KIELLEP v. CARSON [1841-42] XV XOORZ, 63

said Supseine Court at Gibraltar touching the Receiver that has been appointed, or

othermise, consistently with this Report, in case Her Majesty should be pleased to

approve the same, and to order as i s herein reeomniended; and such order of

approval on this Report is to be without prejudice to any question as to the right

of the sum of dollars 23. 1. and the sum of dollars 8. X. 12. for alms respectively in the

said schedule mentioned, or either of them, and without prejudice to any future

proceeding in respect of any receipts hy the Appellant subsequent to the year 1840,

if any.”

This Report being approved by Her Majesty in Council, an Order in accordance

therewith was drawn up.

[ilfews’ Dig. tit. COLONY, 111. APPEALS to PRIVY COUNCXL, 1. 4. 6. g.f

_____ ----

ON APPEAL FROM THE SUPREME COGRT O F THE 1SLm-D OF

~ E ~ ~ ~ O ~ ~ D ~ A N D . q d . !q.q &*r.

EDWARD KIELLEY,-Appe27anZ; TTTILLSAM CARSON, $0” KENT, and

Others,-Respondents * [Jan. 4, 5, and 6, 1841 ; May 23, 18421.

The House of Assembly of t h e l h n d of Newfoundland does not possess, as a

legal incident, the power of arrest, with a view of adjudication on a contempt

committed out of the House; but only such powers as are reasonably neces-

sary for the proper exercise of its functions and duties as a local legislature

[ a i)foo; P.C. 84, 86, 881.

S’enzble.-The IIouse of Coimnons possess this power only by virtue of ancient

usage and prescriptioli ; the lecz: et constbettido ~ ~ ~ ~ ~ ~ 7 ? ~ e ~ ~ ~ [i Moo. P.C. 891.

SenzbZi.-The Crown, by it prerogative, can create a Legislative Assembly in a

settled Colony, subordinate to Parliament, but with supreme power withiii

the limits of the Colony for the government of its inhabitants; but

Qztere.-Whetlier it can bestow upon it an. authority, viz., that of committing

for contempt, not incidental to it by law [4 Moo. P.C. 861.

The principles of Beaumont v. B a v e t t (1 Moore’s P.C. Cases, 59) and Bmdett v.

Rbbott (14 East, 13’7) examined [4 Moo. P.C. 91, 921.

This was an appeal from the Supreme Court of Judicature of Newfoundland,

upon a judgment on demurrer, pronounced on the 29th of December 1835, in an

action brought by the Appellant against the Respondent, for assault, battery, and

false imprisonment.

The Appellant was the district surgeon and manager of the Hospital in Saint

John’s town, the capital of Newfoundland. The Respondent, John Kent, vias it

member of the House of Assembly of ~ewfo~iiidland, and, in his place in the House,

had made some animadversions on the n ~ a ~ a g ~ n ~ e n t of tho Hospital.

On the 6th of August 1838, Kent reported to the [64] Rouse of Assembly that

the Appellant had been guilty of a contempt, having reproached him in gross and

threatening langnaga for the obser.i.ations he had made, adding, “ your privilege

shall not protect you.” The House immediately referred the consideration of Mr.

Kent’s complaint to a Committee of Privileges, before whom evidence as to the -

alleged breach of privilege was taken, and the Ilousc, upon their report, voted the

Appellant guilty of a breach of the privileges of the HOLIS~ of Asseinbly, which, if

passed unnoticed, would be a sufficient cause for deterring a mcrnber fro111 acting

with that independent conduct necessary for every Asseml-rly, and ordered tIlat the

* Present: The Lord Chttncellor [ h r d Lyiidhurst], Lord Brougha.lam. Lord Den-

1x1 an, Lord Abinger, Lord Cottenham, Lord Campbell, The Vice-Chal.rcellor of Eng-

land [Sir Lancelot Shad.;cell], the LOA CIiieE Justice of the Co1nmo11 Pleas [Sir N. C.

Tindal), Xu. Baron Parke. Mi*. Justice Erqkine, and the Right Eon. Dr. Lushington.

P.C. X I , 225 8

fV XOORE, 66 KIELLEY 9. CARSON [ 1 8 4 1-42]

Speaker do issue his warrant to the Serjeant-at-Arms, to bring the Appellant to the

Bar of the House, to be dealt with according to tlie pleasure of the House.

The Appellant was accordingly arrested, and on the following day, the 7th of

Auqust, brought to the bar of the House, where the Respondent, T;Villiam Carson,

the Speaker of the House of Assembly, read to him the resolution, which declared his

eonduct to the Respondent, Kent, to be a breach of privilege, and required him to

explain. The Appellant, it appeared, instead of explaining his conduct, made use

of violent language towards Mr. Kent, wlio was then in his place in the House; and

the House thereupon directed him to withdraw, in the custody of the Serjeant-at-

Arms. The House then resolved, that such conduct was a grievous aggravation

and iteration of the contenzpt offered to the House by the Appellant, and directed

that he should continue in the custody of the Serjeant-at-Arms until further order

from tlie House. On the 9th of August the House resolved that the Appellant should

again be brouglik to their Bar, and that he [6s] should be required to apologize for

the breach of privilege of 3v;hich he had been guilty. The Appellant was accordingly

placed a t the bar, but he refused to make an apology. The House thereupon passed

a resolution that he should be committed to the gaol of Saint John's, and ordered

the Speaker to make outn the neemsary warrants to the Sheriff and the Gaoler, which

was done, and the Appellant was committed thereon.

The Appellant was brought up, on the 10th of August, under a writ of Anheas

c o i * p s , before one of the Judges of the Supreme Court, and discharged [see Printed

Cases in Privy Council Appeals, Appx. C.].

In consequence of this commitment aiid imprisonment, the Appellant, in

Michaelmas tern1 1838, brought an action of trespass and false imprisonment, in

the Supreme Court of the Island, against the Respoiident Carson, the Speaker, and

Walsh the messenger, and Rent and others, nienibers of the House of Assembly.

The declaration consisted of four counts. The first count was for breaking and

entering the Plaintiff's dwellinghouse on tho 6th of August, and seizing and Im-

prisoning him, f o r the space of four days. The third count mas for assaulting and

imprisoning him generally; and the secouct and fourth counts, were for the battery.

The Respondent, Carson, pleaded, first, the general issue, and, secondly, a special

justification, as Meniber and Speaker of the House of Assembly, and set forth the

circumstances, above-mentioned, aiid the sewral resolutions of the House of

Assembly, in obedienee to which, he averred he had acted.

Similar pleas were put in by the other Respondents.

To these special pleas by Carson, as well as by the otiier Respondents, the Appel-

lant demurred. The [66] Respondents having joined to the demurrers, they were

argued before the Supreme Court, which held them to be sufficient in law, and

directed judgment ta be entered up for the Defendants [Printed Cases u b i sup.

Appx. G., and Appx. to Respondents' Case, Nos. 4 and 51.

From this judgment, the present Appeal was brought, which non' came on for

argument (Jan. 4, 6, and 6, 1841").

