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Colonial Cases

Keeley or Kielly v. Carson Kent and others 1841

[parliamentary privilege]

Keeley or Kielly v. Carson, Kent and others

Judicial Committee of the Privy Council
4-6 January 1841, 11 January 1843
Source: The Times, 5 January, 1841

  This was an appeal from the judgment of the Supreme Court of St. John's, Newfoundland, and the controversy to which it relates arose out of circumstances which in many respects are similar to those which produced the late case of "Stockdale v. Hansard" in this country. It appears that the appellant is surgeon to the hospital of St. John's, and that he has the management of that institution. The respondent, Mr. Carson, is the Speaker of the House of Assembly, and Mr. Kent and the other respondents are members of that body, except one, who is the messenger of the House.
  Upon the part of the respondents, it is stated that Mr. Kent, having in his place in the house made some animadversions upon the management of the hospital, Mr. Kielly, upon subsequently meeting him in the street, addressed him in gross and threatening language, and added, that Mr. Kent's privilege should not protect him. Mr. Kent immediately announced this proceeding to the house, which thereupon resolved itself into a committee of privileges, and entered upon the consideration of the complaint of Mr. Kent, and after examining the witnesses thereon, were of opinion that the conduct of Mr. Kielley was a gross breach of the privileges of the house, and that, if allowed to pass unnoticed, it would have the effect of deterring members from acting in the independent manner which was necessary for a free assembly. This report having been passed, was adopted by the whole house, which resolved, that the Speaker should immediately issue his warrant to the Sergeant-at-Arm to bring Mr. Kielley to the Bar, to be dealt with according to the pleasure of the house.
  Mr. Kielley having been arrested under the warrant, and brought to the bar of the house, the Speaker read to him the resolution which had been adopted upon the subject, and called upon him to give an explanation of his conduct. The appellant, in answer to this call, entered upon an explanation, in the course of which he used certain other violent and threatening words to Mr. Kent, who was then in his place in the house, and whom he designated as "a liar" and a "coward." Whereupon the House ordered Mr. Kielley to withdraw in the custody of the Sergeant, who was directed to bring him up again upon the day next but one, upon which occasion the House resolved that he should be discharged if he paid the fees of his arrest, and expressed his regret for having been guilty of any act or expression that had been considered by the House as a breach of its privileges. The appellant having refused to make this apology, was re-committed to the custody of the Sergeant.  The House then proceeded to resolve, that for his original offence, and for the gross iteration and aggravation of it when called upon for an explanation, he should be transferred to the custody of the sheriff of Newfoundland and the gaoler of the district, and that he should be detained in the common gaol until he complied with the conditions dictated by the House.
  In obedience to this resolution, the Speaker made out his warrant to the sheriff, and recorded as the cause of commitment that Mr. Kielley had been guilty of a breach of the privileges of the House by using threatening language and gestures to Mr. Kent, and for contemptuous language and conduct before the House of Assembly itself. Under this warrant Mr. Kielley was kept in gaol from the 6th to the 16th of August, when he was brought up on habeas corpus before one of the Judges of the Supreme Court and discharged.
  In the following term the appellant brought an action of trespass against the defendant, who pleaded in justification the circumstances which have been mentioned above. The plaintiff demurred to the plea, and judgment upon the demurrer was given in favour of the respondents. The Court, consisting of Chief Justice Bourne, Mr. Justice Des Barres, and Mr. Lilly, who acted at the time under the Governor's appointment as an assistant judge, in the absence of Mr. Justice Brenton. The Chief Justice and Mr. Justice Des Barres agreed in the judgment.  Mr. Lilly, who had heard and decided the application upon the habeas corpus, dissented from the two other judges.
  Mr. Pemberton, with whom was Mr. Henderson, now appeared in support of the appeal. The learned gentleman, after having stated the general facts of the case, proceeded to state the reasons why the judgment of the Court below ought to be reversed; but as he was interrupted by the rising of the Court, it will be the most convenient course to state the substance of his speech after it has been concluded.


Source: The Times, 6 January, 1841

Tuesday, Jan. 5.

