F ~ N ~ ~ ~ 9, ~ ~ I ~ ~ ~ N [18s8] XI ~ O O R ~ , 347

Sir Herbert Jenner Fust and Sir John Dodson hiniMelf, t o which, perhaps, may be

added Monckton’s case (3 Notes of Cases, Suppl. p. lv.) before Dr. Lushington.

For the reasons that have been now stated, it i s their Lordships’ intention to

report to Her Majesty that, i n tlicir judgi~~ent , he present appeal should be dis-

missed, but without co&. Of course i t is understood that upon the question of

~ ~ e t e r o d o ~ y , the question whether the ~esp.ondei~t has at any time uttered heretical

doctrine or conimitted any e c c l e ~ i ~ ~ s t i c a ~ offence, their Lords~~ips have i n t i ~ a t e d

no opinion.

[News’ Dig. tit. ~ C C ~ E S ~ A S T ~ C A L LAW ; XX17111. PRACTICE AND PROCEDUBE ; 1.

~ a ~ ~ r ~ ~ ~ ~ . See ~~~~~~~ v. Simpsom, 1866, L.R. 1 Ad, and

E. 281 ; Sheppard v. Bennett, 1869, 39 L.3. Ec, 1 ; Ray. v, Oxford (Biskop of) ,

M i 9 ; 4 Q.U.D. 549; JuSitw T. ~~~~~~~ ( B ~ ~ ~ t ~ ~ ~ ~ of), 1x80, 5 A,@. 217.1

S.C. 6 W.R. 342.

E3473 ON APPEAL FROM THE SUPREME COURT OF VAN

DIEMAN‘S LAND,

MICHAEL FEKTOK and JAMES FRBSER,-A?~z~elZalats : JOBR STEPHEN

H ~ ~ P T O N , - R e ~ ~ o n ~ e ~ ~ * [Feb. 3 and 4, 18581.

The “ Lex et consuetudo I’arlinmenti ” applies exclusively to the House of Lorda

and House of Commons, in England, and is not conferred upon a Supreme

Legislative Assembly of a Colony, or Settlement, by the introduction of the

Commor~ Law of ~ n ~ l a n d into the Colony L11 Moo. P.C. 3971.

No distinction in this respect exists between Colonial Legislative Councils, and

Assemblies whose power is derived by grant Prom the Crovn, or created

under the authority of an Act of the Imperial Parliarnent 111 Moo. P.C.

3977.

Iieillny’v. car so^ (4 Moore’s P.C. Cases, 63) reviewed and upheld [I1 Moo, P.C.

395, 3961.

This was an action of trespass brought in the Supreme Court of Van Dieman’s

Land by the ~6spondent, the ~ O ~ i ~ t r ~ I ~ ~ r - ~ e n e r a l of convict6 in that Island,

against the Appellants, Fenton, the Speaker, and Fraser, the Serjeant-at-Arms,

of the ~ g i s ~ a t i ~ e Council of Van Dieman’s Lmd. The declaration complaine~~

that the Appellants unlawfully nsmultcd, seized, and imprisoned the Respondent,

The Rppeliants served in their defences, but respectively pleaded special pleas of

justification, setting forth, in substance, the following material ftkcts ; that before

and during the aileged wrongs, a Session of the Legislative Council of the Island of

Van Dieman’s Land was being holden at Hobart Town, in that Island. That the

AppeIlant, Fenton, was a member and the Speaker of that Council.

That the Appel~ant, Fraser, was the Se~jeant-at-Ariiis attending E3481 the

Council. That on the 14th of August, 1855, i t was resolved by the

Council, that a Select Committee of certain of its m e ~ i b ~ r s should, in ac-

cordance with the standing Rules slnd Orders of the Council, be appointed to inquire

into and ace r t a in the t ru th of certain alleged abwes in the Convict Department,

the same being matters within the province of the Council to inquire into and

ascertain by means of such Select Committee. That on tha t day the Select Cbrxl-

mittee was duly appointed in pursuance of tlze resolution. That before the

wrongs, in the declaration alleged, i t was resolved by the Council, that the Select

Committee should have leave to send for persons in reference to the inquiry. That

Thomas George Gregson, a member of the Council, was duly appointed and elected

Chairmen of the Select ~ o ~ i t t ~ e . That the R e s p ~ n d e n ~ was a material and

riecessary witness in the inquiries, and tha t he had notice of all the premises,

That the Chairman duly summoned the Respondent personally to appear before the

* Present: The Right Hon. The Lord Justice Knight Bruce, the Right Hon.

T. I’einberton Leigh, the Lord Chief Baron of the Exchequer (The Right Hon. S i r

Frederick Pollock), and the Rig& Eon. The Lord Justice Turner,

727

I_ _-_ __ _ ~ _ _ I _ -- - ~ -- - ___- ~ i _ _ _ _ l __I_

XI MOORE, 349 FENTON 11. HAMPTON [ 18581

Select Conirnittee, a t a certain place and tiiiie, to he esamiiied as a witness on

the subject of tlie inquiry. Tlitit the Respon-

dent wilfully aiid without reasonable excuse wholly refused and neglected to appear.

That, in consequeiice, the Select Committee was ohtructed in the inquiries and

the Council prevented obtaiiiing a report thereon. That during tlie Session, and

before tlie wroiigs coniplairied of, tlie Council >\ere iriforined of the premises, and

tliereupon resolved, that tlic Respondent be desired to attend a t the bar of tlie

Coiiiicil i House, a t Hobart Towri, on a day aiid hour naiiied. Tliat iri pursuance

tlier eof, tlie atteiidaiice of tlie Respondent was in due forin required accordingly.

[349] TlLat the Respoiideiit was duly seived with, and had notice of, tlie suninions,

but did riot nor would obey tlie summons, aiid did not nor would appear as required,

or at any other time, but wilfully arid contemptuously, and without reasonable

excuse. n l olly neglected and refused to do so, and disregarded the Order. That,

tliei eiiIiou, the Council, before tlie n rongs coiiiplained of, resolved that the lie-

sporideut, liaviiig failed to appear a t tlie bar of tlie Counril’s House, in obedience

to tlie Council’s resolution in tliat behalf, and the Speaker’s suiiimons, mas g u i l t ~

of coriteiiipt, and that, thereupon, the Speaker issued his a a r r a n t for the appie-

hen5ioii ( i f the Respondent, to be held in the custody of the Serjeant-at-Arms duriiig

the pleasrLie of tlie Council. Tliat, in pu~suance of sucli last-nientioned Resolution

and Order, aiid foi tlie execution tliereuf, and before tlie alleged wrongs, the Appel-

iaiit. Feiiton, so being aiid as sucli Speaker, did make and issue his warrant, under

h i b Iimid :uid iianie, direcled to the Appellant, Fraser, tlie Serjeant-izt-Arms attend-

irig tlie Council, and iu and I)y mliicli wairant recited that the Legislatile Council

of the Iiland of Val1 Dienian’s Land did, on the 11th of September, tlieii iiistant,

res011 e that tlie Ilespoiideiit was on that day guilty of a contempt of tlie Legislative

Council, and that lie be comuiitted to tlie custody of tlie Serjeant-at-Arms, to mliom

tlie ntirraiit was directed; aiid Fraser \>as directed to take into his custody tlie

hodv of tlie Respondent, and Iiiiii safely keep during the pleasure of the Legislative

Couiicil Tliat this warrant was deiivcied to Fiaser, and by liiiii duly executed.

That tlre Tlespoiident reiiiained in liis custody, as such Serjeant-at-dims, under the

raiit, until the Couiicil n as piurogued by tlie Go-[350]-vernor of the Island ;

M Iiereupoii the Respondent was liberated. That sucli arrest and iniprisoiinieiit

N C I C tlie alleged wrongs coiiiplained of in the declaration, and that at the times,

aird duriiig all tlie time iii tlie pleas mentioned, the Legislative Council was sitting

at Holmit Tonii, iii the Island of TTan Dienian’s Land. To these Pleas of justification,

tlie Respondent deriiurred on tlie folloR ing grounds : that the Legislaitve Council

liad 110 p m e r by law to adjudicate upon, as a contempt, any act done not in the

pieience of tlie Council, in Council assenibled, I)y any person not being a meiiil)er

01 officer of tlie Council, and to punihh for the saiiie by iniprisonnient; that the

Apliellant, Fenton, was iiot by Ian justified, under the cirrunistances set forth in

tlie pleas, in issuing the warraiit tliereiii meiitioiied for the appreliensioii aiid

det2ntion of the Respondent during tlie pleasure of tlie Council, nor was the Appel-

laiit, Fraser, by law, justified in apprehending the Rrspondent under tlie warrant,

aiid t1i;it sucli narrant was bad upon tlie face of it, as i t did not set forth facts or

circuiirstanres, autliorizitrg the appielieusion xiid detention thereby commanded.

Mte i argument, the Supreine Court, on thcb 37th of November, 1855, gave judg-

iiierit on the demurrers for the Respondent, holding that the pleas of justification

meie iiot sufficient iii laTv. The judgment ( a ) of the Chief Justice (The Hail. Paleirtitie

Fleriiing, Esq.), after statiiig the pleadings, proceeded as follow :-‘‘ lTpoii tliese

1hleadirigs, two quektioris arise : First. Whether tlie Defendants were justified ir i

doing the [351] acts complained of by i i r tue of the authority relied upoii 111 the

pleas, and, therefoie, by consequeiice, wlietlier that authority is sufficient iri point

oi lax j o r putting the same proposition in inore precise coiicordartce n i th the fact

set forth, whether the Legislative Council of this Colony can coiiiiriit for coiitenilJt

a 1)ersori who has disobeyed tlieir Order 10 apliear at tlieir ]jar, such Older lia\viitg

That the suiiinions was duly served.

( a ) From the importance of this question, affectiiig the constitution and 1)oT)era

of Legislative Assenihlies irr the Coloiiies generally, i t lias been deeined eypedierit t o

sc3t out these judgments a t length. [See Pointed Cases in Privy Council Appeals,

Colonial, N.S.W., 1847-1859.1.

728

FENTON 77. HA1\Ii’TOx 11 85 81 XI MOORE, 362

lieen issued in conxeyuence of the iefuial of such l ~ e l s o ~ i t o attend and fiixt‘ cridcli, c

before a Select Conimittee appointed in accordance u it11 the Staridiug llnles aird

Orders of the House. 11,

authority iii point of law, whether i t has beeri rightly exercised: iii othei lvords,

whether the Speaker’s warraiit, as set for th in the pleadiiigs, is valid, aiid juStifit,<

all tliat is alleged to have been done by virtue of its authority. liefore proceediiig

t o tlie consideratiou of these questioris, I am de\iroilq to c tn~rry hoa much I feel

indebted foi tlie full. careful and able nianiier iii n h i c l ~ tlie cahe aigned on boll1

sidei. ITe caiiiiot but haye derired n i a t e ~ ial assistalice from sucli an elahoi ate

exposition aiid analysic: of the princililes aiid authorities bearing up011 tlic subject

The Defenda~it’s case wa\ presented undel, a fonrfold aspect. First, the relation

existing betv eeii tlie Legislative Council and this Court : secondly, the pox e m

iiiherent iii t he Council, as part of the Legi

derived froui grant o r necessity; thirdly, the authorities beariiig on the questiori.

in the Englisli, Colonial aiid other Cour tb : arid lastlv. suhordiuate points ai-isiiir:

from the f o i i u of proceeding adopted b y tlrc C’oulrcil ill this iustance. 011 the part

of the Plaiiitifi, e r e r y t h i ~ ~ g that wac: brouclit forward uridrr tlicqv \7ario119 lieails

was [a521 exaiiiiiied, contested, and tle~lied. The hlaoiia Charta aas l~ro~iiineritlv

relied upon, and it was insisted that the sacred right of personal freedom, wxnied

by that great Charter of our liberties, could not be taker1 away, except by the e\pres<

erractnient of an authority of as high a na ture ; that the Legislative Council of

this Colony is a statutory body, haviiig no judicial functioiis, and posseshg oril)~

e poxcrs which are conferred by tlie Act which fiaT e it birth ; that the ahrise\ to

311 the prier asserted in this irislance nould opeii the door, preseiit tlie ~irost

cogent ieasoris ~vliy such a power should iiot be inferred : tliat the sainc principles