Nr. Pemberton, Q.C., and Mr. Henderson, for the Appellant.-The questioli llow

before your Lordships is of great magnitude, involving the liberty of the subject in

the Colonies. Three points are raised by this Appeal : First, whether the House of

Assembly of ~ewfoundland had power to comniit for a breach of privilege, as inci-

dent to the House a s a legislative body ; secondly, supposing such power to exist,

whether it has been rightly exercised in this instance; and, lastly, whether the pleas

contain a complete justification to the action. Now we contend, first, that the

House of Assembly does not possess, by any law, the power of arresting and imprison-

ing for breaches of privilege; and even supposing such power to exist, we subniit

that it can only be exercised against its own members, and not against strangers for

alleged contempts committed out of doors. The first consideration arises out of

the known distinction between conquered and settled colonies. Blankccib v. Galdy

(2 Salk. 411), CampbeZ7 v. Ha71 (20 State Trials, 239). In the former, the polver of

the Crown is paramount; in the latter, the Colonists carry with theni the laws of

their native land, and whatever difference of opinion there may be with [67] r e

* Prt.sent : Lord Brougham, the Pice-Chancellor [Sir Lancelot Shadvi.ell], Mr,

Justice Erskine, and the Right Ron. Dr. Zushington.

226

KIELLEQ V. CARSON [1841-42] I V MOORE, 68

spect to the introduction of some of those lam, the right of eseniptioii froni personal

violence, by any authority, bnt that of the law, is clear and undoubted. ‘‘ No man

shall be imprisoned but by the lawful judgment of h i s peers, or by the law of the

lands ” (Nagna Charta, axid see 25 Ed. 111. c. 3) , i s the great charter of liberty, ap-

plicable alike to Colonists as to En~~ishmen.

It is necessary in the first instance to ascertain the powers o f the House of

Assembly. Newfoundland, is one of the earliest of our Colonies, it is a dependency

of the Crown of England, by riglit of occupancy. Possession was taken in the year

1683, when the laws of England were ~ntroduced, and anzongst them, freedom from

personal -siolence, and continued in force, without alteration, down to the pear 1832.

In tltat year, the present Legislative Assembly was constituted by Letters Patent f rom

the Crown, to the Governor, authorising him to convoke a Legislative ~ ~ s ~ ~ ~ z b l y for

the Island, to consist* of fifteen menhers. The qualification and method of the

election of i t s iziembers were regulated by a Proclamation of the Crown, of the 26th

of July 1832 [see Printed Cases ubi s q ) . Appx. to Respondents’ Case, we. a]. Pre-

vious to this period the sole power of making laws for the G o ~ i e r n ~ ~ e n t of Newfound-

land, was in the Legislature of this oountry. Any law, custoni or usage for the

justification of the act now complained of, has existed therefore. only, since the

year 1632. ]Ft is attempt~d to szpport this privilege of comii i~t t in~ for tontenipt,

by analogy between the House of Commons and thiFt Colonial Assembly. No such

analogy exists. The House of Commons possess the power of commitnient as part

of the /ex e t corwietudo parlimnenti. In Coke’s 4th Institute, 15, it i s laid down

that matters of ~ a r ~ i a ~ e ~ t , are not to be decided by the C o n ~ i ~ ~ i i [68] Laws, but

~ e c ~ r ~ ~ ~ ~ ~ ~ ~ legem et c o n ~ ~ f ~ u ~ ~ ~ ~ ~ ~ ~ ~~~~~~~~~~~~~ The same doctrine i s s i ated in 3

Hawkins P.C., book 2, c. 15, s. 73, and by Blackstoue, I Coni. 164. It is monstrous

t o suppose for an instant, that there can be a lex et ~ ~ ~ ~ s ~ ~ ~ € ~ ~ ~ c l of an Assembly like

~ e w f o u ~ d l a n d , whose constitution existed only since 1532. The principles on which

the English Parliament rests its rights and pririfeses cannot be exteiided to Colo-

nial Assemblies. Their constitution^ necessarily differ. Colonial Assemblies do

rire their powers from the Crown, and are regulated by their respective cl-iarters.

Parliament stands on its own laws, the I P J et conmezcetzcdcl ~ ~ ~ l ~ f f r ? ~ ~ ~ ~ ~ ~ , which are

founded on precedents and inimeiitorial usage. The Crown has no power, by virtue

of its prerogative, to confer on the Legislative Assembly such powers as are pos-

sessed by the Bouse of Commons, for it doos no6 possess such authority itself. The

only grounds on which the power of conimittal is exercised by the House of Commons,

are thus stated by Lord Ellenborough, C.J., in Uzwdett v. Abbot6 (14 East, 136):

‘‘ The privileges that belong to them seem at all times to have been, and iiecessarily

inust be, inherent hi them: independent of any precedent, i t was necessary that

they should have complete personal security, to enable them freely to meet for the

purpose of discharging their important functi and also that they should tiave the

right o f self-~~rotectio~~.” And again, ‘‘ The it of self-~i,otectio~~ iniplies, as a

consequence, the right t o use the necessary means for rendering such protection

effectual. Independent€y, therefore, of any precedent or recognized practice on the

subject, such a body must ti p ~ i w i be arnied with a c o ~ ~ ~ t e n t a u t ~ i ~ ~ ~ t ~ to enforce

the free and independent exercise of i t s own [69] proper functions, whatever those

functions niight be. On this ground i t has been, I beliew, rery generally admitted

in a r ~ u ~ ~ e n ~ that the Eouse of Comnions must be, and is, authorized to zy?move any

imniediate oIxtruction to the due course of i t s own proceedings. But this mere

power of removing actual impediments t o its proceedings would not be sufficient f o r

the purposes of i t s full and effectual protection; it must also have the power of pro-

tccting itself from insult and Indignity, when offered, by punishing those who offer

it :” and the learned Judge goes on again to say, ‘‘ Would i t consist with the dignity

of such bodies, or, what is more. with the immediate and effectual exercise of their

important, functions, that they should mait the comparative tardy result o f a pro-

secution, for the v~ndication of their ~ ~ i y i l c ~ e s froin wrong and insult? The neces-

sity of the case wodd, therefore. upon principles of natural reason, seem to rqiiire

that such bodies constituted for such purposes, and exercising the functions as they

do, should possess the powers which the history of the earliest times shows thaL they

in fact possessed and used.” The Rouse of Coinmo~~s possess this pox-er as a Court

of Judicature, Coke’s 4th Inst. 23; as part of the High Court of Parliament,

227

IV MOORE, 70

the at& regia. After the separation of the legislative body into txo distinct

houses, each retained, to t,his extent, at least, the power that was common to both,

and this power has been recognized a t an early period, confirmed by the highest

authorities, sanctioned by unvarying usage, and recognized by AcLs of Parliament.

The question, whenever the privileges of the Conirnons have been disputed, ha&

always been, whether the particular act was j ~ ~ s t i ~ e d or not, by the lex e t ~ ~ ~ ~ ~ u e ~ ~ ~ ~

~ ~ r ~ ~ ~ ~ ~ e ~ ~ ~ ~ Cer-

tainly not. Lord [TO] Ellenborough expressly puts the right of arrest upon the

ground that Parliament was part of High Court of Judicature (14 East, 1, 36-7), and

that although that character was now divided by the two Houses, and exercised in

fact by but one, yet that it wax only as a Court that i t was originally so possessed.

