Fenton v Hampton
| Jurisdiction | UK Non-devolved |
| Judgment Date | 04 February 1858 |
| Date | 04 February 1858 |
| Court | Privy Council |
English Reports Citation: 14 E.R. 727
ON APPEAL FROM THE SUPREME COURT OF VAN DIEMAN'S LAND.
Mews' Dig. tit. Colony, I. General Principles, 6. Legislatures; also tit. Parliament, A. Internal Management, 4. Other Matters. S.C. 8 St. Tr. (N.S.), 873. Followed in Doyle v. Falconer, 1866, L.R, 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. Thomas (1896), A.C. 600; 22 Vict. (Tasm.), No. 17; 49 Vict.(Tasm), No. 25; Printed Cases in Privy Council Appeals, Colonial, N.S.W. 1847-1859.
[347] ON APPEAL FROM THE SUPREME COURT OF VAN DIEMAN'S LAND. MICHAEL FENTON and JAMES FRASER,-Appellants, JOHN STEPHEN HAMPTON,-Respondent * [Feb. 3 and 4, 1858]. The " Lex et consuetudo Parliamenti " applies exclusively to the House of Lords 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 Common Law of England into the Colony [11 Moo. P.C. 397]. No distinction in this respect exists between Colonial Legislative Councils, and Assemblies whose power is derived by grant from the Crown, or created under the authority of an Act of the Imperial Parliament [11 Moo. P.C. 397]. Keilley v. Carson (4 Moore's P.C. Cases, 63) reviewed and upheld [11 Moo. P.C. 395, 396]. This was an action of trespass brought in the Supreme Court of Van Dieman's Land by the Respondent, the Comptroller-General of convicts in that Island, against the Appellants, Fenton, the Speaker, and Fraser, the Serjeant-at-Arms, of the Legislative Council of Van Dieman's Land. The declaration complained that the Appellants unlawfully assaulted, seized, and imprisoned the Respondent. The Appellants served in their defences, but respectively pleaded special pleas of justification, setting forth, in substance, the following material facts; that before and during the alleged 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 Appellant, Fenton, was a member and the Speaker of that Council. That the Appellant, Fraser, was the Serjeant-at-Arms attending [348] the Council. That on the 14th of August, 1855, it was resolved by the Council, that a Select Committee of certain of its members should, in accordance with the standing Rules and Orders of the Council, be appointed to inquire into and ascertain the truth of certain alleged abuses 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 that day the Select Committee was duly appointed in pursuance of the resolution. That before the wrongs, in the declaration alleged, it 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 Chairman of the Select Committee. That the Respondent was a material and necessary witness in the inquiries, and that 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. Pemberton Leigh, the Lord Chief Baron of the Exchequer (The Right Hon. Sir Frederick Pollock), and the Right Hon. The Lord Justice Turner. 727 XI MOORE, 349 FENTON V. HAMPTON [1858] Select Committee, at a certain place and time, to be examined as a witness on the subject of the inquiry. That the summons was duly served. That the Respondent wilfully and without reasonable excuse wholly refused and neglected to appear. That, in consequence, the Select Committee was obstructed in the inquiries and the Council prevented obtaining a report thereon. That during the Session, and before the wrongs complained of, the Council were informed of the premises, and thereupon resolved, that the Respondent be desired to attend at the bar of the Council's House, at Hobart Town, on a day and hour named. That in pursuance thereof, the attendance of the Respondent was in due form required accordingly. [349] That the Respondent was duly served with, and had notice of, the summons, but did not nor would obey the summons, and did not nor would appear as required, or at any other time, but wilfully and contemptuously, and without reasonable excuse, wholly neglected and refused to do so, and disregarded the Order. That, thereupon, the Council, before the wrongs complained of, resolved that the Respondent, having failed to appear at the bar of the Council's House, in obedience to the Council's resolution in that behalf, and the Speaker's summons, was guilty of contempt, and that, thereupon, the Speaker issued his warrant for the apprehension of the Respondent, to be held in the custody of the Serjeant-at-Arms during the pleasure of the Council. That, in pursuance of such last-mentioned Resolution and Order, and for the execution thereof, and before the alleged wrongs, the Appellant, Feiiton, so being and as such Speaker, did make and issue his warrant, under his hand and name, directed to the Appellant, Fraser, the Serjeant-at-Arms attending the