magistrates and con-

stables, and to the keepers of the gaol of Middlesex, whereby, after reciting the

said resolution of the House, it was conimanded that the serjeant-at-arms should

take into his custody the body of the appellant; and all custodes, magistrates and

constables were thereby required to be aiding and assisting the said serjeant in the

execution of the said warrant.” And the diffevent pleas proceed to justify that

which the different parties did in this transaction.

To these pleas there was a demurrer, which was first argued in the Supreine

Court of Judicature in Jamaica, and afterwards in the Court of Errors there,

upon both points; that is, first, whether the House of Assembly of Jamaica i s

possessed of the power of com~~i t t i ng for any contempt which was not an i n ~ n i ~ i a t e

obstruction to the due course of its proceedings; and, secondly, whether, if that

power were possessed by the Assembly, it had been shown by the pleas of justification

to have been regularly exercised. T’he Supreme Court in Jamaica was of opinion

that the pleas were good, and the Court of Errors of Jamaica were of the same

opinion ; and as these Courts are to be presumed to1 be cognizant of the law of tlle

island, and have [76] both decided that the power of imprisonment for the conterllpt

in question was inherent in the House of Assembly, and that i t was rightly exercised,

we ought not to pronounce a contrary opinion, unless w e saw clearly they had not

that power, or did not properly use it, if they had j and in saying that, we cannot

come to any such conclusion.

It is not necessary to enter a t length into the history of the constitution of tlre

island of Jamaica. It appears that it was a conquered island, and as in other

territories obtained by conquest, such laws are in force there as the King by his

supreme authority may choose ta direct. We find that in the year 1680, in the

739

X ~ O O ~ E , 76

tinie of the Lord Carlisle, his then ~ a j e s t y did give a direction for tlie fucure

gwernment of the island; that is, that General ~ssembl~es should be called in

manner and furin then practised in Jama~ca, with power, with the advice and

consent of the Governor and Council, to make, cons t i t u~ and ordain laws, statutes

and ordinances for the public peace, welfare, and good government of the island,

and the people and inhabitant^ thereof, which were to be (as near as ~ ( ~ n ~ ~ e n i ~ n t ~ y

might be) agreeable to the law and statutes of England; with a proviso that

such laws should he transmitted ~mmediate~y under the pub~ic seal, for his majesty's

allowance and approbation, and that they should be void on his Majesty's dic-

allowance being signified under the sign manual, or by an order of the Privy

Council. Now that act of the supreme governing authority in E n ~ l a i ~ d , con-

stitutes a legislative body in Jamaica ; and it gives that body the power, Rubordinate

no doubt to that of the Pa r l i a~en t of Great Britain, and subject to its control,

if i t chooses te exercise it, to enact laws which ['761 will bind all the i ~ ~ ~ ~ a b i t a n t s

of Jamaica and its dependencies. This assembly is not like a corpora~iou, which

has s power to make bye-laws for the carrying into effect the purpose for which

it i s established; but i t is the supreme 1egisIative assembly of the island, author-

ized to make laws for it, with ths sanction of the mvereign. And without adverting

for the present to what has been done by the Assembly, from the tinie it8 constitu-

tion was given to i t in the year 1680, or relying upon the precedents laid before

us, it. would appear, 1 t&&, to be inherent in every assembly that p ~ ~ ~ s e s a

supreme legislative authorit~ve, to have the power of p u ~ ~ i s ~ ~ i n g conteuipts, and not

merely such as are a direct obstruction to its due course of proceeding, but such

also as have a tendency indirectly ta produce such an obstruction, in the same way

as Courts of Record may not only remove or punish persons who actually are in-

terrupting their functions, but may also repress those who iadirectly impede the

administration of justice, by disparag~ng and weaken~ng their a u t ~ ~ o r ~ t y . The

language of Lord El len~rough on this subject, as reported in the cage of ~ ~ r ~ e t t

v. Ab6ott (14 East, 137), in which his brdship, in speaking of the powers belong-

ing to the House of Commons, i s v e q apposite to the present inquiry :-" The

privileges which have been since enjoyed," says his Lordship, '' and the functions

which have been since uniformly exercised by each branch of the legisl~~ure, with