Mr. Justice Bayley also held the privilege as an incident to a High Court of Judica-

ture (ih. 159). Then if the House of Assembly at ~ewfouI~dland, is not a Judicial

Assembly, i t is inipossible to a~pprehend upon whatz ground, the p~.oposit~on that the

privilege here claimed, is incident to it, rests. If it existed in the Elouse of

Assembly since 1832, i t must have formerly existed in the Council. If the Cro-wn

had the power of constituting the Council as it pleased, and of assigning the number

of the Legislative Assembly, itp could also make a Council with all these powers with-

out a House of Assembjy. Such % position might lead to the exercise of the most

frigl~tful tyranny, for the Council, consisting of a few individuals, might coinniit

arty one who, in their opinion, was guilty of any offence, or, by suspei~dii~g any mem-

ber of their body, introduce a more pliant one in his stead. How could the Crown

delegate to an Assembly like that of Newfoundland such powers as i t does not itself

possess? The Crown may, no doubt, incorporate a body of persons in the Colonies,

or a t home, and invest them with power to legislate for themselves; but in doing

so, it can give them no power to commit and irnprison for contempt. Indeed, there

exists no necessity for such power in an Assembly of this nature. It has not supreme

power even in the Colony, for its acta are liable to disallowance by the Crown. No

assembly has supreme power but the Imperial Parliament. The [TI] East India

Company possessing legislative powers over a territory more vast than our Eouse

of Commons, has not such a, power. The Corporation of the City of London has 110

such power. There are only two instances of such a power, namely, the House of

Commons and the Courts of Justice. Beaumont v. Ba~rett (1 Moore’s P.C. Cases,

59) is the only authority which can be cited on the other side. That %as an Appeal

from a judgment of the Court of Error a t Janraica, a ~ r m i n g a judgment of the

Supreme Court, overruling the general demurrers of the Appellant, to the

pleas of justification pleaded by the Respondent, to an action of trespass

and false imprisonment, brought against them by the Appellant, such imprison-

ment having taken place for a libel which had been resolved by the House of As-

sembly to be a breach of the privileges of the House. In delivering the judgment of

their LordAips, Mr. Baron Parke said ( zb . 76), “ Without adverting for the present

to what has been done by the Assembly from the time ita constitution was given to it

in the year 1680, or relying upon the precedents laid before us, its would appear I

think to be inherent in every Assembly that possesses a supreme legislative authority,

to haTre the power of punishing contempts ; and not only such as are a direct ob-

struction to its due course of proceeding, but such also as have a tendency indirectly

to produce such an obstruction, in the same way as Coui;ts of Record may not only

remove or punish persons a110 actually are interrupting their functions, but may

also repress those v h o indirectly impcdo the admini~ra t ion of justice by disparag-

ing and weakening their authority:” and after adverting to, and quoting the

language of Lord Ellen-[72]-borough in Bzcrdett v. Abbott (14 East, 137), &e learned

Judge proceeds, “ Now if we apply that principle to the Legislative body which ap-

pears to possess supreme legislative authority over the whole of the island and its

dependencies, we must in like manner say that< they have incidentally the power,

not only of punishing direct impediments to their proceedings, but indirect ob-

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

bring their authority into contempt, and that independentl~ of any precedent for

its exorcise. But if we look into the authorities adduced in this case, we shall see

that this power has been exercised mithout dispute, so far as relates do the inl-

prisonxnent of persons for contempt,, from chat period (1680’) down to the present

day: ” and after citing the precedents produced from the year 1686 to 1709, of the

228

KIELZEY 21. CARSON f1841-421

Es the House of Assen~bly of ~ewfoundland a Court of Justice?

KIPLLPP v. CARSON [l8 4 1-42] I V MOORE, 73

exercise of the authority by the Bouse of Asse~nbl~ and the Act of the Colonial Itegis-

lature, 1 Geo. E., c, 1, paased in 1328, which direeted that ‘‘ all laws and statutes of

gland as have been at aiiy time esteemed, iirtroduced, and accepted, or receivcd,

as laws in the island, should, and were thereby declared to be, aud coiitinue, laws of

Nsr ~ ~ j ~ t y ~ s Island of Jamaica for ever,” observed that, “ on this the legality of the

power in question might be s u p p o r ~ d , if it did not belong to the Assernbiy, as \re

think it did by law, as a necessary incident to its ~ e g ~ s l a t ~ v e a ~ i t ~ ~ o r ~ t y . ” The deci-

sion in that case may be supported upon tlie ground of usage since the year 1680.

It cannot affect or govern the present case. The course adopted to justify the

claim made here, lias been to refer to instances of the exercise of a similar power by

other Houses of Assembly. Precedents have been brought forward from the Jour-

iials of the 1733 Kouses of Assembly of Barbadoex, Antigua, ~ o n t ~ e r r a t , the Baha-

mas, Kow Scotia, New Bruns.rvich, and Prince Edward‘s Island (these preceden~s

were printed in a ~ u p p l e ~ ~ ~ e n t a l Appendix [Prinked Cases in Privy Council Ap-

peals]), The earliest period of the exercise of this power by an37 of these bodies

was by the House of Assembly of Prince Edx-ard’s Island, in the gear 1812. Bar-

badoes vas founded in the peal 1649, but the first instance of the, exercise of this

power by the ~ s s e m ~ l y i s in 1821. If the pcrwer of colnmittal existed 11s a necessary

incident to the House of Assemhly P ~ O K D 1649, how came i t that it. was never cxer-

cised till 1821’b With respect to Antigua, that colony was settled in 1631, inut 110

instanc?e of coni~~i t ta l for c o n t e ~ p t could be found till 1819, and that was again81 a

ilneniber of the Wonse of Assembly. In ~ o ~ ~ t s e r r a t , there vas no instance of con-1-

mittal of a person who did not appear to be a member of the Kouse. In Nova Scotia,

the earliest instance was in 1818, and in New Brunswick in 1832. But the usage

in one colony, even if it existed, is no authority for the power being in anothcr-

If the doctrine in ~ e a ~ ~ ~ ~ c v. ~~~~~ ~~~ Moo. P.C. 691 i s to be applied, the power is

just as incident to the Council composed of three persons, as the whoIe Legisla.btive

A ssembiy.

11. The mode in which this su~posed riglit has Been exercised.--Tbe wohole pro-

ceedings >\-ere irregular. The A ~ p e l l ~ n t was taken into custody without being

summoned, and convicted vithout being heard, or tlie deposition of a single vitness

taken on oath. It appears that t~ Coi~mittee of the Eouse of Assenibly having re-

solved, on the complaint of one of izs mexrtbers, that a breach of ~ r ~ ~ i l e ~ e was coni-

mitted, ordered the individnzll so ~ r ~ n s ~ i . e s ~ i i ~ g into custodyI kept him in custvdy

for two days, ordered him to be ~ t . o u ~ ~ ~ t to the Bar of the Eouse to make an apology,

and, this [?is] latter coinniand not being complied with, directed that he should be

coinmitted until such apology was made. The warrant

was not under seal, and does not, record that any adjudication or conviction had

taken place; and moreover. it, contains matter not justified by the previous proceed-

ings. $Then the Appellant was brought to the Bar of tlie House of A s s e ~ b l ~ , he was

detained two days, though the warrant on which tie appeared was spent, and B

resolution of the Eouse for detaining lzini until ho made an apology was no niote

operative than a judgment of n Common LAW Court would be without a wri t .