~vliicli would establish its existence ill this Couiicil, would cive i t t o otlicr bodlrs

derived from the same source, and having analogous functions to perform. but 111

which the law has clearly settled i t does not reside; that its assumed rrece\sitr i’oi

the purposes of either legislation o r inquiry vi11 be foLii1d to resolve itself iuto iricre

expedieiicy or desirableness : that even admitting such a itecessity, that aloricl ’i~ ould

be insufficient to sustain the exercise of suclr a poner : and finally, that the questiou

is concluded by express authority. Such being aii epitome of tlie different nspec ts

under which the arguments n ere adrailced on both side\. I shall, before pmrwdiiig

to discuss i h e two propositions lvhich I have laid donn, and u1)oit wliicli iiry j i idc-

iuent vi11 l)e founded, endeavour to clear av av soiiie hypotliews put forn aid. n l r i c h

ought not, in iiiy opinion, to influ~iice That judgmeiit I t ic; argiird

that the House oE Coninloris, as a branch of the Iniperial I’arliaiiieiit

to which belongs the power of enacting laws, is superior t o the Courts

of Common law, whose duty it is not to make or alter, but to inserpret tliow lax$.

and that it is also superior in that [353] i t possesses a general inquisitorial antliority,

extending eveti to those Courts theniselyes. Bv parity of reasoning, it is contended.

that tlie Legislative Council here, having frinrtioiis analogous iii thew respect5 to

the House of Comirioiis. is superior to thi< Covrt ; therice i t is ilrfcrred tlmt the

Legislative Coiincil bears the saiiie relation to tlie Supreiiie Court, tliat the Houw of

Coilinions does to the Superior Courts in England: and f r o m these premise\ i \

deduced the conclusion. that this Court should attribute to the Couvcil the sanie

poir ei s which spring from that relation. aiid construe its acts by the same interid-

i i i e i ~ t as the Superior Courts do a t home. in the c a w of tlic. House of Coimiiioiis. l f

this argument mere to be tested only hy abstract reasoning, o r niere moral ~ i e n s , it

nould be difficult to escape its force : the Houw of Conimons and the Couiicil I i e i t>

a r e both Legislative bodies: both, lei it be conceded, for the present p

quisitoiial bodies ; hotli ought to have full powers f o r tlie effectual exei

fiiiictions and duties f o r which they were constituted. Rut, taking all th iq lor

Elanted, here the parallel will be found to stop, because if you seek t o go oiie \tc.ii

farther. a new element is introduced; for n h e n a case arises in which the practical

enforcement of these powers clislies u it11 the personal liberty of the subjrct secured

by Ian, i t becomes a t once essential that such an exercise of aritliority should he

capa1)le of being referred to and justified by some other known and recogiiiLed law.

l’liis, in the case of the House of Con)mons, is the ‘ Lex e t ro iw ie fudo Z’nI1zirnrent7,’

and nliether that Asseniblp be taken to adniiriister that law by virtue of its being,

as part of the High Court of Parliament, itself a Court of Judicature, or by [354]

729

Secoiidlv. Assuming the existelice and sufficiericv of

virtue of ancient usage, may be regarded, at this stage, as immaterial, because the

Council can rest upon neither of these grounds ; it i s not a Court, it has no ancient

usage, and if the power which it claims in this instance is to be sustained at all,

resort must bs had to some other fou~idation than that which warrants the eaercise

of a like power by the House of Conimons. Hence the analogy and relation relied

upon in the early par t of the ~ e f ~ ~ ~ d a n t s ' r g u ~ e ~ i t , fail precisely at t ha t poiirt

where the real question involved in the present case begins, and all the db

reasoning of tlie e ~ ~ ~ i ~ h t e i i e d ,Judges which was brought to bear upon this part of

the subject fall to the ground, inasmuch as with the failure of the analogy they cease

to be applicable. I am not here uninindful that i t was urged under this branch

of the discussion that necessity was tlie basis on which the authorities mainly reIy

in attributing these powers to the Bouse of Cornrnons; I cannot assent to this.

The t rue deduction from all tlie cases appears to be, that necessity may be taken as

the original foundation of the powers, but not that i t alone constitutes tlmn ; necessity

i s an essential element to their existence, but it is usage that gives them the sanction

of the law. The second head of Defendants' argument will be found to contain tlie

true principle or1 which this cage must turn, and, as I shall have to consider i t at

large hereafter, I, now, only h a w to remark that the propositioi~ whether the

powers of the Couricil be derived from grant or necessity' is hardly accurately

~ r i u ~ ~ c i a t e d . There can be no such alternative distinction; the grant is tlie founda-

tion for the whole, and the power claimed on the footing of necessity, i f it exists in

law, passes bp the grant as much as i f it E3kjij-J were conveyed by it in express terms.

Pomfret v. Eicroft (1 Saund. 323). Under the third head I feel compelled to reject

the authority of the American Cornrnentator (Story, ' On the American Constitution,'

vol. ii. p. 305), and of the Ameritan and Canadian Courts, however high it map be,

or bowever apposite the reasoning. Not only i s i t not binding upon me, b u t were

I i o give effect to such a ~ ~ t ~ i o r i t y , 'I must, I conceive, disregard the law as nox settled,

and by Tyhicfi it is my duty to be bound. The cases of Beaurnoizt P. B n ~ r e t t (1

Moore's P.C. Cases, 59), and ILeiBep v. Carson (1 Moore's P.C. Cases, 63), I sltalt

carefully criticise, and on tlie last head of the Defendants' argument, irivolving the

validity of the warrant, I shall also deliver my full opinion. A distinction was sought

to be taken betweeii privileges and pomers. These, although not convertible terms.

hare doubtless, both by Judges and Commentators, been used promiscuously.

Privilege, I a p ~ r e h e ~ i d , in its strict sense and when not in iprop~r ly c o n ~ o u i i d e ~

with power, iniplies protection. In the present instance I should rather call what

is claimed a power, but I regard it as of no solid importance, the iviaterial niatter

being; does the Council possess it, and from what 8ource is it derived? Reliance

was also placed on the 24th section of the 9th Geo. IV., c. 83, the effect of which i t was

weed was to introduce the ' Le*. ~ ~ ~ i r ~ ~ ~ r ~ e ~ t i ' whenever the occasion should arise in

which that law would become applicable : and that swch occasion did arise when the

present Legislative Couiicil was ~stablished. That Act appears to me both

declaratory and enacting : declaratory 111 so f a r as i t relates to laws, both Comiiton

and Statute, which wouid, by force of the settled legal rule, be ap-[356]-plica~)le

a ithout its aid ; eiiacting in so fa r as it introduced laws passed subsequently to the

settlenient of this Colony, and which would not have beerr in force but for. its

provisions. This construction satisfies the enacting portion, which, moreover, i t

is to be observed, refers not to the Legislature, but to the Courts of Justice, and 1f tlir:

lav of Parlian~ent, a law peculiar to tlie two branches of the British Legislatiire,

and holly inapplicable to the C"ouirci1 established under that Act, did not attach

to this Island as a settled Colony, the declaratory portion would be of no avail.

Jiut, I am o€ opinioii, that it did not so attach. and for this purpose a t least tire case

of Kezlley v. Cn7wn must be taken as conclusive. Newfouridlaud was a settled

Colony, and if the ' Lea Purlinmenti' ltad been introduced there, as clairrred iri i l i i s

instance, arid the establishment there of a pure representative Assembly had called

it into play, there would have been an end of that c a s e - ~ ~ o ~ h i i i ~ to discuss, ~ o t ~ ~ i i ~ ~

to contest. Rut the whole pnrview of that case impliedly, arid the judgment es-

pressly, negative such a position. Having so f a r disposed of the different points to

which I have adverted, I pass to the first proposition with whieh I set out. Piere

the Defendants justified in doing the acts complained of, by virtue of the authority

relied upon in the pleas, atid is that authority sufficient in point of law? This

'730

FENTON U . HBMPTON [1858] XI MOORE, 367

question obviously involves, as matter of preliminary consideration, when and how

the present Legislative Council of this Colony was constituted, what is the legal

operation of its powers and attributes? The Council was established by aii Act of

Parliament, the 13th and 14th Vict.. c. 59, which incorporates by reference, various

enactments of the pre-existing Sta-[%7]-tutes, 5th and 6th Vict., c. 76, and the

7th and 8th Vict., c. 74. After repealing the provisions of the 9th Geo. IV., C. 83 ,

so far as they related to the constitution, appointmerit and powers of the then

Legislature, i t proceeds to erect a new Legislative body, consisting of members,

in par t elected by the inhabitants, and in par t appointed by the Crown. The

Council so constituted has, in conjunction with the Governor, the power to make

laws for the peace, welfare and good government of the Colony. But this power IS

subject t o many important restrictions and limitations, the principal of which are,

that no laws passed by the Council shall be repugnant to the law of England; shall

interfere with the Crown lands or the revenue arising therefrom ; nor shall it be

competent to the Council to appropriate any money subject to its control to any

branch of the public service, except on the prior recommendation of the Governor to

make provision for that specific service, Again, Bills embracing particular subjwts

of legislation a re expressly required to be reserved for the signification of the

Queen’s pleasure, and their operation suspended until that pleasure has been made

known. The Governor’s assent or dissent is liable to be controlled by iiistructions

from the Queen, to which he is bound to conform, and even measures which have

passed the Council and received that assent are liable to be disallowed by Her

Majesty. It is to be observed that aniongst the provisions contained in the in-

corporated Act (5th and 6th Vict., c. 76) is one which authorizes the Council t o

prepare and adopt such standing Rules and Orders as shall appear to be best

adapted for ‘ the orderly conduct of the business of the Council;’ and upon such

Rules and Orders being laid before and [358] approved by the Governor, they

becorne binding, subject to disallowance by the Queen. Under this provisiori certaiii

Rules and Orders have been prepared and approved and are in force, and some

argument on both sides was founded upon them. It is sufficient for iiie to say that

I have looked into them, and formed a clear opinion, that i t was neither the intention

of the Act to convey, nor has i t conveyed, authority to the Council by any standing

Rules or Orders to confer upon itself the power asserted on this record; but even

adniitting the converse, I ani equally of opinion, that the Rules aiid Orders wliich

are in force rather negative than support the view that such a power was either

contemplated or brought into being. Both the authority of the Act, and its exercise

in this respect, extend no farther than providing for and regulating the mode of

conducting business and forms of procedure, so a s to secure method and good order.

within the House. From the foregoing stateinelit of the origin of the Legislativc

Council, and of the powers conferred upon it , arid I have adverted to as much, as

appears to me, to be material to the question before us, it is manifest, that i t is a

mixed and indeed anomalous body, deriving existence solely from statutory authority,

clothed thereby with certain delegated and defined powers and functions, subject

thereby in the evercise of those powers and functions to restrictions and limitations

subordinate to Parliament, and in important particulars to the control and direction

of the Queen. In order, therefore, to test the legality of any act done by or under

the Order of the Council, i t is indispensable that we should refer to the Statute

from which i t derives both i ts being and its powers; aiid the question which has to

be determined in this, [359] as in all similar cases, must be:-is the authority,

the eyercise of which is complained of, within the scope of that Statute according

to the legitimate rules of interpretation? 111 other T+ords, has i t been expressly

communicated to the Council by any of its provisions, or what may be taken as

equivalent by necessary implication arising therefroni? If i t has, then the act

done (I speak not here of the mode adopted in carrying i t out) is justified by the

authority of the Statute; i f i t have not, then it i s an excess of jurisdiction, aiid

illegal. That the power which has been resorted to on the present occasioii of

imprisoning the Plaintiff, for the alleged contempt of which he has been adjudged

guilty, aq disclosed by the pleadings, is not expressly given to the Council, must be

and indeed is admitted on all hands, and, consequently, the question I am now to

decide, is reduced to the consideration of whether that power is communicated by

731

XI MOORE, 360 FENTON 'u. HAMPTON [1858]

necessaiy iiiiplicatioii-tliat is, wiietliei it passes as a legal iiicideiit of the powers

which a l e given. The aiguiiient oii this poiiit T%as haped pretty inucli as follows :-

' The Couiicil is empowered to pass lan-s ; to enable them to do so, i t is eberitial they

kliould inquire : such inquiry iiecessarily deniauds, 111 some iiistaricea, iiiformatiori

f i 0111 u itiirsses ; such attendance iiiust be conipulsorily enforced, to prevent the

])omeel of legislation beiiig defeated.' I here observe, that the pleadings in the

lJ1 '5~t iiidance, slioa a case of iiiyuiip only, and fail to a\er that such inquiry

1% ab for the purposes of legislatiori, o r even tliat that end was 111 coiitemplatioii.