the knowb6ge and acquiescence of the other Nouse, and of the King, must be pre-

sumed to be the privileges and funct~ons which then, that is, at, the ver? period

of their original separation, were statutably assigned to each. The privilege3

which [77] belong to them seem at all times to have been, and n e c e s s ~ r ~ ~ y nrust be9

inherent in them, independent of any precedent ; i t was necessary that they should

have the most complete personal semrity to enable them fredy to meet for the purpose

of discharging their i ~ p ~ r t a n t functions ; and also that these should have the rightt of

s e l f - ~ r o ~ ~ ~ ~ ~ # ~ ; I do not mean merely against acts of ~ n d i ~ i d u a l wong, for poor

and impotent indeed would be the p r ~ v ~ l e ~ e s of Parliament, if they could not also

protect theniselves against injuries and a ~ r o n t a offered to the aggre~ate bady,

which might prevent or impede the full and effectual exercise of their parlia-

mentary funct~ons= This is an essential right, r i ~ e s s a r ~ ~ y inherent in the Supreme

Legislature of the Hingdom, and of course as necessarily inherent In the Parliament

assemb~ed in the two Eouses as in one. The right of self-protectio~ implies, as ;t

consequence, a right to use the necessary means for rendering such sel~-~~rotectioi~

effectual. Independently, therefore, of any precedents or recognized practice on

the subject, such a body must a In.;ar< be armed with a c o ~ p e t e ~ t authority to

enforce the free and independent exercise of its own pruper functions, whaterer

these functions might be. On this ground it has been, I believe, very generally

admitted in argument, that the House of Commons must be, and is uutliorized to

remove any immediate obstructions to the due course of its proceedings. But

this inere power of removing actual impediments to its proceedings would not be

suBcient for the purposes of its full and efficient protection; it must also have

the power of protecting itself front insult and indignity wherever offered, by punisli-

ing those who offer it. Can the Kigh Court of Parliament, or either of the two Houses

[78] of which i t consjsts, be deemed not to possess ~ n t r ~ n s ~ ~ a l l y that au~hority of

punishing summarily for contempts, which is acknowledged to belong, and is daily

140

~ ~ ~ U ~ ~ O N T ‘U, ~ A ~ ~ ~ T ~ [ 1836] I ~ O O ~ , 79

exercised as belonging tu every superior court of law of less dignity undoubtedl~

than itself P I’

Now if we apply that principle t~ this legislat~ve body, which appears to

possess s u p r e ~ e legislat~ve authority over the whole of the island and its depen-

dencies, a.e must in like manner say, that they have incidental~y the power not only

of p u n i s ~ ~ i ~ ~ g direct i m p ~ ~ m e n t s to their proceedings, but indirect o~struct io~~s,

such as are caused by libels reflecting on their conduct, and tending to bring their

aut~ori ty into contempt, and that independently of any precedent for its exercise,

But if we look into the aut~orities adduced in this case, we shall see that this power

has been exercised with0u.t dispute, so far as relates to the ~mprisonment of persons

for contei~~pts, from that period (1680) down to the present day. In the years

1686, 1687, 1688, 1696, and 1109 (1st vol. ~0~~~~~ of Ewse of A ~ s e ~ ~ ~ ~ , pp. 86,

$33, 94, 107, 108, 115, 164, 165, 166, 161), and s u ~ e q u e n t ~ y , many persons have

been impris~ned for publ~cations declared by the House to be breaches of privilege,

and that pox-er has been used so frequently, that i t would probably be too Iateto

question its existence at this day, i f the case were to be deterni~ned by precedei~t3

alone. In ~ d d ~ ~ i o n to these instance^ of the exercise of that ~ ~ t h ~ r i t y , there are

o~cas~ons in which there has been something very nearly (though not positively

~ m o u n t i ~ ~ ~ to) a direct recognition of that, authority by the supreme court a t home ;

and besides this, it seems to farm part of the settle~nent which took place by the A&

of the Colonial ~ ~ e ~ i s l a t u r e of the E791 1 Gea 2, c, I, passed in the year 1728, which

directs, “that all such laws and statutes of England, as have been at any time

esteemed, introduced, used, accepted cIr received, as lswas in the island, should and