S u ~ p o s ~ n g the power of coinmi~meK~t to exist, the manner of exereisin6 it in the

present instance was illegal, and contrary to every principle of natural justice and

positive law. Neither can the second warrant be sustained-it is bad in law on two

grounds ; fh t , it does not follow the resolutioii of the Bouse; and, secondly, accord-

ing to law, itz is void, being for an indefinite period. ~~~~e~~ v. B&hoc$ (14 East*

149-50), ~ ~ ~ ~ c ~ ~ a ~ ~ v. ~ ~ ~ s ~ r ~ (9 Add. and Ell. 11, and the a ~ ~ t l i o r ~ t ~ e s there cited,

show the extent to which this power can be exercised. Privileges of the Nouse of

~ o ~ ~ i o n s are as much a part of the law of the land as the Statute, ~ccles~astical , or

Adiniralty laws-all of which are noticed and determined by Courts of Common Lam.

1x1. The plea is no justification.--The rule of law i s that the, plea must justify

tile acc complained of. Gregory v. Bilk (8 Term. a%), Du23;na Q. Maya (1 Saunders,

286, Note), ~~~~~~~ v. ~~~~~~~~~ (5 Bing. N.C. 208 j S.C. 1 Scott, 143), Greene v. J o w s

(1 Saunders, 291). The judgment conlplained of must faii, even on this ground of

objection. t75’J The pleas are bad, as they purport to justify without confessing a

battery.

Mr. PVP. D. 1321, Q.C., and Xr. ~ l e ~ ~ i n g , for the ~ ~ ~ o n d e n t s .

I. The power of committal for a violation of privilege is i i e c e s s ~ ~ ~ l ~ n h e ~ e n t in

every Legislative Assemb~y~ Such authority

.

There mvits no ad.judication.

~ e ~ ~ ~ ~ n ~ ~ ~ v. ~ a r ~ e ~ c [X &loo, P.C. 591.

229

is abso~~itely essential, as we1 for the clue exercise of the functions of a Legislative

body, as for enabling those who conipose it, e ~ c i e n t l ~ and independe~~t~y to perform

the duties imposed upon them. It is an essential incident to the constitutional

func~ io~ i s of s House of Assembly, The House of Assembfy of ~ewfoui~dland i s a

Legislative body convoked by Co~mission and instructioiis from tho Crown. They

have the power of making local ordinances not repugnant to the law of England

(1 ~ ~ a c k s t ~ n e , Com. 108). It cannot he disputed that the Crowri has the power of

creating a local jurisdiction, U w r m v, ~ ~ a ~ ~ ~ l ~ (Showers, Par. C. 24), or of fo~lowiK~~

its subjects, by granting a local Legislature in the country to whicli they have

emigrated, which should exercise supreme ~ ~ u t ~ ~ ~ r ~ t y so far as is consistelit with their

depe~ide~~ce on the mother country. We txdniit, the argument of tfie AppeI~ant, that

English settlcrs carry with them their right,s according to the English Law, varied

only by local cireui~istances~ They have, as a consequence, the right to Courtx of

Justice for the purpose of a d ~ i n i s t e r ~ n ~ the law, and it caanot be questi~ned that

those Courts have the same power of c o i ~ i ~ ~ i t t , ~ n g , for eontempt as the Courts of

EngIand. Settled colonies have ~t right to a ~ ~ e g i s l a t u r ~ PZ ~ e ~ e ~ ~ ~ ~ ~ ~ $ ; for Acts

passed in the mother [76] country s u b s ~ ~ u e n t ~ y to the settIement do not bind the

colony unless the colony is expressly named. As a colony, t~ierefoz,e, requires new

laws, it follows that it has a right to a Legislative Assembly, and one as like to the

Houses of Parliament as cii-cu~stances admit. The Canada Act, (31 Geo. IIE., c. 32,)

which esta~)l~shed the Legislative kssembly there, prov~ded also for an hereditary

Wouse and titles of nobility. It i s true, this was never acted upon, but it shows

that the intent~on was to assimilate it as nearly as possible to the Legislative body in

this country. This right to a Legislature, i s an inchoate right in every colory,

r ~ u i r i n g no Charter o r Act of Parliament to call it into existence: the mere wili

of the Sovereigp, eqressed in a letter of struc ructions to the Governor, i s su8cient.

As regards thc right of convoking a Legislative Asi.enibIy, no distinction exists between

a settled or conquered colony (Chalmers’ ~ p i n ~ o n s [I]. 222-3). No ~ u ~ ~ ~ o r ~ t y earl:

be prod~iced to overrule the universal principle that a House of Asse~~bly was not

as powerful in a settled as in a eon~~ieTed country. It has beeii admitted tfiat this

power has been exercised in Jamaica, but then the Appellai~t’s ~ o u ~ s e l account for

that fact by saying that it was not+ a privilege incident to a popu~ar A ~ s e ~ b l y , but

exercised in virtue of the full and c o ~ ~ ~ ~ e t e Legislative power of the Crowi over a

c o n ~ ~ e r e d country; but &hey should have gone further, and shown in wliat respt?t

the House of Assembly of Jamaica W R S gifted with powers not possessed by ~ewfound-

land, The Act of 1832 e s ~ b ~ i s h e d the present House of Assembly; but it ?vas not a

new instituti~n-it had been in action for centuries; i t s powers known and its

attributes settled by Iong experience. [77] The question, then, is narrowed, to what

are the incidents of a General Assembly. In Rlr. Burke’s account of European

Anierica (a VoI. 296-7), i t is said that the first, colony which was settled was that of

~ j i i . g i ~ ~ ~ a , which was governed at firs$ by a President and Council appointed by the

Crown. The colonists were, however, afzervrards ‘‘ empamered to elect representatives

for the several counties in which the province is divided, F;ith privileges r e s e ~ b l i i ~ g

those of tlre House of C o ~ ~ ~ ~ ~ o i i s in ~ n ~ ~ ~ i ~ d . ” Again, in Edwards’ History of the

West Indies (2 Sol. 314), a work of co i i s~derab~~ rep~i ta t io~ , it is laid down “that

~ r o ~ ~ i n c i a ~ ~ a r ~ ~ a i ~ ~ e n t s o r Colonial Assen~blie~ being thus esta~lished and recognized,

we shall find that in their f o r ~ a t ~ o ~ ~ , mode of proceeding, and extent of jurisdiction

within their OWD circle, they have constmtly copied, and are required to copy, as

nearly as c~i”cui~~s tan~es will permit, the eTanipIe of the Pa~.lianient of Great Britain.”