Altliougli if such vere the object, this omission weakens the force of the foregoing

aiguiiierit, I dill yet coritciit t o take it, as i t was advanced, and then its validity must

depend, as niy decisioii i i i u b t also depcnd, [360] upoii the applicatiou of the legal

iiiaxiiii, . I$rlatlc/o IPT ( ! 7 i v i / d coi i , rc l i t corzccdcre c j i c l e t i u e f d u d s i r l ~ r q i io I cs ipsa

e s w i ~ o r / f,otrst.' It becomes, therefore, all iiiiportaiit to consider the t rue iiiiport

o f this iiia\iiii, arid the extent to whirl1 i t has been applied. After tlie fullest re-

wai-cli which I Iiaxe beeri able to bestow, I take the matter to staiid tlill5 :--TTlienevei

aiiytliiiig is authorized, aiid especially i f , as matter of duty, rcquiied to be done

by lam, aiid it is fouiid irnlpnssible t o do that thiiig unless soiiietliiiig elyc not

aritlioiised in e\press terms he also done, theii that soinetliirig else 1% ill be hupplied

by iiecesrary inteiidineiit. Rut, if, TTlieii the ma\iiii eoiiie~ to be applied adversely

io the lilierties o r inteiests of others, it be found that no such iiiipohsiliility elists,

illat tlie pouer riiay be legally eke1 d without tlie doiiig that soiiietliin;! else,

oi rveii going a. step farthei, that it lily in some particular instanceh. a i opposed

t o its geiicral operation, that the law rails iii its intention, unless the eiiforciiig p m e i

be supplied, then, in any such case, the soundest rules of constructioii poiiit to the

c\clusioii of the iiiaurii, and regard tlie absence of the power ahich it mould supply

I)y implication as a co / L \ /Jn//Y.l/q. T'iiless this be so, I caii iieitlier underetaud the

t ases cited 111 illustrat 111 of the iiiaxini, iior the riuinei-ous iristaiices a h e i e it mould

have ieiiioved all difficulty, i f its coiitrolling force had been recogiiized.

ing authorities cited oil tliic: subject are in 1 2 Coke's Reports, 1Y1, Baiw v.

(2 Biiigh. 63), and examples in actions for waste under the Statutes, for I shall

refer oiily t o those caws whicli are apposite, as involting the coiistruction of statiitory

powerb. The first decides, that Justices of the Peace may issue warrants to biiiig

before them parties in order to their [361] taking the oath as presciibed by the

7th Jac. I., c. 6, although that authority is iiot conferred in cypress teriiis. But

tlii.: is a iiiaridatory law. iiiiposing a Etatutorv obligation and duty, fox neglect of

\~liicli tlie Justirei noiild lie punixhalile. It i i riot the case of enfoi-ciiig the attend-

aiice of a nitiiess, but arialogoiis to that of Ii~iiiging up a party ariiciiable to the

law, arid it i aiiges under the principle of absolute necessity, to enable, not the

clercise of a desirable or beneficial ~ ~ o w e r , but the discharge of a positire duty en-

ioiiied by la-. But. as though to eviderire the strict construction of eveii itiandatoi-y

.tuthoritp, where the liberty of the subject is iiivolved, it vas held that, iii the elecii-

tioii of the Act, doors could iiot be broken, even if necessary t o insure compliance

The second casc, which decides that where a Statute gives a

dustice jurisdiction over an offence, it impliedly gives him power to apprehend

ari) person charged pith such offence, rests upon the same principle. It is tlie duty

of Justices to enforce Acts, the execution of which is referred to thciii, aiid tlie dis-

regard of such dutv mill render them liable to a iiiandaiiius, 2'he l i / i i / / T. Brn/j (6

Teiin Rep. 188): it would, therefore, be a paradox that the lam should reiider tlie

peiformance of a thing obligatory, and yet deny the power to do it. As to the

illustration of this legal iliaxiin derived from the Statutory actioiis of T%aste, the

first is referable to necessity, in conjunction with the personal right of property,

tor the reversioner cannot in any case be sure of the remedy prorided f o ~ Iiiiii,

unless by entry t o ascertain if the i ias te have been committed. The secoiid has

little bearing upon the point &L issue, for i t simply establishes, that nhei-e ail old

action is given in a new case for the same [362] cause, it is given in all its entirety,

and, consequently, the question was, u hetlier the whole thing passed, and not whether

. mietliing else passed as an incident. These and all other autlioritie5 uliic 11 I Iia\ (1

I)een enabled to find in elucidation of this maxim, range theiltselves under the

])rinciple of positive dutv or general inevitable necessity, the non-compliance 1% itli

w1iic.h mould deprive the law, wliaterer it be, of all operation. But to estelid our

7 3 2

ith its provisiorip.

FENI’ON (1. H A M P ’ l O S 118581 XI MOORE, 363

I easoniiig further to instances where the application of this maxim, if allon ed,

would have removed all difficulty to the exercise of powers essential to the carrying

out of various laws, how stands the matter? No case has been produced, nor, as I

apprehend, can be, which establishes that an enabliiig Statute however public 01

beneficial niay be the objects which i t contemplates, has ever beeii extended by coli-

structiori so as to warrant those entrusted with the esecution of its powers, aitd who

do iiot constitute a Court, to issue process of arrest for the enforcement of those

powers. 111 many instances where even a

law be silent in that respect, such a power cannot be exerted. As a geiieral iule.

Justices of the Peace cannot conipel the atteiidaiice of witnesses for tlie p i i r 1 ~ ~ ~ of

sumniary trial, unless there be a special provision iii the Statute uiider which tlier

act. Even in cases of feloiiy and

niisderneanor, where the course of public justice would be jeopardized by the escape

of offenders, prior t o the passing of the Statute, 11th and 12th Vict., c. 42, mliicli

cGnfers that power generally upon Justices. it was doubtful whether a Justice ;oiiltl

isaue a warrant to compel the attendance of a witness tor give evideiice, o r coninill

for refusal t o take the oath or be e\aniiiied. [363] (;l’OZJlJel’ v. 7Lloi to i~ (8 Doirl

and Ryl. 166); Euaris v. Reps (12 Ad. and El. 55). It has indeed been held that

they niay coiiiniit for refusal to enter into recognizances to appear and give evident C>

at the trial, Ueunet v. Watson ( 3 Mau. and Sel. 1) ; but this, which is iiot by 75 a r

of punishment, but to secure attendance, is by virtue of the Acts, 1st and :!Lid

Phil. and Mar., c. 13, and 2nd and 3rd Phil. aitd Mar., c. 10, which iiiaiidatoiily

iinpose that duty upon the Justice, and subject him to a penalty for neglect. Agaiii-

Comniissioners of Bankrupts were, under the Acts, 34th and 35th Hen. VIII., c. 4,

the 13th Eliz., c. 7, and 1st Jac. I.. c. 15, enipowered t o suniiiion and e\aiiiine ail

persons with the view to the discovery of the Bankrupt’s property, and to Lonilnit

in case of refusal; and although held clothed with a judicial character for tlie

purpose, i t was admitted by the highest authority that prior to the Act, 5th (:eo.

II., c. 30, which was passed to remedy the defect, they possessed no power to coiini)it.

i f the party appeared and took the oath, but answered iii such a rnaiiiiei . I

render the authorized examination a perfect farce. Doszilell v. Znzpe!y (2 Dun1

and Ryl. 350). 111 short, wherever a new statutory jurisdiction has been erected,

although iuvested as in some instances with judicial functions, I can find no caw

nliere the power of conipulsorily enforcing the attendance of witnesses has, in the

absence of express provision, been iiuplied, much less has a power of coiuniittal fot

cCJIiteIXLpt for disobedience by witnesses been supplied by intendment. Again, i f

n e take as elainples public Coniniissioiiers or Boards created by Statute and invested

with full powers to inquire and report, we iiivariably fiird that the atteiidance of the

iiecessary parties before thein is enforced, or their refusal to attend puiiished by

specific [364] enactment for the purpose. As instances, the Charities and Titlir

Commissions, which were referred to. The former was established undei tlie Act.

1st arid 211d Will. IV., c. 31, and the Coniniissioners nere thereby eiiil)oT\ered to

suniinoii the necessary persons, and call for the production of books, palJers aiitl

accounts. Now, i t is to be observed, that the inforniation required could oulv, ab a

general rule, be obtained from particular individuals. such as the trustee5 of t h e

charities, the clergyman, or parish officers ; on their refusal to attend, a \ the case

iiiay be, the inquiry would be brought to a dead lock. Yet was it ever dieailit that

the Coinniissioiiers could iri any such event, ds a necessary incideiit to their poaeis .

issue a warrant to bring the body of the rerusant witness before tlieni, aiid iii case

of refusal to be sworn and examined, coniniit him for contempt? Wlllv ere11 the

Statute itself does not entrust the authority to the Coniiiiissioiiei~ ; but SUbJectS the

disobedient party to be fined by the Court of Queen’s Bench oi Eichequer, llaynieiit

to be enforced by attachment as for contempt. Under the Tithe Commission A,.;

the refusal of witnesses to attend or give evidence is punishable as a 1iiisdeiiiea:io;

Rut tlie nearest arialogy will be found incorporate, iiiunicipal, or other bodieb 111

vested with legislative authority, their laws being binding upon all within the liiiiiti

of their jurisdiction-such as the Corporation of the City of Londoii, or the East

India Company. Information for such purpose is as essential to them, ah to ally

Local Legislature : yet they cannot enforce the atteiidaiice of witiitsses by nay1 silt,

o r coniniit for contempt for refusal. Now, i f the legal maxim under coxisideratioil

$33

Paley, “ On Convictions,” p. 86 (4th Edit.).

XI NIOOBE, 366 FENTOK U . HAMPTOS [185S]

is to pre.;ail i r i the case before me, why should not its E3651 goverrririg application

have been recognized in the several instances to which I have adverted? If i t be

said that in some, elpress provision having been made, the necessity for the iiiiplied

power is superseded, the anbwer is, that the express provision is made just because

the implied power would not be attributed. To confer the incident in terms, where

it passes by operation of law, is superfluous and inopera t i ivea breach of legal

yule, ‘ ~ ~ ~ ~ ~ e s , ~ ~ ~ eorum quae tactit? irwzm;ct nihd o ~ e ~ a ~ ~ ~ ~ . , If i t be said that a

different rule ought to prevail iii consequence of the higher dignity aiicl importance

nThio2i attach to Legislative bodies, and to the powers and duties entrusted to them,

the answer again is, that the question does not hinge upon the constitution of the

body, but upon the grant-not on the exalted character of the functions to he per-

formed. but on the extent of the jurisdiction which has been conferred. The niare

just solution of thc problem will be found, as I take it, in this; tha t in electing the

different statutory bodies, Parliament has assumed that the power to hear aiid detel*-

mine, to inquire and report, or to inquire and legislate, will, as a general rule, be

effectually carried out, without difficulty and without obstructiori ; and if in

iiarticular instan

a witness, i t is a

ii ir t t by other means, than to imply a power of infringing upoii the personal liberty

of the subject. ‘ A d ea quae frequeiztiw uecidt4nt jura udaptantw,’ is equally

a niaxini of law with that which I ani considering; and where the words of the

Statute do not reach to an inconvenience, rarely happening, they ought not to be

extended to i t by construction. Now,

the work of legislation has hitherto been carried on here readily and without iiiipedi-

nient : the information on which i t is founded is ordinarily of a public character,

o~)taiI ia~le without difficulty ; the matter notorious ; the members conversant with

what is transpiring around them generally inform themselves by the evidence of

their senses, or by conimon report. Let it be coilceded tha t occasions may arise in

which inquiry by t,he examination of witnesses ouglit to precede legislation ; how

iarely would it happen that any party required to attend would refuse; but even

assuriiiiig such refusal, rare indeed would be the case, and such is not shown in this

instance, where such party constituted the only fountain from which the required

ii~€oririatioii could be drawn. Taking, however, tha t extreme and exceptional case,

it would still be insufficient to let in the application of the niaxim that things

necessary pass as incident to the grant, to the extent which has been assunied, or

t o Pound the power or privilege which has been here exercised; because as regards

the fornier, the legal power to legislate still exists, although i t s exercise in the par-

ticular instance is impeded ; and as regards the latter, because necessity alone, is

inadequate to sustain such a power. If the House of Commons claimed a new

privilege to-niorrow, the exercise of which would invade the right of personal freedom

beyond their walls, and the matter came before the Superior Courts in a shape in

which they could take cognizance 0f it, I apprehend it would not be enough to

establish an unans~rerable case of simple necessity; it would be essential to add to

that necessity, the evidence of usage. Burdett v. Abbo8 (14 East, 150), et per

Littledale and Coleridge, in Stockdale v. Harrzsard (9 Ad. and Ell. 1). But I am

[367] prepared to test the question by every assumption in favour of the Defendants’

case. Let the maxim be applied, and let it be granted that, the power of inquiry,

by the evidence of witnesses, is necessary to the Legislative, or, if you please,

inquisitorial functions of the Council. No one, I conceive, will be found to contend,

that the exercise of tha t power could legally be carried one iota beyond the necessity

which calls it into play. Arid what would be this limit B That on the Plaintiffs

disregard of the summons of the Conirnittee and of the order of the House, requiring

his attendance at the bar, h e be ordered to be brought up in sustody for the purpose

of being examined on the inquiry, and tha t the warrant be shaped accordingly.