  Mr. Pemberton, having stated the general facts of the case, proceeded to say, that the following were the grounds upon which he appeared to support the appeal from the judgment of the court below - namely, that the House of Assembly does not possess by law the power of arresting and imprisoning; as for breaches of privilege. That, supposing such power to exist, it can at any rate only be exercised as against its own members, and not against strangers for alleged contempts committed out of doors. That no breach of privilege was in fact committed, or alleged to have been committed by the appellant before the first warrant was issued; that, on the contrary, it was presumable from the tenour of the warrant itself, that as set forth in the pleas, the appellant's conduct in the street had no relation to the house, and could not amount to a breach of privilege, and that the court below was not, thereby, by law, precluded from examining into the alleged contempt, for the purpose of ascertaining whether it were a contempt or not. That supposing the power of commitment to exist, the manner of exercising it in the present case was illegal, the Assembly having resolved itself into a committee upon a complaint of the party aggrieved, and examined witnesses against the appellant in his absence; and finally arrested and imprisoned him as a criminal, without first summoning him to appear, or calling upon him for his defence, which, as the appellant submitted, was contrary to every principle of justice, and could not be vindicated upon any pretence of privilege. That the proceedings were further illegal upon the ground that the warrant did not purport to be founded upon the offence of which the complaint had been made, and of which the defendant had been declared guilty, but described the supposed offence in a different manner, and because the warrants were not under seal; and did not show that any adjudication or conviction took place; because the appellant was ordered to be imprisoned until he should make such apology as the House should dictate, which was equivalent to an imprisonment  for an unlimited period; and, finally, that several of the pleas were bad, as they purported to justify  the battery complained of, without confessing that it had occurred.
  The learned gentleman then proceeded to draw a distinction between the power which the Crown possessed in settled colonies, and in those which had been conquered.  In respect of settled colonies, it was a principle of the English law that the subjects of this country, in proceeding to such colonies, carried with them as much of the legal rights and constitutional privileges of this realm as were necessary for their benefit, and applicable to their situation, and the power of the Crown could not deprive them in such colonies of any of the rights and privileges which they enjoyed in the mother country. In conquered colonies the case was different, and the Sovereign, having there the exclusive power of legislation, may introduce into those colonies whatever law or institutions he thought fit. The Crown may also establish a corporation in a settled colony as well in anywhere ese, but could not in such colony grant the corporation a power to imprison any individual whatever, except through the intervention of the regular tribunals, and the due course of the law.  Even in Newfoundland the Council, which is legislative, does not profess to have such power, although it was a deliberative body as much as the House of Assembly.  It was attempted to support this monstrous claim by making an analogy between the House of Commons and the Colonial Assembly. But supposing any such analogy to exist, still the House of Commons possessed the power as part of the lex consuetudo Parliamenti, but where could be the lex et consuetudo of an assembly whose institution had commenced only a few years ago? The learned gentleman then proceeded to examine the case of "Beaumont and Barrett," and commenced by designating it as the judgment of Mr. Baron Parke alone.
  Lord Brougham - It is necessary to correct you upon that subject. Every judgment of this Court is submitted, before delivery, to every member of the Court. Every paragraph is submitted to each individual judge, and it frequently happens that one judge objects to one paragraph, and another judge to another; and the whole judgment is ultimately drawn up in such a form as to receive the entire approbation of each member of the Court. If any difference should exist, the board is by its constitution bound to make express mention of it at the period of delivering the judgment. It is therefore quite certain that each judgment is to be taken to have received the assent of each member of the board, unless the contrary appears upon the judgment itself.
  Mr. Pemberton, after having read the judgment, contended that it was not applicable to the present case, as the rights in Jamaica had existed for 160 years, and had been confirmed by act of Parliament. As this case of "Beaumont and Barrett is of great importance in reference to the subject in general, we give a statement of the substance of it from reports of cases before the Privy Council, by Mr. E. F. Moore, page 59. It was an appeal from the judgment of the Supreme Court in that Island, over- ruling the general demurrers of the appellant to the pleas of justification pleaded by the respondents to an action of trespass and false imprisonment brought against them by the appellant. It appeared that the House of Assembly resolved that certain paragraphs in a paper called the Isoono[x]ist were a breach of the privileges of the house.  The appellant (and printer and publisher of the paper) being called to the bar, admitted that he had written the paragraphs in question, and directed their publication. Having been duly admonished, he offered nothing in extenuation of his offence, and he was therefore committed to the common gaol of the county for the breach of the privileges of the house. In these circumstances he brought an action of trespass against Mr. Barrett, the Speaker, who pleaded the circumstances in his justification. The plaintiff, as in the present case, demurred to the pleas, and the Court gave judgment against the demurrer; And this Court, upon appeal, confirmed the judgment of the Court below.