He goes on furthei- to say, ‘‘ They con~mit for e o n t e ~ p t ~ ; and the Courts of Law

have refused, after solemn argument, to discharge persons c o m ~ ~ i t t e d by the Speaker’s

warrant.” Sow, this author it^ to conmiit for contempt has been i~~variably exercised

by all the Colonial Houses of Bssenibly whene-r-er they may have been called upon i o

exercise it. In the American Archives in

the course of printing, by tfie order of the Congress (Vot. I. p. 1119-20, Brit. Mus.),

under the date of the year 1775, the Journals of the House of Asse~nbly in New Jersey,

nne ~ l ~ r d o c ~ mas conimitted by the House for contempt, in send in^ B c ~ a I ~ e n g e

tu WEB of the members. Another case-that of Cook and ~ ~ a e n a u g h t e ~ i ~ c c u r r e d

[78] in Jamaica in I776 (2 Edwards’ XIist. of Vest Indies, 4221, of a c o ~ ~ ~ m ~ t t a l for

contei~ipt by the House of Assembly. The powers possessed and exercised by the

230

It does not rest merely upon principle.

KIELLEP V. CARSON [ i 8 4 f - 4 21 IV IMOORE, 79

Houses of Assembly in the %est Indies have been equally enjoyed by siiailar Iwdies in

whatever colonies they were erected. The extracts from the Journals of the Houses

of Assemblies of New ~ ~ u n s ~ i c k , Nova Scotia, and of Prince Ednwd’s Island, which

are prixkted in the Supplemental Appendix, prove the exercise of the same authority

by the Legislative Assemblies in those colonies. Evidence of usage cannot be

stronger or more conclusive. The precedents of tlie exercise of the power to coinmit

in the colonies are not numerous, but they are satisfactory. In R q p m v. Patty

(2 Ld. Ray, 110-9), which was the case of an inquiry by the Court of King’s Bench

into the proceedings of the House o€ Connnons, Justice Poxvys says, “ The reason why

there were: no precedents of that kind was very obvious, viz., that it would be un-

reasonable to put the Judges upon d e t e i - i ~ ~ i i ~ ~ n ~ the privileges of the Bouse of

~ o n i n ~ o n s , of tvhich pririleges they have no account nor ally footsteps in their books :

that the House of Coinmons have the records of them.” It is contended, 011 tlie other

side, that the power in the Bouse of Commons to commit for contempt is derived

from the ancient aiila regis. This cannot affect our argument; the House of

Commons is no further a Court of Justice than is a Colonial Mouse ef Assembly.

The principle that the power of c o ~ i n ~ i t ~ e n t for. c o n t ~ ~ ~ ~ ~ ~ ~ i s iiiciderit to high

d e ~ i ~ e ~ - a t e ~ s s e ~ n ~ l i e s , is fully r e c o ~ n ~ ~ e d in Bwrleft s. Abbott (1 i East, IS?), Benzi-

mont ‘c. Barretf (1 Moore, P.C. Cases, 76). This E791 latter case WRS adopted by

Lord Denman ia The Queen v. Gorsett (3 Per. and D. 362), and the same principle

is recognised in Ferrier’s case (I Hats. I’re. 56, bi), The King v. Pa?dkner (2 Cvom.

M. and R. 525). The whole of the authorities upon this point are collected in

Stoclrdaale v. Namard (9 Add. and Ell. 1). The case of AT&) son F. Dztnn (Wheaton,

204, N.S.) was a commitment by the Congress, of a stranger for contempt. By tlie

American Coi~stitut~on, the Corigre$s hare no power but that spw&diy delegated

to it, the residuum of power reni~iniiig in the separate Sovereign States. By that

~ o n s ~ ~ ~ t u t i o n , power to arrest arid commit for contempt w a s enpressly given to it

over its nxembers, but uo such p ~ e r \\’as given over strangers: yet it was held in

Anderron v. D u m , that such power was necessary and incident to the functions of

Congress. No act of Parliament eyer gave the House of ilssembly of Jamaica the

power to commit, pet they exercised the power as being inherent in the Supreme

~ e g i s ~ a t i v e authority. & ~ d e t t v. Abbott

[14 East;, 1311. An attempt, however, has been made to d ~ s t i ~ g ~ ~ i s ~ ~ Beazcmont v.

Barrett from the present case, by reason that Jamaica was a conquered colony,

and Newfoundland a settled colony. It has been ex-

pressly held by Lord Mansfield, in Hall v. CampbdE (Cowpers, 213 ; Y.C. Lofft, 655 ;

20 State Trials, 326-i), that Jamaica was not, a conquered colony. That learned

Judge said, that after the conqiiest, and before the settlement of the colony by the

English, “ all the Spaniards having left the island, or haviiig been killed, or driveir

out of it, the first settling tvtts by 8x1 EngFsh colony, wlia, under the authority of

the Xing, planted a vacant island belonging to hini in right* of his Crown,’” and

[SO] that it n-as, tlierefore, to be considered as a planted colony. It must be put

upon the same footing as Newfoundland. Neither i s this power confined to Legisla-

tive Assemblies or Courts of Law. Cropper

-r. E o r t w (8 L). and R. 166), Beizwtd v. Vatso?& (3 M. and S. I), illayler P. Lamb t i

Taunt. 63). 2 Hawkins, B. 2, S. 3 . 2 Rales, P.C 122. Courts of E ~ ~ ~ ~ y - ~ e ~ e s l e ~

v. Dzske of Becmfort (2 Russ. and iYyl. 639), fn t he -matter of t he Lvdloz~~ Charities

( 2 Myl. and Cr. 316)-and the Ecelesiasticd Courts-Burlee v. Barlee (1 Add. Ecc.

Rep. 301)-not being Courts of Record, also commit for contempt. I t is not denied

that the House of Assembly, by its constitution, has Supreme Legislative power in

the island. Why, then, if it possess the greater power, should it not possess the less,

and that one so necessary to the due performance of its duties and independence of

its members? The power in question i s not likely to be abused ; it i s subject to the

checks of prorogation and dissolution. There i s no analogy between ~ o r p o r a t i o l ~ ~

and Legislkttive Assemblies. Corporations have no power ro preserve t-heir independ-

eme from the Crown; but Houses of Assembly stand between the Crown and the

people, as the Eouse of Commons does. A House of Assembly cannot perforin i t s

functions without the same powers as the House of Comnions; and fronz the tenor

of the Royal instructions (Clark’s Colonial Law, 435) to the Governor of Keafound-

231

B e ~ ~ 6 ~ ~ i o ~ t v. .hrre t [I Xoo. P.C. 591.

This objection is untenable.

Justices of Peace commit for contempt.

IV .MOORE, 81 KIELLEU 11. CABSOIS [ 184 1-42]

land accompanying the Commission, it was manifest1-y the iritention of the Crown

to confer similar powers upon the Nouse of Assembly.

If only irregularly exercised, the

objections urged are of no weight, [si] because each Cour-t judges of its own proceed-

ings. Was it meant to be said that there was no jurisdiction in the House of

Commons to commence by taking a party into custody? It is true that, in the

exercise of their discretion, this i s sddont. dona; but that is not the question ; the

question is, whether they have jurisd~ctior~ or not. Suppose there should be a riot,

or a dist,~irbance, a t the door of the House, and a ~ i ~ ~ s s e n g e r should go out to arrest

the parties, would it be necessary that he should first ascertain the names of the

rioters, and sunmion them? If a con-

tenipt were committed in a Common-Law Court, they would order the transgressor

into custody without a warrant of commitment. If the

House have a right to coninience by arrest?, it is only matter of discretion vhether

they exercise that right in the first instance or not. Courts of Law could make a rule,

i f they pleased, thnt; a party be attached in the Erst, instance without showing cause.