were theqeby declared to be and continue lam of His ~ a j e s t ~ ’ s island of Jamaica

for ever.” Sotv among these laws of Great Britain, which had been used 01’

received as laws in the island, was c e r t a ~ n ~ y the power of ~mprisoning persons for

a bre&ch of p r i v i l e ~ e ~ for I have already ~ot iced that there are several instai~ce~

of its exescise from 1680 down to 1709, which show that the powers undoubt~edly

belonging to the Houses of Far l iame~t in Great Britain were exercised by the Rouse

of Assembly in J’aniaica. The Jamaica statute t~erefore appe&red to amount to an

~ i d o ~ t i o n and e s t a b ~ ~ s ~ i ~ e n t in that c o ~ n t r y of the laws of ~ n g l a n d , so far a8

relates to the pox-er of ~ ~ p r i s o n m e n t for a contempt; and on this ground the

legality of the power in question might be supported, if i t did not

Assembly. as we think it did, by law, RS a necess~ry in€ident to

character.

For these reasons, therefore, i t a ~ p e ~ r s to their Lords~~ips that the L e ~ ~ s ~ a t ~ v e

~ s s e ~ b l ~ T of Janiaica had the power of ~ m p ~ ~ s o n ~ n g for a co~tempt, by the publica-

tion of a libel. Xt may be true that they may have occasional~y exercised this power

of i ~ ~ ~ p r i s o ~ ~ I i ~ e ~ ~ t in an improper way, a3 has ~appened in former times in rhe

exercise of similar powers by the Eouse of ~ o ~ o n s i this country; yet %-e map

\Tell believe fhat persons of the stat~on and character who constitut~ the ~ e ~ I ~ b ~ r ~

of such B body, are not likely, in these days, to abuse their privileges, and that the

~ ~ , l ~ o ~ e s o i ~ ~ e control and influence of pubIic opinion will prevent the revival of sudh

evils. But, howet-er, with that con-E~~~-siderat~on we have nothing to do; we have

f ihply to ~eterni i i~e what the law is; and there is this c i ~ c u ~ s ~ n c e &ttendin~ t h

House of dssenibly in J a ~ a ~ c a , which does not belong to the Legislakure here,

namely, that if they do carry t b t pctwer to %he extent of interfering vith the rights

and liberties of the King’s subjects, and to objects which do not fairly come

within their province, the supreme leg~al~tive authority in this country may repress

or put an end to it.

This brings me to tbe second q ~ e s t ~ o 4 w ~ e t ~ e r this power has been in ttio

present case properly exercised or not?

It i e clear that the House of ~ s s e m b ~ y was not bound to set out upon the warrant

That the libel was. That point is p e r f ~ t l y settled in the case of et^ v. Bbbott

[la East, 11, and it i s also establis~ed by alt the caaes on this subject, that if one

court conmit for a contempt, no other court can inquire into that contempt.

the warrant was cmried into

execution. If upon this part of the case,

and from that doubt f am. not e n t ~ r e ~ y t i s whether the ~ ~ ~ ~ a ~ t is

a ~ u s t i ~ e ~ t i o ~ of dX the parties ha-e done under it; heth her it aut~orizes any

741

An object~on was then taken t5 the mode

I must own I have felt some do

L MOORE, 81

thing more than the merely taking the appellant into custody. No doubt it was

nieant to do more, for certainly the resolution of the House recited in it, goes to a

much greater extent; that the appellant should not only be taken into the custody

of the serjettnt-at-arms, but stand committed to the common gaol of tphe county of

M~ddlesex, and be detained there; and there is no question that the framer of this

Tarrant intended to have embraced all these objects, but in the concluding paTt

he has not used the proper l a n ~ u a ~ e to carry that [$$I] ~ n t e n i ~ ~ ~ ~ into effect. TI-re

rest of their Lordships do not feel the doubt+ to the same extent that T do ; they also

think that the form of the pleadings does not require that the i~~pT~sonxnent i

the county gaol of Middlesex should be justified, With respect, to the case of the