  The following is the most important passage in the judgment of the Court, which was delivered by Mr. Baron Parke. "Jamaica being a conquered island, such laws were in force there as the King, by his supreme authority, may choose to direct. In 1680 his then Majesty directed the establishment of a Legislature in the island, having power, with the consent of the Governor and Council, to make laws which were to be as nearly as possible agreeable to the laws and statutes of England." The learned judge having distinguished this body from a corporation having a power to make by-laws, went on to say, that "it was a quality inherent in every assembly possessing a supreme legislative authority to have the power of punishing contempts, not merely such as produce a direct obstruction to its due course of proceeding, but such also as have a tendency indirectly  inherent in such bodies, independently of any precedent, in order that they may be able to meet in the most complete personal security for the purpose of discharging their important functions.  The right of self-protection implies as a necessary consequence, a right to use the means necessary to render such self-protection effectual. Independently, therefore, of any precedents or recognized practice upon the subject, such a body must a priori be armed with a competent authority to enforce the free and independent use of its own proper functions, whatever those functions may be."
  The judgment of the Court below was therefore affirmed.  The learned gentleman having gone through the case, contended that if it was said that the House of Assembly had the power in question in consequence of any analogy between the Assembly and the House of Commons, it ought also to possess other powers which the House of Commons possessed, but which the Assembly was acknowledged not to enjoy. The learned gentleman, in conclusion, submitted that the judgment of the court below, for the reasons which he had mentioned, ought to be reversed.
  Mr. Henderson followed upon the same side, and entered more at large than Mr. Pemberton had done into the questions of a more practical and technical nature connected with the proceedings.
  Mr. Hill (with whom was Mr. Heming) then addressed the Court on the part of the respondents, and said that his learned friend had correctly stated that the present case was one of the greatest and most extensive importance, as it affected the rights and privileges of Her Majesty's subjects, not only in Newfoundland, but in almost every other colony under the Crown. Mr. Pemberton had called upon their Lordships to vindicate the liberty of the subject, by reversing the judgment complained of, and deciding that the Legislative Assembly possessed no power to afford protection to its own members against insult and outrage. But if inconvenience and injury would result from allowing an irresponsible power of imprisonment for breach of privilege to that body, how much more would general liberty and individual security be damnified by overruling the case of "Beaumont and Barrett," and leaving the members of the Assembly to go to the discharge of their functions under the influence of threats and menaces, which would restrain the freedom of deliberation, and utterly destroy all independence of action. These however were, strictly speaking, not the class of considerations upon which this case would be decided. The present controversy would be decided upon legal grounds, not, of course, excluding considerations of expediency and convenience, but at the same time only using them as materials of a subsidiary nature, and as topics for the purpose of collaterally enforcing the doctrines which had been already and directly laid down by the law. It had been attempted by his learned friend to draw a distinction between settled colonies and conquered ones in reference to the point in question; but he (Mr. Hill) could not perceive any consequences available to the present argument to which such a distinction could lead. It was conceded on the other side that the Crown possessed the power to establish in a settled colony a Legislature possessing every legislative power which was consistent with the dependence of that colony upon the mother country. It was admitted that such a legislature may have the power to make laws affecting the lives of the Queen's subjects, and even impose taxes upon them, which had always been looked upon as one of the surest marks of sovereign authority. Yet it was contended that the Legislature, which had the power to do all things, had not the power to protect itself against outrage by committing for contempt. But even in respect to that, Mr. Henderson has admitted that the House of Assembly, uniting with the Governor and Council, could pass an act of legislature investing itself with this very power. The argument of his learned friend, therefore, was technical throughout, and rested upon the form, and not upon the substance, of the proceeding.  The learned counsel then went on to give a general history of the establishment of representation in the several colonies which had been conquered or settled by the Crown and subjects of Great Britain.  The earliest instance of this nature was that of Virginia, which had been planted in the reign of Queen Elizabeth, and received the grant of a House of Assembly in the reign of James I. In the establishment of houses of assembly in this and other colonies, no difference had ever been made in the powers or constitution of those houses with any reference to the present subject until yesterday. They were all enrolled in the same way, by commission and instructions from the Crown.  In this way had representative governments been established in most of the United States, and also in Barbadoes, Antigua, Montserrat, Nives and St. Kitt's - all having two houses and a governor, and pursuing the course of proceeding in the British Legislature as far as it was capable of being introduced in the colonies, and applicable to their situation. Mr. Henderson, in his endeavour to show that the authority of "Beaumont and Barrett" was not applicable to the present case, had observed that Jamaica was a conquered colony. But no statement was made to the effect that the Legislature or House of Assembly of Jamaica had received from the Crown any greater powers than those which had been conferred upon that of Newfoundland; whilst the Court of Privy Council had decided that the House of Assembly at Jamaica possessed unquestionably the power which was denied to that of Newfoundland.