Rut this is not what has been done; the Plaintiff for his refusal t o attend, has bee11

adjudged guilty of a contempt, and his arrest and in~prisonnient are the penalty

for that offence; it is not simply the coercive ei~forceii~ent of his presence, but

punishment for his obedience in not being present. StockdaTr v. I ~ C Z ~ , S ~ T ~ (3 per.

arid Dav. 331). In thus acting, the Council has assumed the attributes, not alerely

of a Court, but of a Caurt of Record, Groenvell v. Burwell (1 Lord Raym. 454);

734

an impediment should arise from the neglect or eo

fer rule of construction to regard such a cusus orn

Bole v. illorton (Vaughan’s Rep. [366] 373).

FENTON 27. ~ A ~ ~ P ~ O ~ [1858) X I ~ ~ ~ ~ E , 368

a t ~ r ~ b i i t e s which there is high authority for saying beloug tieither to the Houw of

Lords iior Conimons, sitting in their 1egihlatir.e capacity. Eex v. i h ' ! o ? ( ~ i (8 Teritt

Rep. 314); Jortes v. ~ ~ t a ~ a ~ ~ (Cowp. 17). Indeed, were the exercise o f the power by

tlic Council in this case tried by the rules of the Les ~ ' ~ ~ ~ ~ ~ ~ ~ n e r ~ t ~ , it appears to nit'

that it could not be sustained. The practice as laid d o ~ m iii the Conmons'

1731, by May (Edit. 1855), p. 322 and f o ~ ~ o w ~ n g pages, and the course a 1

~ f ~ w ~ 7 . ~ v. Gnsset (10 CJ. Ben. Rep. 359), all co1~-[368]-spire to establish, that nheru a.

witness refuses to attend, he i s to be brought up i~i custody to the Bar, prior to his

being punished for the contempt of disobedience. I do not. however, put the caw o i l

that footing. I have dealt with it under the orily aspect in which I conceive it oii;lrt

legally to be viewed; it resolves itself into a question of c o i ~ s ~ r u c ~ ~ o ~ 1 , to be governed

by the principles of the ~ o i ~ ~ n ~ o ~ i l a w ; and a p p l y ~ n ~ those principles arid the test&

of analogy, the only niaterials at iny- con~ii~aKrd, f ani of opinion, that' they e d u d c

such an exercise of poKer as has been resorted to by the Council. It remains ~ - i t l i

me, before passing to the second question for nty detern~i i ia t io~, to consider tlie t m i

authorities which have been relied upon on both sides as bearing directly upon t11e

present case, ~ e n ~ ~ t v. Barrett (1 Moore's P.C. Cases, 59) ; and ~~~~~~~~ v. C'ni w i t

(4 Moore's P.C. Cases, 63). If the decision in the former stood u i ~ a ~ e c t e d and wt-

questioned, being that of a Tribunal so high, and forming at the saue time the appeal

Court from this Colony, whatever opinion I might myself have ventured to enteriairi,

IC should at once have bowed to i t s authority; but i t so happens tha t i t has bee:~

oz-erruled jus& in that very par t icu~ar which could render it of ernin^ in^ infiuence

in t h i s case. Acting upon a dictum of Lord Ellenborough in Burdett v. B b b o f f ,

which the coiitext, as i t appears to me, abundantIy showed had reference to the

Nouse of ~o~i in io~is , their ~ r ~ s h i p s held, on an appeal from the Cuurt of Error in

Jamaica, that the power of punishing for contempt was inherelit in every Asseii

invested with Supreme Legislative auihoritp, whether such contempt tended dire

to obs t ru~ t heir proceedings or indjreet~y to produce such 0~[369~-st~uct ior i .

less, therefore, some reliable d i s t i n c t ~ o ~ ~ can be founded upon the c o ~ ~ i ~ ~ o s ~ ~ ~ o n f

Legislative body, that is, between represent atiori and nomination, and there seeiirh

little room for it, this position of law would have-given to the late Council in Tan

Dienian's Land the power in question and ci j o r fmr i would give it t o the

Council.

Y. Barre?$ is iiow stripped of all a u t ~ ~ o r ~ t y , except that of usage and ~c~uiesc~Kjce,

coupled with the ado~~tioI i of the power in question by virtue of Legislative eiiact-

ment forming the Act of S e t t l e ~ ~ ~ e i ~ t of that Island. I come down to the case of

h'ezlley v. r ' a ~ ~ o n , the importance and authority of which cannot be overrated, s

that it was twice argued before, and long deliberated upon by, an array of jud

learning arid e ~ ~ ~ i r i e ~ ~ c e rarely congregated together. The broad basis on which that

ease rests is. that the House of Asaenibly in ~ e w f o u ~ ~ d l a i i d does not possess, as a legal

incident to its functions as a. Legislature, the power of arrest with the viev to an

a d j u d ~ ~ ~ a ~ i o n up past ~ i s c o ~ d u e t , as a c ~ ~ ~ t e i ~ I ~ t of i t s authority, such alleged

wmtelnpt haviug been c o ~ ~ r i i ~ t t e d out of the House. Tinless, therefore, it can bc

shown that the Legislative Council of this colony, a mixed statuCory body, possehtres

powers which the Assembly of ~ewfou~ id land , a pure repi"ese1itaii~Te body, does not,

or uriless thnt case I a p the ground for some solid d i s t~nc~ ion between the nature

md c ~ ~ ~ r a c t e r of the alleged c o n t e ~ ~ p i there and in the present insta~~ce, the decision

of the Privy- Couiicil appears to me to be conclusive of the question at issue. Now,

the House of A s s e ~ ~ l y of ~ e w f o ~ ~ n d ~ n n d was e s ~ a ~ l i s ~ i e d I)y the a u t ~ ~ o i . i t ~ of the

Crown under a ~ o ~ ~ ~ s s i o n and ~ ~ - [ 3 7 O ~ - s t r u e ~ i o n ~ . Erom which alone it was ruled

their powers are to be gathered. By the former they are authorized to make laws

for that Island, in terms, if a i ~ ~ h i n ~ , ampler than those contained in the Act of

Parl~ament creating the Council here, xvhilst the Instructions were pexi31ed i n

language which opened the inference that it RW ~ n t e ~ d e d to confer powers allalogous

to those of the Ifouse of Commons. Their Lordships, however, regarded that Ian-

guage as too vague and generd to include the power of c o ~ i i n i i t ~ ~ e ~ ~ t for cor teiiipt,

and if general ternis be considered i n s u ~ c i e n t for that purpose, t.*ow mucli niore so

n3llSt be the absence of all ternis. The K k g v. FauJKner ( 2 Cro. Mee. and ROs. 532).

Wal-ing regard, therefore, to the c ~ r ~ s ~ i t u t i o n of the House of A s s e ~ b ~ y of Nev?..

f o u ~ ~ d ~ a n d nd the powers intended to be coiiferred upon it, h'ellley v. Carson appears

735

But the ease of ~ e ~ ~ ~ e ~ v. Cnrmn expressly ignores i t as law ; and Be

XT ~ ~ O ~ E , 371 FEXTON 6’. HAMVIL’ON [r858]

riiore favourable for tlie a~ jp l~ca~ io I i of the doctrine of legal i ~ ~ c ~ d e l ~ t by a ~ ~ a ~ o g y

thai i the present case. Then, does that authority warrant the infererice that aiiy

substaiitial distiriction was put forth or cau be taken with regard to the nature of

the contempt 2 After t he first statement of the

question, in no part of the judgment is the word * coiitenipt ’ i i~d iv idua~ i~ed , subject,

to the liirii~ation of being within arid without the doors of the house; it is used in

i t s general signification. At page 84, we have the words,--‘ Adjudicatioii 011 a

coii~i~laiiit of a c o I ~ t e r ~ i ~ ~ t c o i ~ i ~ i i t t e ~ aut of its doors ;’ at page 86, authority ‘ of coin-

riiittiiig for a coriteinpt j’ at page 87, of ‘ terms so vague a i d geueral could iiever

have been used with the ilktentioil of giving tliv powers of corumitrnent ;’ again a t

e 88, ‘the power of e o n ~ i ~ ~ i t t i ~ i g for a coiitenipt;’ but lower down in the saiiie

e occurs this passage: ‘But the E3711 power of p u n i s h i i ~ ~ any oiie for past

onduct as a coriteiiipt of its authority, arid adjudicating upon the fact of suth

coirteinpt, and the iiieasure of punishment as a judicial body irresponsible to the

party accused, whatever tlla real factb may be, is of a very different cliaracter

and by iio means essentially necessary for the exercise of the fuiretions of a l o ~ a l

What

If there be force iit language, taken with rhe couteit,

i t must mean that whatever inay be tlie uature of the alleged wnteiirpt e o ~ t ~ i ~ r i ~ ~ e ~ l

oirt of doors, the facts or c~ rcu~~~s ta I i ces out o f which it arises, in uo rabe docs the

pomer of couiui i t i irig for such coirteiiipt attach a~ a iiecessary legal iricideut to the

~ ~ i t i ( , t i o ~ i s of a local legislature. It swms to nze that if their I ~ ~ r d ~ l ~ i ~ ~ s had iutended

to cxtablisli airy distinctioii betweeii the iiatui e of contempts eoniiiiittud out of the

fhuw, 80 a8 to inrply that in some the power of dealing with tlteui by ~ o ~ ~ i ~ i i i i i ~ i e i i t

pabsecl as an incident, -whilst in others it did imt, it is iiiipossible to coiiceive tha t

their judgiiieirt, desigiied appareiitly as a guide for other Colonial Legislaturc~s,

would have btwi couched iii such general language, especially as they so carefully

gtiwd tlieiiiselves upoii a distinction whicli might well be urged betwee11 coiiieiiq)tq

~ ~ ~ ) r i i ~ i ~ i t t e d irr he face of the Assenibly. aiid out of doors; riot indeed, that they

determilie, e ~ c i i ii the former case, tha t the House could coiiuirit by way of pu~risli-

i r m i t , for it i s quite consistent with the decision that their po-crer iu such air rverit

i s liiuited to (lie eonipulsory removal of t he obstruction. d distinctioii was, himever,

sought to $36 e s t ~ ~ ~ ~ i s l i e d in the ~~efaIidants’ a rguI i~e i~ t betwexi ~ o ~ ~ t e K I ~ I J t ~ arising

out of facts of which the [372] ordinary Courts could take cognizance, aiid those i 7 i

~ h i c l i they could not, atid this view was considered to be favoured by tlie followiiig

pasbage 111 page 89 : A11 these Puiictioiih may be well perforiired without this e ~ t r u -

orcliuary power, aiid with the aid of the oidirtary tribuirals to iiivestipate arid

puiiish c o i i ~ e u ~ ~ ) ~ ~ i o ~ i s iirsults a id‘ i i i t ~ ~ r ~ p ~ ~ o I i ~ : ’ but the setitelice i i i i~~~ediately

pcecediiig coiiclzlsively shows that the i!ower of punishiiig p a t Iliiscoirduct as 5

ctmtempt is in no case c ~ ~ i s i d e r e d by their ~ordships as ess~K~tia~ly uecessary to the

fuiictioas of buch bodies; aiid how. therefore, can it be said that the decelbion iii any

degree turns upon whether that nnsconduct be, or be not, of a i iature to be dealt with

by the teniporal Courts? There i s a TT ide niarqiii betweeri reiiiosiiig aii obstructioii

or iiiipedinwnt, zmct puiiishiiig it as an oiTence : aird wheii the Court8 arc thus referred

to, vhat I take to be meant is this, that the Council may, as a legal mcideirf co the

elexcise of i t s powers and functions. rriiiove arty actual act i re ol)sh uctiou at the

time of its o~c~i r r~’ r ice : but if they a f t e ~ ~ a r ( ~ s desire to go further. a i d have the

partv puiiishcd for his past offence, they must resurt tu the aid of the ordinary

Ti i1)uiials.

lislied by that part of the judgineiit which denies rhat such Legislative bodies coli-

stitute n Court, and that having no aiicient usage to fall back upoii, like the Ifouse

of ~ a i l i a ~ ~ i e I i ~ , i t i s only as a Court tlial such p o ~ e r t o d d be eiercised. Airy other

viea. I conceive, would be incuiiipatiblt. n itli the lax which we ~lrould fiud yropouiided

bv sucli high au~liority, for all sorts of i i~eo i i s i s~e~~e~es would fIow froin fol

i his distinction Eortrided 011 the cogiiisaiice, or the eoutrary, by tlre ordri

Tribuiials. The most contemptuous insuits : the grossest coiituitiely : the foulest

i.pitIiets, might out-of-doors by word of Iuoutlx I E heaped up011 Menilters : arid yet if

the? steered clear of the category of actioiiable slaiider, or thereat of bodily i i i j ury,

the ordinary Court8 could afford 110 redress. Was i t i ~ i ~ e n d ~ by their ~ r d s l ~ ~ ~ s

that in such cases the House could cn-I l i t i t For conteiiipt? Oir tlie other haiirf,

I am unable to discover aiiy such.

lature, whether representative or not; ‘ whatever the real facta mag be.’

to u n d e r ~ a i i d by this?