The Respondent >\-as brought up in custody-not in execution : the House resolved

itself into a committee, that is equivalent to reporting to the House. The Tarrant

is good. Lord hfansfield, in @ i d e f t

v. Abbott (4 Taunt. U T ) , said, on an objection to the Speaker’s warrant, chat it was

enough if the warrant stated it, to be for. conte i~~p~. In Lord S h ~ f t e s ~ ~ ~ ~ r y ’ s Cases

(6 How. St. Tri. 1269, 1271; S.C. l Mod. Rep. I&&), the w a r ~ ~ a ~ ~ t was general.

tarra rants need noi be under seal. Instances are

nIirneroi~s in the Journnis of the Rouses of Lords and Cominoas, of parties being

obliged to apotogise. In llloszey v. Lench (19 I-Xow. St. Tri. 1002; S.C. 3 Burr. 1742,

and 1 Wm. 81. 554), a list of general warrants i s set forth. The form of at-[82j-

tachments used in the superior courts of Westminster, which are upon mesne process,

are general (Tidd‘s Pract. Forms, p. 63). A d ~ n ~ t t ~ n ~ that the last warrant did not

follow the resolution of the House, yet it is immaterial, as it was merely for the

rcguIation of their. own proceedings. When the Bespondent refused to make an

apology, the Speaker did what he had a perfect right to do-directed ths Sheriff

to take him i n to custody until lie made an apology. By an Act of Parliament of

Canada, Courts of Justice had the power io transport for life. In the late case of

The Canadian prisoners (5 Mee. and Wel. 32), the Court transported certain persorw;

for fourteen years, to comnienee from their arrival in Van Dieman’s Ljand. Kow,

this was for an u ~ c e r t a ~ i ~ term; yet it was held that, as the Court could traasport for

life, the lesser power was included in the greater.

111. The point of pleading is subord~na~e to the portan ant point really a t issue.

If the plead in^^ are insu~cient , why was not such objection t* k en in the Court

below? where, if sustained, me should have r?o.ied to amend.

11. This power has been vel1 exercised.

Xo ; they would be ~ r o u g h t in i ~ ~ m e d ~ ~ e l y .

2Khg v. G l e d (1 Salk. 349).

~ ~ ~ ~ u ~ ~ o ~ ~ ~ v. Bnwett (1 Moore, P.C. Cases, SO).

Keg. v. P a f y ( 2 Ld. Ray, 1105).

Mr. Pwnberton replied.

The Appeal was, by the direction of their IJOPdShips, reargued by one Counsel on

each side (23rd May 1842); by Mr. Henderson, for the Appellant, and Xr. M, 1).

Hill, Q.C., for the Respondent.

In addition to the awthorities referred to in the pre>rious argument, Calvin’s

Case (Coke’s 7 Rep. 161) ; 2 Nallibudon’s Elistory of Nova Scotia, p. 324 ; Gordon’s

History of New Jersey, 337 ; Pow.nall’s History of the CoIonies, p. 60 ; Woodstock’s

~OK~st i tut io~~ of the British Colonies, p. 141 ; The Commission for establishing a

Legislative Assembly in ~ewfoundland, 26th July 1832, and the ~ n s t r u c - ~ S 3 ~ - t ~ o ~

from the Colonial Oflice thereon [see Printed Cases, Appx. t o Respondent’s Case, No.

21; Clark’s Colonial Law, p. 435; and the case of Upper Canada, P a r l i a ~ e n t a r y

papers, 182S,---were cited and relied upon.

Mr. Baron Park0 (Jan. 11,1843).-The great i m ~ o ~ a n c e of the principal quest-ion

in this cas0 induced those of .their Lordships who heard the Erst argument, to request

that a second might take place before themsehes and other members of the Judicial

Committee. The case has been again argued befwe the Lord Chancellor, the Lords

Brougham, Denman, Abinger, Cottenha~n~ and Campbell, the Vice-Chancellor of

England, the Lord Chief Justice of the Common Pleas, Mr. Justice Erskine, the

Right Eon. Dr. Lushington, and myself ; and I have been instructed by their Lord-

238

KIELLE-Y V. CARSOX [1841-42] IV MOORE, 84

ships to state the reasons for the advice which they will give to Her Majesty to

rererse the Judgment of the Court below.

That Judgment was given in favour of the Defendant upon a demurrer to

several special pleas to an action of trespass for false imprisonment, by which the

acts complained of were justified by the Defendant Carson, as Speaker of the House

of Assembly of Newfoundland, by other Defendants as Members of that Rouse, and

by one as messenger in aid of tho Serjeant-at-Arms, upon an arrest and commitment

for an alleged breach of privilege of the House.

Several objections were takon of a formal nature to these pleas, which i t is

unnecessary to state, as the opinion of their Lordships is not founded upon any of

those objections. The main question raised by the pleadings, and applying

equally to the case of all the Defendants, was whether the House of Assembly had

thapower to arrest and bring before them, with a view [84] to punis~~ment, a person

charged by one of its Nembers with having used insolent Ianguage to him out of the

doors of the House, in reference to his conduct as a Member of the Assemb~y-in other

words, whether the House had the power, such as is possessed by both Houses of

Parlianiexit in England, to adjudicate upon a complaint of contempt or breach of

privilege. It is indeed stated in the plea of the Defendant Carson, and that of the

other Defendants, members of the House, that something occurred which might

amount to a contempt, committed in the face of the Assembly, by the use of the

violent and threatening words to one of the members then present, in his place; but

each plea also justified the original arrest of the Plaintiff below upon a warrant

issued by the Speaker, founded on the cOrnplaint of a breach of privilege committed

out of the House: and if the House of -issembly had not a power to issue that

warrant, this part of such plea is bad ; arid as each plea is entire, the whole is bad.

The question, t>herefore, whether the House of Assembly could commit by way of

~unishmenT, for a contempt, in the face of it, does not arise in this case.

Their ~ r d s h i p s are of opinion that the souse of Assembly did 1lQt possess the

power of arrest with a view to ad,judication on a c~nipIaint of contempt committed

out of its doors, and consequently that the judgment of the Court below must be

reversed.

In order to determine this question, and to ascertain what the legal powers of

the Assembly were, it is proper to consider first, under what circunistances it was

constituted, and what was the legal origin of its powers.

Newfoundland is a settled, not a conquered colony, and to such colony there is

no doubt that the settlers from the mother-country carried with them such por-[85]-

tion of its Common and Statute Law as was applicable to their new situation, and

also the rights and immunities of British subjects. Their descendants have, on the

on0 hand, the same laws, and the same rights (unless they have been alterkd by

Parliament) ; and on the other hand, the Crown possesses the same prorogative and

the same powers of Government that it does over its other subjects : nor has it been

disputed in the argument before us, and, therefore, we conc;ider it as conceded, that

the Sovereign had not merely the right of appoint in^ such n i a g ~ s t ~ a ~ e s and estab-

lishing such ~ o ~ p o r a t i o n s and Courts of# Justice a8 he might do by the C o ~ ~ ~ ~ ~ o n Law

at home, but also that of creating a focal Legislative Assembly, with authority,

subordinate indeed to that of Parliament, but supreme within the limits of the

colony, for the government of its inhabitants. This latter power vas exercised by

the Crown in favour of the inhabitants of Newfoundland in the year 1532, by a

Commission under the Great Seal, with acconipanying instructions from the

Secretary of State for the Colonial Department; and the whole question resolves

itself into this,-whether this power of adjudication upon, and comniittiiig for, a

contempt, was by virtue of the Coinmission and the instructions legally given to the

new Legis1ati.i.e Assembly of Nexvfoundland. For under these alone can it have any

existence, there being no usage or custoin t o support the exercise of any power what-

ever.