  M. Pemberton's own argument was that a mere grant of a House of Assembly did not of necessity draw after it the power of committing for contempt.  In what manner, then, did the House of Assembly in Jamaica come to obtain the power? But Mr. Pemberton had not only denied the power in question to the Assembly of Newfoundland, but seemed inclined to intimate that the Assembly was not a legal body at all, and that the Crown did not possess the power to create in that colony a body possessing such powers as it exercised. But the Statute of the 2d and 3d William IV, ch. 17, recognised the power of the Crown to create such a body in the colony, or at any rate the statute actually conferred that power. The nature and attributes of such bodies were now well known to the constitution, and were described in several works upon the subject, as Burke's History of European Settlements in America, and Edwards's History of the West Indies (to which Lord Brougham added Harrison's Collection of Voyages, which his Lordship designated an excellent work); from these works it appeared that the course of proceeding in all those assemblies was in conformity, as much as was possible, with the usage and practice of the House of Commons in England.
  The learned gentleman then adverted to a work called American Archives, which is now in the course of publication in America, under the direction of Congress, and from which it appeared that in the State of New Jersey a person named Murdoch, who in 1775 had sent a challenge to a member of the House of Assembly whilst  the house was sitting, was pronounced by the house to be guilty of a daring contempt of their privileges, and that he was arrested and imprisoned for such contempt until he had apologized for his offence, when he was  discharged upon the payment of his fees. It was in fact decided by the case of "Beaumont and Barrett," that such powers were essentially inherent, independently of any grant or precedent in assembles of such a nature, as being absolutely indispensable not only to their utility, but to their very existence.  Mr. Pemberton observed, that if this right was allowed, it might happen that the liberty of the subject might be violated by four fishermen in the house of Assembly, or by the minions of the Crown in the Council. But the minions of the Crown already possessed the power out of the Council, as the governors and chancellors of the colonies, who were all military officers, possessed the power of committing to prison. With regard to the fact that four men would have the power to commit from the Assembly, Mr. Pemberton had himself allowed that the same power was possessed by the Supreme Court, which consisted of only three members, of which any two could overrule the opinion of the third; so that in this very case it was admitted that two ought to have the power of committing for contempt, but that four ought not.
  It was also said that it ought to be conceded only to lawyers; but, independently of the power possessed by the military, persons already mentioned, it was quite clear that one justice might commit for a contempt committed in his presence, and upon this very day, as the General Quarter Sessions were going on, there were hundreds of laymen all over the kingdom, all possessing, and some perhaps in the very act of exercising, the power in question. With regard to the objection founded upon the fact that corporations had not the power, it was difficult for the present purpose to say that the law had not thought proper to give it to them. It might, however, be observed in addition, that if a man were to be committed by a corporation during their pleasure, he might remain in custody for ever, as his discharge could not be effected, as in the present instance, by the prorogation of the body by whom he had been committed. But the absence of such a power in a corporation did not show that it ought not to be possessed by a legislative assembly. The colonial assemblies did all exercise it in fact. It was admitted in the present argument that one of them exercised it of right, and no difference had been shown to exist between them.