That this is the t rue aspect of the case, I think, i s s a ~ ~ s f a c t ~ r i ~ y

736

FENTON V. IZAMPTON [1858] XI MOORE, 374

language fa r less galling and less liable to impair the independent conduct of Members

in the Rouse, might out of i t be used, of which, by the rules of law, the temporal

Courts could take cognizance. But in order not to lose sight, i f possible, of anything

that was advanced, admitting this distinction, it was strongly argued, that i t could

not avail in the present instance, for it was said, tha t if the power to s u i n ~ o ~ wit-

nesses were conferred by necessary implication on the Council, it would be equivalent,

to express enac t~~en t s , and then a correlative duty would arise to obey such s t I m ~ o n s ;

hence it would follow tha t a breach of such duty by disobedience would amount to a

contempt of the Statute, and be, punishable by this Court as such. 3 Inst. 131, 163 ;

Crouther's case (Croke Eliz, 655). If this be so, in whatet.er way we regard this

distinction, it cannot prevail. But the following passage, at page 88, and one of

similar iniport ;tt, page 92, a re relied upoii by the defend an^:-^ Their Lordships

see no reason to think, that in the principle of the Common Law, any other powers

a re given them, than such as are necessary to the existence of such a body, and the

proper exercise of the functions which it is intended to execute. These powers are

granted by the very act of its establishment.' And again: ' This is the principle

which goserns @74] all leigal incidents : Quando lex ~~~~~ eortcedit, corwedere

v i d e t w et illwt, s h e quo res ipsa ease icon potest. In canformity to this principle,

we feel no doubt that such an Assembly has the right of protect~iig itself from, all

impediments to the due course of its proceediiig. To the full extent of every measure

which it may be really necessary to adopt, to secure the free exercise of their

Legislative functions, they a re justified in acting by the principle of the Coinmoii

law.' Now, if this and the brief passage at page 92, of like effect, be isolated and

read withaut the light of the context, they would, doubtl6s,ss, countenance the favour-

able view of this case taken by Defendants' counsel. But. such a course would be

contrary to all rule. The above quotation must be taken with that which ink-

mediately precedes and follows it, and then me find before it, the inquiryj whether the

power of c o m i ~ ~ t t i ~ ~ g for a c o n ~ ~ p t not i n the presence of the Rouse, is by law

incident to Local Legislatures, and after it the emphatic paragraph, a t page 88,

which is engrafted upon by the exceptive ' but,' and which I have already cited at

full length. To any unprejudiced mind, there is

but one conclusion, as it appears to me, to be deduced, and it is this: Whilst we are

prepared to ascribe to you every powar reasonably necessary for the proper exercise

of your functions and duties, the power of punishing any one for a contempt not

commit t~d in your presence, whatever may be the c ~ r c u i ~ ~ t a n c e s ~ w hold not to

be thus necessary, and you have it not. Upon such a review, therefore, of the case

of Keilley v. Camom, X am of opinion, that it ignores the assumption by Local

Legislatures of the powers and privileges of the House of Conimons; [375] that it

confines the pawers and privileges which. they do possess to such as they are invested

with by the authority which created them ; and it. d e t ~ r ~ i ~ ~ that, if suclr a power

as has been exercised in this case be not conveyed in express terms, it shall not be

supplied by intendment. T

might, indeed, have rested upon the opinion I have expressed on the first point to be

determined, because, having arrived at the conclusion that the Council does not

possess the power which it has assumed, it fallows, as a corollary, that it could not

exercise tha t power by the mode resorted to, nor, indeed, by any other mode. As,

however, both questions a re raised by the p~eadings, and have been dwelt upon in the

argument, I shall briefly declare my opinion on this second proposition. On the

hypothesis, then, that the Council does possess the power, it i s yet averred tha t it has

been illegally exercised ; in other words, that the warrant is informal and bad, inas-

much as it does not set forth facts or circumstances authorizing the apprehension

and detention of the Plaintiff. As I think this the principal, and a t the same time ta

decisive, objectim to the validity of the warrant, I shall abstain from dl commeiit;

upon others which were urged during the a r ~ u ~ e n t , namely, that the i ~ s t r u ~ ~ t l t

does not specify the time for which the Plaintiff was to be ~nip~isoned, or how he:

might obtain his liberty. In order then to determiire whether the wmrant be legal

under the head of cvbjeetion to which I have referred, it becomes essential to ascertaiil

the principle on which it is to be construed; and this principle in its turn depetlds,

iiot upou the intendment insisted on for the Defendants by erroneous analogy t!, the

Rouse of Commons, but [376] upon the nature and extent of the jurisdiction of that

P.C. 111. 737 24

And what is the effect of all this?

I now pass to the second question for my decision.

XI MOORE, 377 FENTON v. HAMPTON [I8581

authority by which the warrant has been issued. If the Council have a general

jurisdiction to deal with contempt, according to the course of the Common law, in

like manner as such power belongs to the House of Parliament, or Superior Courts

a t home, then the warrant cannot be impeached on the ground which I am coiisider-

ing. If, on the other hand, the Council have only a limited jurisdiction iii this

respect, deriving its efficacy solely from Statute, and out of the course of the Co~iimon

law, as that law has been received and is in force in this Colony, rhen no principle

can be clearer than that the warrant, in order to render i t valid, ought on its face

to disclose by direct averment, or necessary implication, the facts and circum-

stances relied upon, to justify, in this instance, the exercise of that jurisdiction. The

principle is as obvious as conclusive-concede a general jurisdiction to punish for

coiitempts, and pama facie every contempt is within it, nothing shall be intended to

be out of i t but that which specially appears so. Take a limited statutory jurisdic-

tion ; and the converse of this rule prevails. Nothing shall be intended to be within

it but such as i t expressly alleged. Even in the

highest Courts at home, where they exercise special or limited powers created by

Act of Parliament, the strict rule prevails, and their warrants or orders must show on

their face the justifying authority for their acts. C?wistie v. U n w k (11 Ad. and Ell.

373) ; Miiskett v. Drummond (10 Bar. and Cr. 153); Harrison v. Wriyht (13 Mee.

aiid Wels. 81 6). In the fornier Mr. Justice Coleridge thus expresses himaelf : ‘ How-

ever high the authority may be, where a special statutory power is exer-[377]-cised,

the person who acts must take care to bring himself within the terms of the Statute.

Whether the order be made by the Lord Chancellor or by a Justice of the Peace, the

facts which gave the authority must be stated.’ The case of L2ne.r v. Russel7, referred

t o in May’s ‘ Parliamentary Practice ’ (Edit. l855) , p. 69, would seein, as far as it

goes, to militate against this principle; but if the warrant were there viewed as

proceeding from part of a Court having general jurisdiction and acting within its

scope, under powers superadded by Statute, it may be reconciled perhaps with the

previous decisions, which at any rate it cannot, be taken to overrule. Assumiiig,

tlien, and I beg it to be understood only as an hypothesis, that the Council has the

power to commit for contempt others than its own members or officers, yet it neither

could be nor indeed has it ever beeii contended, that i t possesses a general power sucl~

as that exercised by the Houses of Parliament, by virtue of their own peculiar lam,

or by the Courts of Westminster by rir tue of the Coiiinion law. Such a positioii

could never be tenable as regards the former, after the decision of KezZley v. Carsou,

o r as regards the latter, after The King v. Clement (4 Bar. and Ald. 218), and others

to the like effect. As, therefore, the Council has not the general jurisdiction in

questioii, it necessarily follows, that i t has only a limited one, in which event i t as

neiessarily follows that its warrant must, on its face, disclose that the act which i t

directs to be done by virtue of its authority, in other words, the arrest and imprison-

nirnt, are within the scope of the limited jurisdiction which i t does possess. Cases

iiiiglit be readily accumulated to sustain this position, but I consider it unnecessary,

as most of them are collected iii the arguments and [378] judgment in the Exchequer

Chamber, in ?foulard v. Gosset (10 Q. Ben. Rep. 359, 411), which is itself decisive OIJ

the point. Hence on this ground alone that the Speaker’s warrant is perfectly

general, arid does not set forth the nature of the contempt, sliowilrg it to be olle for

which, under the Statute creating the Council, that body has authority to imprison,

I aril of opinior:, that such warrant is invalid; and, as such invalidity does lrot arise

froiii an imperfect statenleiit of the cause of arrest, but the ornissioli of all state-

ment establishing the jurisdiction to do SO, I am equally of opinion that the warralii

ix no protection to the Serjeant-at-Arms who carried it into execntiori. Considerill::

the magnitude and importance of the questions involved, as bearing directly upoli

tlie powers of the Legislative Council 011 the one hand, and the invaluahle right of

personal liberty on the other, I have thought it befitting to express u ~ y opinion at

large. I have carefully considered every argument that was advanced, eranlilled

every principle adduced, and consulted every authority a t nry cornmarld ; and ulldel

wliatever aspect I regard this case, applying to it what I believe to be the law whicll

it is my province to declare, and by which i t is my sacred duty to be bound, I call

srrive at no other decision than that the judgment on this record nlust be for tilc.

PI aintiff .”

Peacock v. Bell (1 Saund. 73).

738

mwrm v, ~~~~~~~~ IlS58) XI IYIOORE, 379

Mr. Justice Borne expressed his judginent as follows :-

“ I aiu of opinion that judgment must be given1 for the ~ ~ I ~ i n t ~ f f upon this

clomurrer. I concur with what has fallen from His Nonor the Chief J~lstice with rayi*rct

to the i~iformal~ty of the warrant, and I wish it were ~ i t h i n my power to assent to the

%.hole [3’79] of h i s elaborate ~udgment. Rut there i s one p o s ~ t i o ~ ~ f H i s Nonor’s to

which, although I concur in the j ~ d ~ n ~ ~ ~ l t , f cannot assent ; and I feel i t my duty as

a Judge, to state my o ~ i n ~ o n upon that in whicfi I imve the i n ~ s f o r t ~ i ~ e to differ f r o n ~

Bis I’Iono~. t do so, because, if there is a doubt upon a question of such importance

as the present, that doubt may be put ail end to Ity the ~ e g ~ s ~ a t u r e , whose liigh

province, whose ~ncun~hent and bounden duty, it is by some e n a c t r n ~ ~ t to clear up a

doubt. That which has 0nibarrassed

me, aiid which eni??arr~s~ireIit I cannot get over, is the 24th sectiou of the 9th

Geo. IV., c, 83. That section of the Act says :--‘ AI1 Laws und S ~ t u t ~ in farce

within the realm of ~ ~ i ~ l a n d . ’ Now iR

it to be done? If a Law of the realiii o f

England i s applicable, or can be applied, it must be a ~ p ~ ~ ~ , whosoever may be the

object of its app~~cation, by no ~ n t 0 r ~ r e t a t i o i ~ , excap% such as the SttatUte itself

affords j and if the Statute gkes no rule of interpret~t io~i , there is IIO other by whieli

i t may be done, and the applicabil~ty or n o n - ~ ~ p p l ~ e a ~ ? i l ~ ~ y of the Law alone remaink

to be co~rs~dered, and this Court is directed by the same Act of P & r ~ i a i ~ e i ~ t in the

frrst instance te deoide that ~ ~ ~ e s t ~ o ~ ~ , ~ i a ~ m l y , Is the Law a ~ p ~ i e a b l e ; can it be applied?