In ordkr t o determine that question, we must first consider vhether the Crown

did in this case invest the local Legislature with such a privilege. If it did, a further

question would arise, whether it had a power to do so by law.

If that power was incident as an essential attribute &6] to 8 Legislative

Assembly of a dependancy of the British Crown, the concession 011 both sides that the

Crown had a +ight to establish such an Assembly, puts an end to the case. But if i t

P.C. IT. 233 8a

IV XOORE, 81 KlELLEY 21. CARSON [1841-42]

is not a legal incident, the11 it was not conferred on the Colonial Assenzbly, unless the

Crown had authxi ty to give such a power and actually did give it.

Their Lordships give no opinion -upon the important question whether, in a

settled country S U G ~ as ~ewfound~ai id , the Crown could by its prerogative, besides

creatiag the Legislative Assembly, espressIy bestow upon it an a~it~iority, not

~ncidexita1 to it, of con~mit t~ng for a coi~ten~p~-an aut~iority, materially iiiterfei~iiig

with the liberty of the subject, and much liable to abuse. They do not enter upon

that question, because they are of opinion, upon tlre construction of the Coiii~~ission

and of its accompanying document, that no such authority was meant to be com-

niunicated to the Legislative Assembly of Newfoundland ; and if it did not pass as

an incident, by the creation of such a body, it was not granted at all. This appears

E O be clear from the consideratiorr of the Instruments.

By the C o m ~ ~ ~ ~ s s ~ o i i for the e s t a b ~ i s l i ~ ~ ~ ~ the Legislative Asse~~bly, dated the 26th

July 1852, His late Majesty King ~ ~ i ~ ~ ~ a i ~ i the ~ o u r t h aL~tl~orize~ tlie Governor, with

the advice and consent of the Council OS the Island, from time to time, to sunimon

and call General Assemblies of tlie freeholders and l~ousel~olders witliin the Island,

in such manner and fornz, and according to such powers, instructions and authori-

ties as were granted or appointed by the general instructions a c c o n ~ ~ a n y ~ x ~ g the

C ~ ~ m i s s i o n , or accordiug to such further powers, insi~~uctio~is or a ~ i t l ~ o r i t ~ e s as

should at any tinre t ~ ~ e r e a f t e ~ b granted or appointed under H i s [87] Xajesiy’s

sign ~ ~ i a n u a ~ and signet, or Order in Council, and that the persons thereupon duly

elected should take the oaths, and should be called, and declared the General Assembly

of the Island of ~ e w f o u ~ d ~ a i r d ; and the Governor, with the advice and consent of

the Council arid Assembly. or the major part of t,Eiein respectively, should have full

power to makc, constitute and ordain law, statutes and ordinances for the public

peace, welfare and good government of the Island and its dependencies, and the

people and inha~i tants thereof, and such other as should resort thereto, wliich laws,

etc. were to be as m a r as might be to the laws and starutes of the United ~ i n g d o n i ~

and subject to the approbat~on of Ris M a j e s t y and to the negative voice of the

Gnvernor .

~ccompai~ying this C o ~ i m i s s ~ o ~ ~ mas a despatch from Viscount Goderich (nov

Earl of Ripon) containing instructions (see Clark‘s Goloiiial Law, $35) to the

Goxrernor for the regulation of his conduct, upon which sonie reliance was plnced

on the argument at the Bar, as affording evidence of the intention of tlie Crown to

confer the power in question upon t i e House of Assembly. The C o ~ ~ i s s ~ o K ~ itself

where such tin authority would naturally be expected to be found if the Crown had

intended to confer it, is entirely silent upon this subject, nor does it grant any of

the privileges of the British ParIiament ; and the terms used by the Earl of Ripon’s

lletter haye probably roference to the nmde of conducting business and the forrns of

procedure, which are to be assimilated to those of the British House of Coinxiions-

at all everits, terms so vague and general could nerer have been used with the

inte~ition of giving the powers of c o m ~ i t ~ ~ e ~ i t , and other privileges of so ~ ~ n p o r t a n t

a nature, [sf$] if the n~~thori t~T of the Crown was required to bestov them by a special

grant.

The whole question then is reduced to this,--whether by Ia’tv, the power of COM

mitting for a contempt, not in %he presence of tlie Assembly, is incident to every

local Legislature.

The StatlJte Law on this subject being silent, the Common Law is to govern it ;

and what is the ~ o m ~ i o n , L a ~ ~ , depends upon p r i ~ ~ c i ~ J e and precedent.

Their ~ ~ o r ~ s h ~ p s see no reasoff t o think, that in the principle of the C o n ~ m o ~

Zarv, any other powers are given them, than such as are necessary to the existence

of such a body, and the proper exercise of the functions which i t is intended to

These powers are granted by the very act of its establishment, an act which

on both sides, i t i s admitted, it was competent for the Crown to perform. This i s

&e principle wjlich governs all legal incidents. (( Q z ~ ~ z ~ o Lex nlzptiid eosiceclil,

c o ~ c e ~ e ~ e ~~~~~~u~ et ? ; t $ ~ u d , si?^ quo r-es ipsa esse nun potest.” In c o n f ~ r ~ i ~ ~ t y to this

principle we feel 110 doubt that such an Assembly Bas the right of protecting itself

frorn all iniped~meiits to the due course of its proceeding. To the full extent of

every measure di ich it may be really necessary to adopt, to secure the f ree exercise

of their Legislative functions, they are justified in acting by the principle of the

234

KIELLEY V. CARSOW [ 1 8 4 I - 421 IV NIOORE, 88

Comnzon Lam. But the power of punishing any one for past misc~nduct as a con-

tempt of its authority, and a d j u d ~ c a ~ ~ l l g upon the fact of such coritempt, and the

measure of punishment as a judicial body, irresponsible to the party accused, what-

ever the real facts may be, is of a very different character, and by no means

essentially necessary for the exercise of its functions by a local Legislature, whether

representative or not. E891 A11 these functions may be well performed without this

extraordinary power, and with the aid of the ordinary tribunals to investigate and

punish conteniptuous insults and interruptions.

These powers certainly do not exist in corporate os other bodies, assembled, with

authority, to make bye-laws lor tlie government of particular trades, or united

numbers of individuals. The functions of a Colonial T&gislature are of a higher.

character, and it is engaged in more important objects ; but still there i s no reason

ishy it should possess the power in question.