  It was contended that the acknowledgement of the power would be dangerous to public liberty. But he (Mr. Hill) contended that the danger to public liberty would be much greater in suffering the action of the Legislature to be cramped and obstructed by the threats and violence of a faction. Mr. Pemberton had asked whether it could be contended that the Assembly possessed the power of directing a man to be whipped at a cart's tail. In answer to that question, it was sufficient to say that the case might be dealt with whenever it should arise. If the fact of the power being liable to abuse were to be an argument against its admission, there must be an end to all power whatever, and the same argument would destroy the judicial power itself, by reference to the long career of illegal oppression which had been run by Jeffreys and Scroggs, and other judges, whose names were a disgrace to the judicial bench of England.
  The power now contended for was not only acknowledged and exercised in our colonies, but in America, where it had been lately decided in the case of "Anderson v. Dunn," in 6 Wheaton's Reports, that the Congress possessed such power as an indispensable incident in regard to the small district of Columbia, which was not included in the territory of any of the particular states. Since the decision of the case in Wheaton, the question of privilege had been the subject of discussion in England, and some of the best and ablest men in the country had come to opposite conclusions upon the subject. It was well known that the Lord Chief Justice of the Court of Queen's Bench was not zealous or undiscriminating supporter of the privilege in question, and in referring to the opinions of his Lordship, therefore, he (Mr. Hill) could not be said to appeal to a witness that was prejudiced in his favour. That noble and learned person, however, in the case of "The Queen v. Gossett," in Per. and Dav., vol. 3, page 362, had laid it down that every deliberative assembly must of necessity possess within itself the power to vindicate its own privileges, which could only be accomplished by committing for contempt any person by whom those privileges should be violated.
  Mr. Pemberton had stated, that the power of commitment was claimed by the Colonial Assemblies, upon the ground that it was possessed by the House of Commons. But this was not the only ground upon which the privilege was claimed, and even if it had been, the claim would not be quite so unfounded as Mr. Pemberton supposed. In Blackstone's Commentaries, vol. 1, p. 108, it is said, in talking of the government of the colonies, that "Their General Assemblies are their House of Commons:" and it could not be denied, that although they did not resemble that body in all respects, they did in some important ones.  They must, for instance, of necessity have the power to ascertain by evidence the state of the facts upon which they propose to legislate. Indeed, such powers were even more necessary for them than for the House of Commons, as the great antiquity, high rank, long-continued public estimation, and historical reverence, which existed in the case of the House of Commons, were such as to render it very seldom necessary to have recourse to any compulsory measure to enforce obedience to their commands.
 It had been objected, that the power in question cannot have existed, if it exist at all in the House of Assembly, for more than a few years.  But some of the most important privileges of the House of Commons could not be supported if they must be proved to have existed from all time. The important right of acting by the mace, [of sending the mace to take a member into custody,] without suing out a writ of privilege, was no older than the reign of Henry VIII, and that of the deciding upon controverted elections had its commencement in the reign of Elizabeth or Edward VI. Yet the wildest opponent of privilege could not contend that the house was not well seized of such privileges before the Grenville Act. Mr. Pemberton appeared to be under an apprehension that the Crown and the Assembly would always be in a conspiracy against the rights of the people; but he ought not to have forgotten that in the most eventful period of our domestic history it was by the existence and assertion of the privileges of the House of Commons that the rights and liberties of the people were protected from being utterly trodden out and destroyed by the power of the Crown.
  The learned counsel here observed, that as he was about to enter upon a new branch of his argument, and as it was then 4 o'clock, it might perhaps be the most convenient course to adjourn to tomorrow (this day).
  The Court adjourned accordingly.


Source: The Times, 7 January, 1841

Wednesday, Jan. 6.

  The further hearing f this case was resumed this morning. The Lords present were the same as on the preceding day - namely, Lord Brougham, the Vice-Chancellor, Mr. Justice Erskine, and the Judge of the Court of Admiralty.
  Mr. Hill proceeded to conclude his address, but the topics which he adduced upon the present occasion were principally of a technical character, and had relation to some defects which were alleged to exist in the form of the pleas, and to the irregularities which were said upon the part of the appellant to have accompanied the fact of his arrest and imprisonment. This part of the case has nothing at all peculiar or interesting.  Mr. Hill contended that even if the objections derived from the supposed irregularities were well founded, they could not still invalidate the right of the Assembly to commit for contempt, and even to conduct an inquiry into the subject in a manner different from that which is followed in the ordinary tribunals. In support of this position the learned counsel cited the case of Richard II, who, upon a certain occasion, when the Parliament were proceeding in an unusual manner against his judges, sent them a request to try them either by the common and statute law of the country, or by the civil law.  In order to facilitate a compliance with this demand, His Majesty sent two separate sets of lawyers to the House - namely, common lawyers and civilians. But the House rejected the services of both classes of learned persons, and said that they would try the offenders by the law of Parliament, alone of which they themselves were the best, if not the sole, judges.