That the ‘ Lex et cvmwetudo IJat.limmenti’ i s a Law in force within the realm of

~ n ~ l & i ~ d cannot be denied. It i s so laid down by h r d Coke in ti is First Tnstitute.

and i s placed second in the list-First, the Law of the Csown ; second, tho Law of

P a r l ~ ~ n i e I ~ t ; third, the Law of nature; fourth, the ~ o n ~ i i ~ n law. But, if i t be

argued in the presenk instance that by the words ‘ all Laws ’ the ~ ~ r ~ ~ t i l o n law

was only introduced, and by that great d ~ c ~ a r a t i o n of the ~ o ~ ~ r i i r o ~ i law, Xiagiiir

Citarta, no nmn shall be i n ~ p r ~ s o n ~ d but by the judgIne~ t of his peers, or the law of the

land, therefore, no man shall be arrested or imprisoned by the Law of Parliairieirt,

I deny the whole propos~tioi~, iind assert, that it i s an ~ ~ ~ s u ~ ~ p t ~ o ~ ~ incapable of

t a t iond proof, thet the words ‘ all Laws ’ mean the C o ~ ~ ~ ~ ~ o ~ ~ law only ; and I also

a*nert that the words T.taw of the Land, Legeru te?+re,’ in hftlgna ~ h ~ ~ ~ , are not

cviifined to the Common law, but take in and con~prehend all other laws in force witfiiri

the rwtini, m d a i ~ ~ o i ~ ~ s t the rest the ‘ Law of P a r l ~ ~ t ~ i e , ~ ~ t , ’ mid so it m s expressly

decided by d l tvhe Judges in the ease of I’&eJf v. ~ ~ ~ ? ~ ~ ~ a ~ e . Now, the w r d s of OUP

Statute a re : ‘Mi Laws and Statute6 in force within the realm of England at tlrci

time of the passing of this Act.’ Again, if it be contended, that the 24th section of

the Statute, 9th Geo. IV.. c. 83- be merely d ~ ~ l a r a ~ o r ~ , t h i s view of the Statute wouIcl

contraill a double surdit^. it^. R e c l a r ~ t ( ~ r y of what ‘h’ Of the C t ~ i ~ ~ ~ ~ ~ o ~ ~ h wP Why this

n-auld asxume that the Imperial ParIianient was ignorunt of the c ~ ) ~ s t i t i i ~ i o I ~ a l

ruasiiii that the ~ o r t ~ i i ~ o r i law is the birthright of i41t ~ 1 1 ~ i ~ s I i ~ i 3 ~ 1 ~ , s ld t ~ ~ o u ~ h t i t

n e c e s s ~ ~ r ~ to declare that the ~ o n i i ~ ~ o ~ ~ law should be in force in New South TVafes

and Vrin Dieman’s Land, as if there could be a doubt that every Eiiglishnlnll

carried his ~ ) i r t ~ ~ r i ~ ~ ~ t with him to every settled Colony of the realrn of ~ n ~ ~ a n d .

Tlik is too great an absurdity for me to as6ume. Secortdly, the I ~ ~ t ~ ~ e r ~ a i Parlin-

nmit, in order to prevent doubts, ‘ for all d e c ~ a r ~ ~ t o r ~ e~~actnients are for this sole

purpose,’ as to what Statutes were in force in Kew South Wales and Vim D i e ~ i ~ n ’ ~

Laird, declared hy this section of the Act, 9th Geo. TV., e. 83, that all Statuten

in force witliin the realm of England at the time of the ptasiiig of that Act rtnd thosu

now in force in New South Wales nrtd Van ~ e ~ a ~ ~ ’ R Idand be applied in the admi~iis-

trittion of justice. This again implies that the Irnperiai Parliament ’;vere eqriaIIy

i ~ [ ~ o ~ ~ ~ ~ ~ t of this other constitutionaR mttxim, namely, that no. Statutes are in force it,

any Colttnv nfter n settlement, unlees sucb Colony be expressly nailled irr those

Statutes. The ~ ~ n g u a ~ e of the Statute is e n a c t i ~ ~ ~ , ith

object i p to enact, in effect, i t does enact and not declare: and in this view of the

i t would seem that all laws other tlinn the ~ o ~ ~ ~ i o ~ i law which was ~ ~ r e a d ~ r in force

in the Cohlrg shodd be ~ n t r o ~ u ~ e d and applied, RO far as they could he applied, ill

the ~diiIii~istrittion f justice. Now, it i s said that the ‘ Le3 ~ ~ r Z i a n ~ ~ ? z ~ ~ ’ can~lot he

~ ~ ~ p ~ ~ e d in the &di~~inis~rat ior i of justice in the Courts of this Colony, tiltkt it belo lp

not to this Court to m d d t e with it. WI.lene.i.er R ease

I will now state niy reasons for so d i ~ e r ~ n ~ .

IVho is to liniit the terms of this statute^

Certainly by no argument ua! inferento.

I shall not assume this.

I: drnv the propositio~.

139

X I M ~ ~ R E , 381; ~~~r~~ (0. ~ ~ ~ ~ ~ ’ ~ 0 ~ [1858]

arises which involves in its consideration the ‘ Lex ParJiarneiafi,’ this Court must

meddle Tyith it, must judge of it and by it, where that is necessary. Thus in that,

znemorable case of Rex rind Beginn v. KmlEys (2 Salk. 509), it i s decided that the

‘ Lez ~ ’ u ~ l ~ ~ ~ ~ ~ e n t ~ ’ is to be regarded as the law of the realm; but supposing it to be

a particular law, yet if a question arises upon it, determinable in the Kings Bench,

the King’s Bench ought to determine it ; to the same ef€ect is the case of ~ ~ ~ ~ ~ ~ r f 37.

~ t ~ e ~ ~ ? ~ ~ , cited in 2 Salk. 513. Again, if we suppose a time of mans laugh~r , arising

out of obedience or disobedience to the ‘ Lea Parliurnenti,’ that proceeding niust be

judged of i n this Court, and the party accused [382] must be either excused or

Gondenmed according to that law which justifies or does not justify the act, and this

ton by the Conzinon law. eref fore, in this Court the ‘ Lez ~ ~ r ~ ~ ~ ~ n ~ ~ ’ could be

itpplied in tho a d ~ ~ n ~ s t ~ a t ~ o ~ of justice; and what that law is, i s to be found in the

Iiolls arid Jouri~als of ~ a r l i a ~ e ~ ~ t , One other a r g u ~ n e ~ t may be! used against the

a ~ ) p ~ i c ~ ~ ~ i l i t y of the ‘ Le$ ~ u r l ~ ~ ~ r ~ ~ e r ~ ~ i ’ in this Colony, and that is, that the whole law

of Parliariient must be introduced and applied, or none of it. The answer to such

an argument is, that the Statute itself has provided for such a case by enacting that

only SO far as any law is applicable i t shall be applied. The Imperial ~ i s ~ a t u r e

evidently tended and had in view to egisl late for the growing wants and ever-

changing c~rcui i~s~ances and cond~ t~on of a new Colony just entrusted with legis-

lative powers and functions, and, therefore, gave to it a participatior~ and right in all

the Laws and Statutes of the nation in the most general terms, Ieaving to the

Colonial Legislature created by the same Statute, and to the Judges of the Court also

created by the same Statute, to d e t e r ~ i I ~ e what laws of the realm of England, and

bow f a r these laws, could be applied to the a d m i n i s t r a t ~ o ~ of justice. I may here

rertiark, that in the year 1833, by the Statute, 4th Gea IV., c. 96, a Court was estab-

lished in Ne~v South Wales, and 1egisIatoriaI powers first granted to the Governor of

that Colony (of which Van Dieman’s Land was then a d e p ~ n d e ~ ~ c y ) to be exercised

with the advice of a Couneil of five or seven persons ; in 1825, by authority of the same

Statute, similar powers and forms of legislation were extended to this Colony. A

cursory perueal of this Statute will suffice to show, that this Couucil was not [383]

intended to be any check upon a Governor, who could even make laws when the

majority or whole of the Council dissented ; it is not to bo expected, therefore, that

it would contain such an enactment as that c o ~ t a ~ n e d in the 24th section of the 9th

Cho. IV., e. 83. And when a Council increased threefold in number, having ex-

tended powers, and capable of coercing any Government measure by its majority,

and in fact holding the strings of the public purse, was created in 1628, by the 9th

Coo. IV., c. 83, then it was itatural to expect that such a provision as that to which

I have a ~ ~ u ~ e d would be made, and accordingly, it was made by the 24th section of

that S~atute , and in that respect this S t ~ t u ~ is made i~erpetual. Now, the Statute,

13th aiid 14th Vict., sect. 59, still further extends the priiiciple of l e g ~ s ~ a ~ i o i ~ , intro-

ducing the elective element, and it i s under this Statute of the Queen that the Legis-

lative Council of Van Diemaxi’s Land first tested their power under the 24th sectlon

of the Statute, 9th Geo. IV., C. 83, to compel the attendance of a witness before a

C o ~ ~ m i t t e e of their House, and for a con te~p tuous d~sobedience of their s u r ~ ~ n ~ ~ n s to

prison that witness by the ~ a r r ~ I ~ t of their Speaker, as for a contern~t. The view

and position I take of. this ease in giving my ~ u d ~ m e n t upon the demurrer, i s this,

that it is my duty to say whether the law of Parliament applies to this case, and

whether that law has been followed in practice, and to leave to the legislature the

Yettlernent of any dowbt which may arise on the subject ; and my opinion is, that the

law of Parliament does not apply to this case,and that that law has not been followed by

the Council in $his case. The cases so often cited of ~~~~~~2~~~ r. Burr.ett, atid ~~~~~~e~

v. G u r ~ ~ ? a whether [384] the latter overrules the fornier or not, cfsase, in niy view of

the case, to have any other effect than that of shawing the m u t a b ~ ~ i t y of ai1 tikings,

itot excepting the opinion and judgment of the highest Tribunals of the reaIn. rile

whole list of authorities brought forth to &ow tha t powers of c o ~ n ~ i t ~ e n t for eon-

tempts ean never be implied, but must be given expressly by Charter or Statute, a re

admitted by me at once ; but admitted not applicable to the present case, becauee,

by the Statute, 9th Gee, IV., e. 83, sect. 24, 1 hid, that the law of Bartiamerrt xvag

iii~roduced a~I~ongst other laws. Here I desire not to be niisur~derstood, and in order

~0 guard ihgaixist error, I say that the whole of the law of Parlianlent is not intro-

140

FENTON v. AMPT TO^ [1858] XI MOOBE, 386

duced, because the whole is not applicable to this Colony. None of the privileges,

properly so called, of Members of Parliament, as from arrest, civil or other personal.

privileges, none of the powers of Parliament of determining what are, and adjudi-

cating upon contenipts not committed in face of the House, but such powers only as

a re incident to their high functioris of legislation, and upon that to the maintenance

and discharge of their office and duty, belong by law to the Legislative Ciouncil of

this Colony. The examination into whatever belongs or relates to the peace, welfare

and good ~ o v e r n m ~ n t of this Colony, and the power of conducting such examin ti t’ ions

by witnesses, and conipelling their attendance by arrest where necessary, are the

powers which by the law of Parliament they possess, and are essential to the discharge

of those duties committed to them by the Imperial ~ar l ia inent . In the present

instance, let me ask, how has the Council executed this their power? But, I am sensible,

that here I may [m] be met by a question, namely, If the law of Parliament be in

force i n this Colony, hov is this Court to inquire or decide whether a contempt has

been committed, of which that Council has, if the law of ~ a r l i a r ~ ~ e n t be in force, the

sole cognizance! My answer is, that, as I have before stated, the whole law of Parlia-

ment is not applicable and not in force in this Colony ; that as the Legislative Council

i s not transcendant in its powers, but in a sense made inferior to this Court, Khich can

annul its Ordinances when made contrary to law, that is contrary to and exceeding

the powers vested in it : in a word, as the Council is of limited power, therefore, the

Court can look to its proceedings, and decide when i t exceeds its powers and

functions. And it by no means fol1osp.s that because the whole law of Parliament

is not in force, and because the Court can look a t the Council’s proceedings, that,

none of the law of Parliament is in force or applicable. I t has been argued, I should

here notice, that from the dignity of the House a respectful intendment should be

made in favour of the warrant issued by its Speaker, that it should be viewed by

this Court to have issued for some contempt which the Rouse had power to punish.