Speaker, his plea stands entirely jndependent of any defect in tohe warrant, tmtl i s

not affected by it, if such a defect exists; with respect to the m a ~ i s t r ~ t e s also, ail

they profess to justify i s the tPlking the a p ~ ~ ~ t iab c u s ~ d ~ , &e carrying him to

gaol and imprisoning him, and as the rest of their Lordships think that all that

i s required to support that plea was the authority to take the appeIlaiit into

custody and imprimn him somewhere, that authority is undoubtedly given by this

w a r r ~ t . The same reason applies to the pleas of the other def~ndants, ~ n c l u d i ~ ~ g that

of the keeper of the gaol; all have a right by this warrant to concur in taking the

appellant into custody, and keeping him in custody in some place, and that in the

opinion of their Lordships is the substance of the plea.

Upon these g~ounds, therefore, it appears to their Lordships that the ~udgment

of tbe court below ought to be aErrned; but in consequence of the doubt, as to

the form of the warrnnt, the judgment will be affirmed without costs.

[Mews’ Dig. tit. PARLbIAME”, b, INTERNAL MANAGEMENT, 2. J’o?i)ers of. See

3 St. Yr. N.S.; 1283 and the Printed Cases in Privy Council ~ p p e a l ~ ; partic-

ularIy the respondent’s case where the various commissions relating to Jamaica

and the powers of the ~ s s e ~ ~ ~ b l y of Jamaica are fully dealt with. Not fo~Ko~~ed,

as regards powers of C o ~ o n ~ a ~ ~ ~ ~ s l a t u r ~ , i i ~ XeBPey 8. C~l.so.n, 1841-2, 4 BEoo.

P.C. 63 ; Pemtun, x-. ~ a ~ ~ ~ t # ~ 1888, 11 Moo. F.C. 347 ;ZToyle T. ~ G ~ ~ o n e r 1866,

L.R. X P.C. 328. See also ~~~~~~ v. Eyre 1870, L.R. 6 Q.B. 1 ; Charge of Black-

burn, in Beg. v. Eg**e, 1868, L.R. 32 B. 487 ; Forsytti Cas. Cons$. h c * , p. 25. As

txt expression of existence of divergence of opinion) among members of Judicial

C o ~ ~ t t e e , (1 Moo. P.C. 811, see 0. in C. of 4th Feb. 1878, and authorities

collected in Phillimore, &xi. Law, 2nd ed. p. 975,]

A.-B. OF ~ ~ ~ ~ O ~ ~ ~ L ~ ~ ~ 21. G ~ D ~ ~ L Y [1836]

E821 ON APPEAL, FROM THE SUPREME’ COURT OF THE ISLAND OF

~ ~ ~ ~ ~ ~ U N D ~ N D .

AM^^ S I ~ ~ S , Esq., A t t o r ~ e y - ~ ~ e r a ~ of the Island of NewfoundIand,-~ppelln.lrt ;

JOHN C ~ J ~ ~ I L ~ , - ~ e ~ ~ o n ~ e ~ ~ [June 17th, 18361.

Under the st8tutes for r e ~ u ~ ~ t i n g the fishery of Newfoundland, and taking away

the public use of certain ships’ rooms in the town of St. John in that island,

the Crown is not entitled to claim a piece of ground formerly used as a

ship’s room, a g a ~ n ~ t such a possessio^ as would have been a bar to the claim

of the Crown if the land had not been clotbed with that character.

S e ~ ~ ~ e . No objection can be; taken on the appeal that the title of the defendant

was not pIeaded specially to an information for intrusion, in the court

below.

This was an appeal from a judgment of the above Court upon a verdict, in an

i~formation filed by his Ma~esty’s Attor~ey-General of the island, against the

responden~, for intrusion upon a certain quantity of land a t St. John’s in

Newfound~and~ ~ I o n g i n g to his Majesty, called a ship’s room, which the resp~ndent

had encIosad. The respondent pleaded ‘ I Not guilty; ’) and upon the trial of the

cause in the Supreme Court of the island, before the Chief Justice and the other

judges on the 18th of February 1831, the respondent was acquitted by the jury.

By the 15 Geo. 3, e. 31, s. 2 it is enmted, “That far the better ~ ~ 0 0 ~ ~ ~ ~ -

74.2