 Mr. Fleming followed upon the same side.
  Mr. Pemberton's reply occupied the remainder of the day, and
  The Court adjourned at 4 o'clock.


Source: The Times, 12 January 1843

(Present, Lord Campbell, Lord Chief Justice Tindall, Mr. Baron Parke, Mr. Justice Erskine, and the Judge of the Admiralty Court.)
  Their Lordships met this morning for the purpose of giving judgment in this case, which had been twice argued.
  Mr. Baron Parke - The great importance of the principal question in this case induced their Lordships who heard the first argument to request that a second might take place before themselves and other members of the Judicial Committee. The case has again been argued before the Lord Chancellor, Lords Brougham, Denman, Abinger, Cottenham, and Campbell, the Vice-Chancellor of England, the Lord Chief Justice of the Common Pleas, Mr. Justice Erskine, Dr. Lushington, and myself; and I have been instructed by their Lordships to state the reasons for the advice which they will give to Her Majesty to reverse the judgment of the Court below. That judgment was given in favour of the defendant, upon a demurrer to several special pleas to an action of trespass for false imprisonment by which the acts complained of were justified by the defendant Carson as Speaker of the House of Assembly of Newfoundland, by other defendants as members of that house, and by one as messenger in aid of the Sergeant-at-Arms, upon an arrest and commitment for an alleged breach of privilege of the House. Several objections were taken of a formal nature to these pleas, which it is unnecessary to state, as the opinion of their Lordships is not founded upon any of these objections. The main question raised by the pleadings, and applying equally to the case of all the defendants, was whether the House of Assembly had the power to arrest and bring before them, with a view to punishment, a person charged by one of its members with having used insolent language to him out of the doors of the House, in reference to his conduct as a member of the Assembly - in other words, whether the House had the power, such as is possessed by both Houses of Parliament in England, to adjudicate upon a complaint of contempt  or breach of privilege. It is, indeed, stated in the plea of the defendant Carson, and that of the other defendants, members of the House, that something occurred which might amount to a contempt committed in the face of the Assembly, by the use of violent and threatening words to one of the members then present in his place; but each plea also justified the original arrest of the plaintiff below upon a warrant issued by the Speaker, founded on the complaint of a breach of privilege committed out of the House; and if the House of Assembly had not power to issue that warrant, this part of such plea is bad; and as each plea is entire, the whole is bad.  
  The question, therefore, whether the House of Assembly could commit, by way of punishment, for a contempt in the face of it, does not arise in this case. Their Lordships are of opinion that the House of Assembly, did not possess the power of arrest, with a view to adjudication on a complaint of contempt committed out of its doors, and consequently that the judgment of the Court below must be reversed.
  In order to determine this question, and to ascertain what the legal powers of the Assembly were, it is proper to consider, first, under what circumstances was it constituted, and what was the legal origin of its powers. Newfoundland is a settled, not a conquered colony, and to such colony there is no doubt that the settlers from the mother country carried with them such portion of its common and statute law as was applicable to their new situation, and also the rights and immunities of British subjects. Their descendants have on the one hand the same laws and the same rights (unless they have been altered by Parliament); and, on the other hand, the Crown possesses the same prerogative and the same powers of government that it does over its other subjects; nor has it been disputed in the argument before us, and therefore we consider it as conceded, that the Sovereign  had not merely the right of appointing such magistrates,  and establishing such corporations and courts of justice, as he might do by the common law at home,  but also that of creating  local Legislative Assembly, with authority subordinate, indeed, to that of Parliament, but supreme within the limits of the colony for the government of its inhabitants. This latter power was exercised by the crown in favour of the inhabitants of Newfoundland in the year 1832, by a commission under the Great Seal, with accompanying instructions from the Secretary of State for the Colonial Department; and the whole question resolves itself into this - whether this power of adjudication upon, and committing for a contempt, was by virtue of the commission, and the instructions legally given to the new Legislative Assembly of Newfoundland; for under these alone can it have any existence, there being no usage or custom to support the exercise of any power whatever.