I can only say, as Mr. Justice Coieridge said, in Bowam3 v. Gosset, ‘ I shall presume

nothiiig.’ The warrant, upon

the face of it, is general, and assumes that the whole law of Parliament is in force,

that, ally and every contempt, whatever the Council may resolve to be a contempt,

i s punishable by the Council: this, indeed is not the law. Contempts in face of the

House obstructing the functions of legislation, and impeding its action, are within

the law of Parliament, [3i’$6] and may be dealt with by the Council by that law.

The Council is entrusted with tihe power, and has the right to inquire into every-

thing which it concerns the peace, welfare, and good gove r i i~en t of this Colony, for

them to know; and they themselves, I think, are entruskd with the determintttion

of what falls within that category: co-extensive with the right to inquire, niust be

their authority to call for the attendance of witnesses, and to enforce it by arrest when

disobedience makes it necessary, and this by the law of Parliament j but they have

not followed that law: instead of ordering a witness to attend in custody at their

bar, after disobedience of their summons, and so enforce the witness’s attendance,

they have a t once, in his absence, resolved that he is guilty of contempt, proceeded

to punish, and ordered their Speaker to issue his warrant for his iniprisormlent.

This act was contrary to the course of the law of Parliament, and clearly beyolld the

power enjoyed by that House, and i s alone sufficient reason for allowing the

demurrer.”

The present appeal was brought from this judgment.

Sir Frederic Thesiger, Q.C., and Mr. Streeten. for the Appellmnts.--The questioll

in this case is not one regarding tlze privilegw of the Legislative Council of r a l r

Dieman’s Land, as i t has been treated by the Chief Justice of the Suprenle Court of

that Colony, but regarding the power of the Legislative Council as a Court of inquiry

to enforce obedience to its orders. The whole case is upon the record, and the facts

disclosed in the pleas amount to t~, justification of the wrongs [387] mentioned in the

declaration, and, we submit, tha t the judgment allowing the denmrrer to such pleas

cannot stand. The power to make inquiry being inherent to a Suprenie Legis-

lative body, the Court had no jurisdiction to examine the validity of the warrant.

The question regards the constitiitior~ of the Legislative Council and the authority

possessed by that body; and depends on the true construction of the Statute, 13th and

14th Vict., c. 59. Section 7 of that Statute, provides that it shall be lawful for the

741

How, 1 say, has the Council executed their power?

XI MOORE, 388 FENTON V. HAMPTON [ 185 81

Legislature, then by law established, in the Colony of Van Dieman’s Land, by Laws

or Ordinances to be for that purpose made and enacted in the manner and subject

to the conditions then by law required, t o establish within the Colony of Van Dieman’s

Land, a Legislative Council, t o consist of such number of members, not exceeding

twenty-four, as it shall think fit. In pursuance of this authority the present Legis-

lative Council was established by the Colonial Act, 15th Vict. No. 1, sect. 14. h

previous Statute, 5th and 6th Vict., c. 76, sect. 27, empowered the Council to make

Rules and Orders for the business of the Council, and by the 13th and 14th Vict.,

( a . 59, sect. 12, those rules were confirmed and made perpetual. The authority and

power of the Legislative Council being derived from this Statute, must be construed

by its enactment. The power to institute preliminary inquiries before proceeding

to legislate must be incident to every Legislative body; such a power is quite distinct

from any parliamentary privilege, and must have been intended to be conferred by

the Statute, 13th and 14th Vict., c. 59. Then if such power belongs as of course to

the Legislative Council, as we submit it unquestionably does, it follows, that that

body must [388] have also the power of enforcing the exercise of their authority.

Here, therefore, was a case in which, in the exercise of that authority, the Legislative

Council thought fit to summon a particular witness, and that witness refused to obev

such summons. Can i t be argued that the Legislative Council had no power to

summon? For to that extent the argument must go, if the witness has the option of

attending or not attending to such summons. They cannot proceed either criminally

or by civil action against him, and have no redress, if not capable of enforcing their

summons by commitment. He, however, refused to attend to the summons, and then

the Speaker issued his warrant, and he is arrested; upon which this action is

Ilrought. Now, the Chief Justice of the Supreme Court treats this case as a case of

privilege, and as governed by the case of Keilley v. Carson ( 4 Moore’s P.C. Cases, 63).

That case, however, was a question of assumed parliamentary privilege, not of the

exercise of power incident to Legislative action. “‘here the House of Assembly in

Newfoundland claimed the privilege of Parliament to commit for contempt, and the

Judicial Committee held, reversing their previous decision in Beaumont v. Hnrrett

(1 Moore’s P.C. Cases, 59), that no such power was incident to that Assembly. That

case is, therefore, distinguishable from the present. But independent of the wide

difference between the question of privilege and power, it must be observed that the

House of Assembly in Newfoundland, as well as the House of Assembly in Jamaica,

owe their origin to and possess their authority under Letters Patent from the Crown,

and were not created by an Act of the Imperial Legislature. It might be questioned

whether the [389] Crown ex mero wiotii ran confer such a privilege of Parliament as

the right to commit for conteiiipt, but it cannot he contended, we submit, that if the

Crown can constitute a Legislative Assenibly, it cannot give it all necessary powers

for the exercise of its authority; and surely thix power of enforcing the attendance

of witnesses in a preliminary inquiry must be one such. The whole question in

l i d l e y v. Cavson was one of privilege. The learned Jndge, in the judgment, says,

1). H8,--“ To the full extent of every measure which it may be really necessary to

ildopt, to secure the free exercise of their Legislative functions, they are justified in

acting by the principle of the Common law.” This shows the case t o have proceeded

entirely on the question of privilege and not of power. Mr. Justice Horne considered

that we were asserting a right to Parliamentary privilege, and that not having pro-

ceeded to bring the Respondent before the bar of the Legislative Council, we were

within the principles laid down in Hocra~d v. Gosset (10 Q. Ben. Rep. 359), The case

of the Sheriff o t il!idd7esex ( 1 1 Ad. and Ell. 273), Burdett v. Abbot (14 East. 137).

h t we make no such claim as those cases establish ; we rely entirely on the acts donc.

011 this being a power possessed by the Legislative Council UE incident t o their Legis-

lative authority, a matter within the functions of the Council, which must have power

to protect itself from impediments t o the due course of inquiry, and such power we

claim. It is not necessary to make any claim to their possessing the Lex et consue-

tudo Z ’ n , Zicimenti. No indictment could be sustained for non-compliance with the

suniinons of the Legislative Council, for to sustain [390] an indictment the refusal

must be in a judicial proceeding, Goaset v. H o ? u c z d (10 Q. Ben. Rep. 452), and the

act vomplained of must he a breach of a public duty.

Sir Fita-Roy Kelly, Q.C. , Mr. Fleming, Q.C., and Mr. F. M. White, for the Re-

742

F~~~~ 21. ~A~~~~ [I8581 XI ~ ~ O ~ , 391

spondent.-The authority claimed for the Legislative Council of Van Dieman’s

Land does not belong to that body ia their character of a Legislative body like the

Eouse of C5mmons ; as, of course. it canno6 claim khat power by usage, nor has it any

judicial functions. This has been solemnly decided by the Judicial Committee,

and there is nothing in this case to take i t out of the rule laid down by the Committee

ill ~ ~ e ~ ~ ~ e ~ v. Camo~. The power, if it exist, must be either inherent in the Legis-

lative Council as a representative Assen~bly, by the Comnlon law of the Colony, or it

must be derived from express enactment of the 13th and 14th Vict., c. 59. Section

14 of that Statute enact8, that the Governors of the several Colonies, with the Legis-

lative Councils, ‘‘ shall have the au thor~ty to make laws for the peace, welfare, and

Food government of the said Colonies respectively.” The Commission for establish-

ing the Legislative Assembly in Newfoundland declares, tha t ‘’ the Governor, with

the advice and consent of the C o u ~ c i ~ and Assembly, or the major par t of them

respectively, shall have full power to make, cons t~ i tu~ , and ordain Laws, Statutes

and Ordinances for the public peace, welfare, and goo’d government of the Island

and its dependencies.” The authority conferred i s in both cases co-extensive and

expressed im t ~ ~ t ~ u ~ uerbzs. The eon-[3g~]st.ruction, therefore, must be the same,

and the decision in ~~~~~~ v. Cai?*~a held to be conclusive. But, if the objection to

the assunled power i s not fatal, 0x1 the authority of tha t case, the possession of such

a u ~ ~ ~ o r i t y by the Legislative Council i s not weU pleaded. The pleas are bad ; they

show a case of inquiry before a &leet Conmittee, setting out its nature, but without

any averment, that such inquiry was with a view to legislation. The power of the

Legislative CounciI to commit for contempt does not appear on the warrant, which

involves of course the power assumed: the contempt complained of is not for not

appearing a t all, but for not appearing before the Legislative Coumil, after a

report from a Select Committee of that body that the ~ e s p ~ n d e n t had neglected to

obey a sumInons requiring him to appear before them, tu be esamined as a witnese,

but the pleas assign no cause os reason for his attendance. The resolution of the

Legislative Council is , that @he Respondent was guilty of a contempt, and the

warrant thereupon issued to the SerjeantiatArms states no reason for his conx-

mitmeat, or tha t h i s refusal to attend at the ba r as required was conteniptuo~i~.

I t might have been that the Order in the first instance for his attendance a t the bar

of the House was to explain his disobedience to the 8 u ~ ~ ~ o n s ; he might have shown

that he was exempt from giving the e v i d e n c e . ~ ~ u ~ r e d , had he had notice what tlie

evidence required was: but no instruction or notice is given hlin throughout all

the p roc~d ings , and he is consigned to the custody of the Serjeant-at-Arms in total

ignorance, as far as appears on the record, of the cause for which he i s incarcerated.

The warrant, therefore, is in itself invalid and void. It is Rcareely iieeessary to

inquire into the rules segarding 1392) the authority of a Court to commit ih witnebs

6% ~~~~, as it is not within the power of the Court of Justice, ~~~~~~~ v. Crook

(6 Nee. and %‘els. 615). The Legislative Assembly is not a Court of Justice, it is IIO

part of a High Court of Parliament. like the House of Commons, The right ctf

preliminary inquiry, which it i s no par$ of our case to deny, even admitting the

argument on the other side, that it is incident to the Council as a Legislative hody,

gives no authority to insist upon the attendance of eitnesses, A Committee of the

Council have no a u t ~ ~ o r j t y o a d ~ ~ i n i ~ ~ r an oath, and the t ~ t ~ ~ o n ~ given before

them could never be evidence, but onIy i n f o ~ a t i o ~ ~ . It is quite clear, therefort.,

that the Respoiideiit’s action W E ~ B well brought, and tha t the judgnwnt in farour of

the d e ~ ~ i u r r e ~ to tbe pleas of iustifica~ioa pleaded by the ~ p p e l ~ a n t a was right, and

must be sustained : all the a u t ~ o r i t ~ e s upon this point were fully stated and applied

by the learned Judges in the Court below. The Statute, 13th and 14th Vict., C . Bn,

wct. 14, ~on ta ins the very words that a r e found in the Letters Patent creating the

Legisative Council in ~ e ~ f o u n d ~ a n d , an which have been interpreted by this Court

i t 1 Reilley v. Carson (4 Moore’s P.C. Cases, 83); and that authority is conclusixre.

The j u d g ~ e ~ ~ t of the Court belraw treats this head of the case very fully.