It i s said, however, t;bat this power belongs to the Bouse of Commons in England ;

and this, it is contended, affords an authority for holding that it, belongs as 8 legal

incident, by the Common Law, to au ilssenibly mith analogous functions. But the

season why the I-louse of C o ~ i i n ~ o ~ s has this power, is not because i t is a representati-re

body w7ith legislative functions, hut by Yirtue of ancient usage and prescription ;

the lex e t c ~ ~ ~ ~ ~ ~ ~ u ~ ~ ~ a ? l ~ ~ ~ ~ e ~ t ~ , which forms a part of the Common Law of the

land, nnd according to which the Righ Court of Parl~ainent, before its division,

and the Mouses of Lords and Comnzons since, are invested with uianj7 peculiar

privileges, that of punishing for contempt being one. And, besides, this argu-

ment from analogy would prove too much, since it would be equally available in

favour of the assumption by the Council of the Island, of the power of commit,ment

exercised by the House of Lords, as well as in support of the right of impeachment

by the Assembly-a claim for vhicli there i s not any colour of f o u ~ i d a ~ ~ o n .

Nor can the pmer be said to be incident to the Legislative Assembly by analogy

to the English Courts [go] of Record which possess it. This Assembly is no Court

of Record, nor has i t any judicial functions whatever ; arid it is to be remarked,

that all those bodies which possess the power of adjudication upon, and punishing

in a summary manner, eontempts of their authority, have judicial functions, and

osercise this as incident to those which they possess, except only the Nouse of

~ o m ~ o ~ ~ s , whose authority, in this respect, rests upon ancient usage.

Their Lordships, therefore, are of opinion, that the principle of the Cominon

Law, that things necessary, pass as incident, does not give the power contended for

by the Respondents as an incident to, and included in, the grant of a subordinate

Legislature.

I t was liowevei- argued that in other colonies, tho Legislative .ilssexrilrlles exercise

the power of committing for breach of privilege without objection, and that the

usage in this respect was Sood evidence that such paver was an incident attached by

the Common Law, though not on the ground of necessity. And no doubt this argu-

ment would have had much weight, if there had been many Zegidatures situate

precisely as t h i s is, and the usage to exercise the power of committal for breach of

privilege had beca frequerit, and the acquiescence in its exercise long and unixrersal,

and that usage could have been explniited only on the ground that tlie power was a

legal incident. But no such usage has been proved, and the constitLi~io~~ and practice

of different colonies, and the prerogative of the Crown with reference to tliat,, differ

so much, that there is very little analogy between them. axid no inference can safely

be deduced from the law, as understood, in one, to guide us with respect to another.

In some, the very exercise of the pomer, with the s a n c t i o ~ of the [91] tribunals, and

the acquiescence of the public for a long period of time, map raise a presumptiori

that the power has been duly conmurlicated by law. Rut in this case, we have the

simple question to decide, without any usage, any acquiescence, ox any sanction of

the Courts of Law, except in the very case in which we are now called upon to affirn;

or reverse the Judgment of the Court below. It reniains to be considered how t~xe

question stands 011 express authority j and uiiless there be that ~ a ~ i s ~ ~ c ~ o ~ y authority

expressly in favour of the power, we must hold that the Common Law does not

confer it.

There is 110 decision of a Court of Justice, nor other authority, in favour of the

right, except that of the case of ~e~~~~~~ v. Barreit [X Xoo. P.C. 591, decided by the

235

IV MOOEE, 92 BUTTS ( J N RE) [ 1 8 421

Judicial Conimittee, the nienibers present being Lord B r o ~ i g ~ i a ~ i ~ , ,991.. dustice

Bosanquet, Mr. Justice Erskine, and myself. Their Lordships do not consider that

case as one by which they ought to be bound o.n deciding the present question. The

opinion of their Lordships, delivered by myself, imniediately after the argument

was closed, though it clearly expressed that the power was incidental to erery

Legislative Assembly, was not the only ground on which that judgnient was rested,

and, therefore, was in some degree extra-judicial; but besides, it was stated to lie

and was founded entirely on the dictum of Lord Ellenborough in Buadett v. Abbott

[14 East, 1371, which dzcturn we all think cannot be taken as an aubhority for the

abstract proposition, that every Legislative body has the power of committing for

contempt. The observation was made by his Lordship, with reference to the

peculiar powers of Parliament, and ought not, we all think, to be extended any

further.

We all, therefore, think that ihe opinion expressed 1921 bF myself in the case of

3 e ~ ~ ~ ~ ~ t Y. Barrett [l Moo. P.C. 591 ought not to affect our decision in the present

case, and there being no other authority on the subject, we decide according to the

prineiple of the Common Law, that* the House of Bssembly have not the power

contended for. They are a local Legislature, with every power reasonably necessary

for the proper exercise of their functions and duties, but they have not what the?

have erroneously supposed themselves to possess-the same exclusire privileges

which the ancient Law.of England has annexed to the House of Parlianient.

The Judgment will be reversed, and there must be a Writ of Inquiry of damages,

unless the parties can agree among themselves upon some sum-they had better do

that. They ought to consider that it was EL mere question of right to be tried, aiid,

therefore, probably they will be able to do that. A11 we can do is to remit the

record back to the Court below for inquiry.

[Mews’ Dig. tit. COLONY, I. GENERAL PNNCIPLES, 6. Legi.sZslrctures; also tit.

P A ~ ~ I A ~ ~ N T , A. IR EXRAL ~ A ~ A ~ E ~ ~ ~ T , 2. Powers of. Followed in Pentois

v. ~ a ~ p t o ~ ~ 1855, 11 Moo. P.C. 347; and Doyle v. Fakoner, 1566, L.R. 1 P.C.

325, 4 Moo. P.C. (N.S.) 203, on point as to committal by CoLoiiial Legislature:

aiid see Piidlips v. Eyre, 1870, L.R. 6 Q.R. 1 ; Forsyth‘s Cas. Comt. Law, 25;

and charge of Blackburn J. in Reg. B. Eyre, 1868, p. 66.1

ON PETITION FROM BRITISH GUIAXA.

IN RE BUTTS * [June 20, 18421.

Bz-pa rt e.

In ranking Creditors under an execution sale, the Court of British Guiana

declared by definitive seiitences, the Petitioner’s constituents’ clairn pre-

ferential. Appeals TTyere interposed from these sentences. Pendiiig the

Appeals, the Petitioner filed a Petition in British Guiana, praying the Conrt

to proceed to judgment of prae e t concwrrentiac, and to award the monies

to be paid to him, sub cautzone de restituendo: this the Court refused. Tlie

Petitioner then applied ex-purte to Her Majesty in Council, to reverse tlle

order of refusal, and for an order upon the Judges in British Guiana,

directing them to entertain the Petitioner’s application. Held by tlie

Judicial Committee, that an es-parte Petition, under such circumstances,

could not be entertained.

This was a Petition, presented by Richard Grosvenor Butts, as attorney in tile

colony of British Guiaiia, for [93] George Mihe and others, Trustees under a deed

of Trust of John Feering and wife, and also as attorney for Robert James Grant. of

London, creditors, claiming under an execution sale of the p l a n t a t i o ~ J‘rees en

*% Present : Lord Wynford, Lord Brougham, Lord Campbell. rhe T-ioe-Charicellor

Knight Bruce, and the Right Hon. Dr. Lushington.

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