  In order to determine this question, we must first consider whether the Crown did in this case invest the local Legislature with such a privilege. If it did, a further question would arise - whether it had power to do so by law. If that power was incident as an essential attribute to a Legislative Assembly of a dependency of the British Crown, the concession on both sides that the Crown had a right to establish such an Assembly, puts an end to the case; but if it is not a legal incident, then it was not conferred on the Colonial Assembly, unless the Crown had authority to give such a power, and actually did give it. Their Lordships gave no opinion upon the important question, whether, in a settled country, such as Newfoundland, the Crown could, by its prerogative, besides creating the Legislative Assembly, expressly bestow upon it an authority not incidental to it, of committing for a contempt - an authority materially interfering with the liberty of the subject, and much liable to abuse.
  They do not enter upon that question, because they are of opinion, upon the construction of the commission and of its accompanying document, that no such authority was meant to be communicated to the Legislative Assembly of Newfoundland; and, if it did not pass as an incident by the creation of such a body, it was not granted at all. This appears to be clear from the consideration of the instruments. By the Commission for the establishing this Legislative Assembly, dated the 28th of July, 1832, His late Majesty William IV, authorized the Governor, with the advice and consent of the Council of the Island, from time to time to summon and call general assemblies of the freeholders and householders within the island, in such manner and form, and according to such powers, instruction, and authorities, as were granted or appointed by the general instructions accompanying the commission, or according to such further powers, instructions, or authorities, as should at any time thereafter be granted or appointed under His Majesty's sign manual and signet, or Order in Council, and that the persons thereupon duly elected should take the oaths, and should be called and deemed the General assembly of the Island of Newfoundland, and the Governor with the advice and consent of the council and Assembly, or the major part of them, respectively, should have full power to make, constitute, and ordain laws, statutes,  and ordinances for the public peace, welfare, and good government of the island and its dependencies, and the people and inhabitants thereof, and such other as should resort thereto; which laws, &c., were to be as near as might be to the laws and statutes of the United Kingdom, and subject to the approbation of His Majesty, and to the negative voice of the Governor. Accompanying this commission was a despatch from Viscount Gooderich (now Earl of Ripon) containing instructions to the Governor for the regulation of his conduct upon which some reliance was placed in the argument at the bar, as affording evidence of the intention of the Crown to confer the power in question upon the House of Assembly. The commission itself, where such an authority would naturally be expected to be found, if the Crown had intended to confer it, is entirely silent on the subject, nor does it grant any of the privileges of the British Parliament; and the terms used by the Earl of Ripon's letter have probably reference to the mode of conducting business, and the forms of procedure, which are to be assimilated to those of the British House of Commons; at all events, terms so vague and general could never have been used with the intention of giving the powers of commitment, and other privileges of so important a nature, if the authority of the Crown was required to bestow them by a special grant.  
  The whole question, then, is reduced to this - whether by laws the power of committing for a contempt not in the presence of the Assembly is incident to every local legislature. The statute laws on this subject being silent, the common law is to govern it, and what is the common law depends upon principle and precedent. Their Lordships see no reason to think that on the principle of the common law any other powers are given than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to exercise. These powers are granted by the very act of its establishment - an act which, on both sides it is admitted, it was competent for the Crown to perform. This is the principle which governs all legal incidents - "Quando lex aliquiid concedit, concedere viditior et idem sine quo res ipsa esse non potest." In conformity to this principle, we feel no doubt that such an assembly has the right of protecting itself from all impediments to the due course of its proceedings. To the full extent of every measure which it may be really necessary to adopt to secure the free exercise of the legislative functions, they are justified in acting by this principle of the common law. But the power of punishing any one for past misconduct as a contempt of its authority, and adjudicating upon the fact of such contempt, and the measure of punishment, as a judicial body responsible to the party accused, whatever the real facts may be, are of a very different character, and by no means essentially necessary for the exercise of its functions by a local legislature, whether representative or not; all these functions may be well performed without this extraordinary power, and with the aid of the ordinary tribunals to investigate and punish contemptuous insults and interruptions.  