Sir Frederic Thesiger in reply.-No answer has been given to the d i s t i ~ i c t ~ ~ ~

we take between a privilege and a power: all the a r g u ~ e n t a and the a u t h o r i t i ~ ~

cited either by the Respondent’s Counsel here, o r referred to in the judgment of

the Chief Justice below, omit to notice that distinction. It i s upon this ground.

however, that we con-[393]tend that the case of KeiJiey v. Carson 14 Afoore’s P.C., 831,

743

XI MOORE, 394 FENTON ‘u. HAMPTON [1858]

and the authorities up011 wliich that case is founded, do not apply, We do not

impeach that decision. Here there was no question of Pa r l i a~~~eI i t a ry p ivilege ;

the simple question was one of jurisdiction of a Legislative Council to enforce its

own orders : that i s a question of every day’s occurrence ; the treating it as one of

P a r ~ ~ a ~ i e n t a ~ privilege that has produced all the confusion. We do not impeach

the decision of this Court in h‘eitley v. Caison [4 Moo. P.C., 831, or desire to set up

the case of Becturnont v. Burredt [I Moo. P.C., 591: we simply contend that those

cases do not apply.

The aupeal stood over for consideration.

Their Lordships’ judgment was nov proiiouriced by

The Lord Chief Baron Pollack (17th Feb., 1868).--This is an appeal from a

judgment of the Supreme Court of Van Dieman’s Land, given in favour of the

Respondent (the Plaintiff below), who had brought an action against the Appellants,

Fcnton. the Speaker, and Fraser, the Serjeant-at-Arms, of the Legislative Council

of Van ~ ~ e ~ a n ’ s Land.

The Colony is a part of Her Majesty’s dominions, by occupation, and not by

co~iquest. The authority of the Legislative Council is derived from the British

I’arlinruent, under tlie Statute, 13th and 14th Vict., c. 59. T”he Council consists

of thirty-three inenhers, one-third of whom are nominated by the Crown, the other

two-thirds are elected by the inhabit.ants. The Council, no doubt, possess a Legis-

lative authority; they iiiay make Laws or Ordinances, which (on receiving the

sanction required by law) heconie binding within the Colony. In this sense they

possess Supreme legislative power.

[a941 The netion brought by the Respondent in the Supreme Court arose out

of thc: following circurustances :-

During a session of the Legislative Council in the year 1555, the Council ap-

Iminted (in accordance with their rules and orders) a Committee of their own body,

to inquire into certain alleged abuses in the Convict Department, and the Council

resolved that, the C o ~ n m i t ~ e should have leave to send for persons in order to

prosecute the inquiry. The Respondent, Haiupton, was deemed a material and

necessary witness in the prosecution of the inquiries. Thomas George Gregson

(who had been duly elected Chairman of the Seleot Commi t~e ) issued a sumnioiis

to the Respondent to appear personally before the Select Committee, a t a certain

time and place, to be examined as a witness on the subject of the inquiry. The

sunimons was duly served. The Rcspondent (i t must be assumed for the present

purpose) wilfully, i d without reasonable excuse, refused and neglected to appear,

and in coiisequuitce the Select Committee was obstructed (so f a r as this was an

obstruction) in tbe inquiries, and the Council was prevented from obtaining their

report : thereupon the ~ e ~ i s l a t i v e Council, being informed of tltese circunistances,

resolved that the Respondent be desired to attend a t their bar, a t the Council’s House

a t Hobart Town, on a day and hour named.

The Respondent was duly served with a summons t o attend, but would not obey

it, and wilfully and contemptuously, and without reasonable excuse, disregarded

the summons and order, and refused to attend. The Council then resolved tha t the

Respondent was guilty of contempt in disobeying the resolution of the Council and

the summons of the E3951 Speaker; and t’hey further resolved, that the Speaker

should issue his warrant for the apprehension of the Respondent, to be kept in the

custody of the Serjeant-at-Arms during the pleasure of the Council,

111 cnmpliance with that resolution, the Speaker issued his warrant, and the

Serjeant-atrArms executed it, and took the Respondent into custody; and this is the

trespass complained of in the Court below.

The defence to tlie action wits founded on the circumstances above stated. which

n-ere respectively pleaded by the Speaker and the Serjeant-at Arms, in due fornt,

each of them professing to justify his interference by the authority of the Council

to make the resolutions and to enforce them, by issuing the Speaker’s warrant, and

apprehending the Respondent.

The Plaintiff below demurred generally to tliase pleas, and the Supreme Court,

probably acting on the authority of the case of TiezZey r. Carson, decided in tl.ris

Court in 1842 (& Moore’s P.C. Cases, 63), gave judgment for the Plaintiff, holding

1744

FENTON 3. HAMPTON [l858] XI WOORE, 396

tha t the facts set forth in the pleas of justification did not constitute1 a defence

a t law.

The question was argued before the Coriiniittee at considerable length, and marry

poircts were raised and discussed, upon which n e think it unnecessary to form any

opinion in order to decide the present question. The principal point is, uii-

doubtedly, of grmt importance, involving, as it does, 011 the one hand, the con-

stitutional rights and authority of the Legislative bodies in various parts of

Her Majesty’s Colonial territories ; and, on the other, the right io personal liberty

(unless deprived of i t by law), which Eer Majesty’s subjects take with thein, as par t

of thois [396] birthright, to every portion of Her dominions. The subject is not

new to this Court; it has been discussed before on more than one occasion. In the

case of B e ~ ~ ~ o ~ € v. Barrett, from Jamaica (1 Moore’s P.C. Cases, 59), it wths de-

cided, that an Assembly possessed of supreme legislative authority had the power of

puniahing contenipts; tha t the power was inherent in sucli an Assembly, and inci-

dent to its legislative functions; and, according to tlie judgment in that case, every

Colonial Assembly or Council possessed the sanie authority to punish for contenipts

which the House of Commons hab exercised in this Kingdom for a lorig series of

years.

But, in the year 1842, the sanie question, in substance, came before this Cotir-

iiiittee on an appsd from Newfoundland [Keikley 17. Cciiso~2, 4 Moo. P.C. 631, and

was twice argued ; the second time before the Lord Chancellor, tu-o iioble inembers

of the ComIi~ittee who had formerly held the great seal, the three chiefs of tile

Common Law Courts in Westminster Hall, two out of the four ivreiiibers of the Court,

who were present at the decision of the case of Beautuont v. Bto i *e t t , the Vicc-

Chancellor and Dr. Lushington ; and, on that occasion (4 Moore’s 2.C. Cases, 84),

their Lordships “ were of opiriion, tha t the House of Assembly did not possess the

power of arrest, with a view to adjudication, on a complaint of eontempt conimitted

out of its doors.” They held that the power of the House of Cominons in Englalid

was par t of the ’‘ Lex et c ~ ~ ~ ~ u ~ ~ ~ o ~ t ~ ~ ~ i e ~ ~ f ~ ” ; and the existence o that pones

in tlie Coniinons. of Great Britain did not warrant the ascribing it to every Supreriie

Legislative Council or Assembly in the Colonies. We think we are loouiid by the

decision of the caw of l iedley v. Carson [4 Moo. P.C. 631, the greater au-[397]-thority

of which, a.6: compared with B e ~ ~ 7 ~ ~ ~ ? ~ t v. Bczrtett, it is quite unnecessary to enlarge

upoir. An attempt wa8 made to distinguish the present. case from those cited, the

authority of the Legislative bodies in thoae caws being derived from the Crown;

whereas, the Legislative Council of Van Dieman’s Land derives its legislative

authority froni a Statute of the Imperial Parliament. We think these is no founda-

tion for this distinction ; and that if the Legislative Council of Van Dieman’s band

cannot claim the power they have exercised on the occasion before us, as inherently

belonging to the Suprenie legislative authority which they u~~doubtedly possess,

they cannot claim it under the Statute as part of the Common law of England

(including the ‘( Lex et consuetach I’arlkimenti ”), transferred to the Colony by the

9th Geo. IV., c. 83, sect. 24. The ( ‘Lex et c # r ~ s ~ e ~ ~ d o a ~ ~ ~ ~ { ~ ~ ~ e n t ~ ” apply exclu-

sively to the Lords and Commons of this country, and do not apply to the Supreme

Legislature of a Colony by the introduction of the Common law there.

It was argued, however, that as the Legislative Council had the power to make

the inquiry out of which these proceedings arose, as inherently belonging to their

Supreme legislative authority, the Supreme Court had no authority to esamiiie intn

the validity of the warrant ; but, me are of opinion tha t i t sufficiently appeared by

the pleas that this was an arrest with a rim to punish for an act alleged to be a

contempt, but committed away from the House of tho Assembly. Thcir Lordships,

therefore, are of opinion, that i t was not justified by the pleas, and tha t the judg-

ment below ought to be affirmed, with costs; and we shall advise Her Majeaty

accordingly.

[Mews’ Dig. t i t . COLONY, I. GESERAL PRINCIPLES, 6. L e y i d a t u ~ e s ; also tit. PARLIB-

MENT, A. l ? ~ ~ e ~ ~ ~ ~ ~ a g e ~ e n ~ , 4. Other Matters. S.C. 8 St. Tr. (N.S.), 873.

Followed in Doyle v. Falconer, 1866, L.1L. 1 P.C. 329. See notes to Beaumont

v. Barrett , 1836, 1 Moo. P.C. 81; and Keilley v. Carson, 1842, 4 Moo. P.C. 63;

and see also Fielding v. Titomus (1896), A.C. 600; 22 Vict. (Tasm.), Ne. 17;

V.C. 111. 74.5 34a

XI MOORE, 398 LEMPRIERE ( I N B E ) [ 18 5 81

1 9 Vict. (Tasni.), No. 25 ; Printed Cases in Privy Council Appeals, Colonial.

N.S.R. 184’7-1859.1

[398] O S APPEAL FROM THE ltO’J7ST, CO1:lZT O F THE ISLAND O F JERSEY.

ITS RE I iEnIPRIERE * [Fel). %, 18681.

Appellant admitted to appeal 112. fo / ’ / tLo paupel is.

This was an application for liberty to prosecute an appeal L I L forma paupel 1s

without entering into the usual sureties, and to have Counsel and attorney assigned

to tlie Petitioner. l‘he application was supported by an affidavit made by the

Petitioner, that he was not worth 2 5 , save his wearing apparel, and the matter in

the cause, and a certificate of an Advocate of the Royal Court of the Island, that the

Petitioner had good and sufficieiit grounds for appealing.

Mr. Buller appeared for tlie Petitioner.

Upon this affidavit aiid the certificate their Lordships made the Order a8 prayed

KO steps have, however, been taken to prosecute the appeal.

(see upon this point, Ih .outr /d v. D u m t r ~ e s y , 6 Moore’s P.C. Cases, 412).

[Mess’ Dig. tit. COLONY; 111. APPEAL TO IVY COUNCIL; 6. Practwe,

1. In fo ram puper’lS.1

13991 ON APPEAL FROM THE COURT OF QUEEN’S BENCH FOR

LOWER CANADA.

JEAS 1,OI‘IS I~EdUDIZP,-Apprll,rl~t ; The MATOIZ, BLIIERMEN and CITIZENS

of the City of Montreal,-Respondents t [Feb. I, 5, 18581.

13:- the Canadian Act, 14th and 15th Vict., c. 128, sec. 66, the Corporation of

Montreal are authorized to purchase and acquire, or to take lands for tlir

purpose of public improvements in that City, the value whereof, if disputed,

is by section 68, to be ascertained at a Session held by the Justices of the

Peace a d determined by a jury specially surninoned for that purpose.

Held (reversing tlie judgment of the Court of Queen’s Bench for Lower Canada),

that tlie jury were not of themselves qualified to assess the value, without

evidence of experts, aud tha t a party claiming compensation for land taken

I)y the Corporation was entitled to produce witnesses as to the value : there

being no express words in the Act, or necessary implication, to take away the

right to have witnesses sworn and examined, and that the Justices of the

Peace nere wrong in refusing to take such evidence.

Held further, that the Justices being under the Act competent to svear a jury

were coiiipetent to swear witnesses on the Claimant’s behalf [ll Moo. P.C.

4251.

In order to constitute acquiescence, or waiver, i t must be shown, that the pal ty

said or did somelhing to give the Court a jurisdiction i t did not possess.

Mere respectful acquiescence, or submission to the ruling of a Court, will

* Present: The Right Hon. The Lord Justice Knight Bruce, the Right Hon.

T. Pemberton Leigh, the Right Hon. Sir Edward Ryan, the Lord Chief Baron of the

Exchequer (The Right Hon. Sir Frederick Pollock), and the Right Hon. The Lord

Justice Turner.

t Present: The Right Hon. The I m d Justice Knight Bruce, the Right Hen.

T Peml)erton Leigh, the Lord Chief Baron of the Eschequer (the Right Hon.

S i r Frederick Pollock), and the Right Hon. The Lord Justice Turner.

746

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