Council, and in and by which warrant recited that the Legislative Council of the Island of Van Dieman's Laud did, on the llth of September, then instant, resolve that the Respondent was on that day guilty of a contempt of the Legislative Council, and that he be committed to the custody of the Serjeant-at-Arms, to whom the warrant was directed; and Fraser was directed to take into his custody the body of the Respondent, and him safely keep during the pleasure of the Legislative Council. That this warrant was delivered to Fraser, and by him duly executed. That the Respondent remained in his custody, as such Serjeant-at-Arms, under the warrant, until the Council was prorogued by the Go-[350]-vernor of the Island ; whereupon the Respondent was liberated. That such arrest and imprisonment were the alleged wrongs complained of in the declaration, and that at the times, and during all the time in the pleas mentioned, the Legislative Council was sitting at Hobart Town, in the Island of Van Dieman's Land. To these Pleas of justification, the Respondent demurred on the following grounds : that the Legislaitve Council had no power by law to adjudicate upon, as a contempt, any act done not in the presence of the Council, in Council assembled, by any person not being a member or officer of the Council, and to punish for the same by imprisonment; that the Appellant, Feiiton, was not by law justified, under the circumstances set forth in the pleas, in issuing the warrant therein mentioned for the apprehension and detention of the Respondent during the pleasure of the Council, nor was the Appellant, Fraser, by law, justified in apprehending the Respondent under the warrant, and that such warrant was bad upon the face of it, as it did not set forth facts or circumstances, authorizing the apprehension and detention thereby commanded. After argument, the Supreme Court, on the 27th of November, 1855, gave judgment on the demurrers for the Respondent, holding that the pleas of justification were not sufficient in law. The judgment (a) of the Chief Justice (The Hon. Valentine Fleming, Esq.), after stating the pleadings, proceeded as follows:-"Upon these pleadings, two questions arise: First. Whether the Defendants were justified in doing the [351] acts complained of by virtue of the authority relied upon in the pleas, and, therefore, by consequence, whether that authority is sufficient in point of law ; or putting the same proposition in more precise concordance with the fact set forth, whether the Legislative Council of this Colony can commit for contempt a person who has disobeyed their Order to appear at their Bar, such Order having () From the importance of this question, affecting the constitution and powers of Legislative Assemblies in the Colonies generally, it has been deemed expedient to set out, these judgments at length. [See Pointed Cases in Privy Council Appeals, Colonial, N.S.W., 1847-1859.]. 728 FENTON V. HAMPTON [1858] XI MOORE, 352 been issued in consequence of the refusal of such person to attend and give evidence before a Select Committee appointed in accordance with the Standing Rules and Orders of the House. Secondly. Assuming the existence and sufficiency of . h : authority in point of law, whether it has been rightly exercised; in other words, whether the Speaker's warrant, as set forth in the pleadings, is valid, and justifies all that is alleged to have been done by virtue of its authority. Before proceeding to the consideration of these questions, I am desirous to convey how much I feel indebted for the full, careful and able manner in which the case was argued on both sides. We cannot but have derived material assistance from such an elaborate exposition and analysis of the principles and authorities bearing upon the subject. The Defendant's case was presented under a fourfold aspect. First, the relation existing between the Legislative Council and this Court ; secondly, the powers inherent in the Council, as part of the Legislature, and whether such powers are derived from grant or necessity; thirdly, the authorities bearing on the question, in the English, Colonial and other Courts ; and lastly, subordinate points arising from the form of proceeding adopted by the Council in this instance. On the part of the Plaintiff, everything that was Drought forward under these various heads was [352] examined, contested, and denied. The Magna Charta was prominently relied upon, and it was insisted that the sacred right of personal freedom, secured by that great Charter of our liberties, could not be taken away, except by the express enactment of an authority of as high a nature ; that the...
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