  These powers certainly do not exist in corporate or other bodies assembled with authority to make by-laws for the government of particular trades or limited numbers of individuals. The functions of a colonial legislature are of a higher character, and it is engaged in more important objects; but still there is no reason why it should possess the power in question.  It is said, however, that this power belongs to the House of Commons in England; and this, it is contended, affords an authority for holding that it belongs as a legal incident by the common law to an assembly with analogous functions. But the reason why the House of Commons has this power, is not because it is a representative body with legal functions, but by virtue of an ancient usage and prescription, the Lex et Consuetudo Parliamenti, which forms part of the common law of the land, and according to which the High Court of Parliament before its division, and the Houses of Lords and Commons since, are invested with many peculiar privileges - that of punishing for a contempt being one. And besides, this argument from analogy would prove too much, since it would be equally available in favour of the assumption by the Council of the Island of the power of commitment exercised by the House of Lords, as well as in support of the right of impeachment by the Assembly - a claim for which there is not any colour or foundation.
  Nor can this power be said to be incident to the Legislative Assembly by analogy to the English Courts of Record, nor has it any judicial functions whatever; and it is to be remarked, that all those bodies which possess the power of adjudication upon, and punishing in a summary manner, contempt of their authority, have judicial functions, and exercise this as incident to those which they possess, except only the House of Commons, whose authority in this respect rests upon ancient usage.  
  Their Lordships therefore, are of opinion, that the principle of the common law, that things necessary pass as incident, does not give the power contended for by the respondents as an incident to, and intended in, the grant of a subordinate Legislature. It was, however, argued that in other colonies the Legislative Assemblies exercise the power of committing for breach of privilege without objection, and that the usage in this respect was good evidence that such power was an incident attached by the common law, though not on the grounds of necessity; and no doubt this argument would have had weight if there had been many Legislatures situate precisely as this is, and the usage to exercise the power of committal for breach of privilege had been frequent, and the acquiescence in the exercise long and universal, and that usage could have been explained only on the ground that the power was a legal incident. But no such usage has been proved, and the constitution and practice of different colonies, and the prerogative of the Crown with reference to other cases, differ so much, that there is very little analogy between them, and no inference can safely be deduced from the law as understood in one to guide us with respect to another. In some the very exercise of this power, with the sanction of the tribunals, and the acquiescence of the public for a long period of time, may raise a presumption that the power has been duly communicated by law. But in this case we have the simple question to decide without any usage, any acquiescence, or any sanction of the courts of law except in the very case which we are now called upon to affirm or reverse the judgment of the court below.  
  It remains to be considered how the question stands on express authority, and unless there is some satisfactory authority expressly in favour of the power, we must hold that the common law does not confer it. There is no decision of a court of justice nor other authority in favour of the right except that of the case of "Palmer v, Burnett," decided by the Judicial Committee, the members present being Lord Brougham, Mr. Justice Bosanquet, Mr. Justice Erskine, and myself. Their Lordships do not [one] consider that case as [one] by which they  ought to be bound in deciding the present question; the opinion of their Lordships, delivered by myself immediately after the argument was closed, though clearly expressed, that the power was incidental to every Legislative Assembly,  was not the only ground on which the judgment was rested; and therefore was in some degree extra-judicial; but, besides, it was stated to be, and was founded entirely upon, the dictum of Lord Ellenborough in "Burdett v. Abbott,"  which dictum we all think cannot be taken as an authority for the abstract proposition that every legislative  body has the power of committing for contempt.  The observation was made by his Lordship with reference to the peculiar power of Parliament, and ought not, we all think, to be extended any further. We all, therefore, think, that the opinion expressed by myself in the case of "Palmer v. Burdett," ought not to affect our decision in the present case; and there being no other authority on the subject, we decide according to the principles of common law, that the House of Assembly have not the power contended for. They are a local Legislature, with every power reasonably necessary for the proper exercise of their functions and duties; but they have not what they have erroneously supposed themselves to possess, the same extensive privileges which the ancient law of England has annexed to the Houses of Parliament.
  The judgment, therefore, will be reversed, and there must be a writ of inquiry of damages, unless the parties can agree among themselves.  They ought to consider it as a mere question of right to be tried, and therefore not a case for damages.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School