Kielley v Carson and Others
| Jurisdiction | UK Non-devolved |
| Judgment Date | 23 May 1842 |
| Date | 23 May 1842 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 225
ON APPEAL FROM THE SUPREME COURT OF THE ISLAND OF NEWFOUNDLAND.
Mews' Dig. tit. Colony, I. General Principles, 6. Legislatures; also tit. Parliament, A. Internal Management, 2. Powers of. Followed in Fenton v. Hampton, 1858, 11 Moo. P.C. 347; and Doyle v. Falconer, 1866, L.R. 1 P.C. 328, 4 Moo. P.C. (N.S.) 203, on point as to committal by Colonial Legislature: and see Phillips v. Eyre, 1870, L.R. 6 Q.B. 1; Forsyth's Cas. Const. Law, 25; and charge of Blackburn J. in Reg. v. Eyre, 1868, p. 66.
[63] ON APPEAL FROM THE SUPREME COURT OF THE ISLAND OF NEWFOUNDLAND. sfc^. \ EDWARD KIELLEY,-Appellant; WILLIAM CARSON, JOHN KENT, and Others,-Respondents * [Jan. 4, 5, and 6, 1841; May 23, 1842]. The House of Assembly of the Island of Newfoundland does not possess, as a legal incident, the power of arrest, with a view of adjudication on a contempt committed out of the House; but only such powers as are reasonably necessary for the proper exercise of its functions and duties as a local legislature [4 Moo. P.C. 84, 86, 88]. Seinble.-The House of Commons possess this power only by virtue of ancient usage and prescription ; the lex et consuetudo parliamenti [4 Moo. P.C. 89]. Semble.-The Crown, by it prerogative, can create a Legislative Assembly in a settled Colony, subordinate to Parliament, but with supreme power within the limits of the Colony for the government of its inhabitants; but Quere.-Whether it can bestow upon it an authority, viz., that of committing for contempt, not incidental to it by law [4 Moo. P.C. 86]. The principles of Beaumont v. Barrett (1 Moore's P.C. Cases, 59) and Burdett v. Abbott (14 East, 137) examined [4 Moo-. P.C. 91, 92]. This was an appeal from the Supreme Court of Judicature of Newfoundland, upon a judgment on demurrer, pronounced on the 29th of December 1838, in an action brought by the Appellant against the Respondent, for assault, battery, and false imprisonment. The Appellant was the district surgeon and manager of the Hospital in Saint John's town, the capital of Newfoundland. The Respondent, John Kent, was a member of the House of Assembly of Newfoundland, and, in his place in the House, had made some animadversions on the management of the Hospital. On the 6th of August 1838, Kent reported to the [64] House of Assembly that the Appellant had been guilty of a contempt, having reproached him. in gross and threatening language for the observations he had made, adding, " your privilege shall not protect you." The House immediately referred the consideration of Mr. Kent's complaint to a Committee of Privileges, before whom evidence as to the alleged breach of privilege was taken, and the House, upon their report, voted the Appellant guilty of a breach of the privileges of the House of Assembly, which, if passed unnoticed, would be a sufficient cause for deterring a member from acting with that independent conduct necessary for every Assembly, and ordered that the * Present: The Lord Chancellor [Lord Lyndhurst], Lord Brougham, Lord Den- man, Lord Abinger, Lord Cottenham, Lord Campbell, The Vice-Chancellor of Eng land [Sir Lancelot Shadwell], the Lord Chief Justice of the Common Pleas [Sir N. C. Tindal], Mr. Baron Parke, Mr. Justice Erskine, and the Right Hon. Dr. Lushington. P.C. ii. 225 %, IV MOORE, 65 KIELLEY V. CARSON [1841-42] Speaker do issue his warrant to the Serjeant-at-Arms, to bring the Appellant to the Bar of the House, to be dealt with according to the pleasure of the House. The Appellant was accordingly arrested, and on the following day, the 7th of August, brought to the bar of the House,-where the Respondent, William Carson, the Speaker of the House of Assembly, read to him the resolution, which declared his conduct to the Respondent, Kent, to be a breach of privilege, and required him to explain. The Appellant, it appeared, instead of explaining his conduct, made use of violent language towards Mr. Kent, who was then in his place in the House; and the House thereupon directed him to withdraw, in the custody of the Serjeant-at-Arms. The House then resolved, that such conduct was a grievous aggravation and iteration of the contempt offered to the House by the Appellant, and directed that he should continue in the custody of the Serjeant-at-Arms until further order from the House. On the 9th of August the House resolved that the Appellant should again be brought to their Bar, and that he [65] should be required to apologize for the breach of privilege of which he had been guilty. The Appellant was accordingly placed at the bar, but he refused to make an apology. The House thereupon passed a resolution that he should be committed to the gaol of Saint John's, and ordered the Speaker to make out the necessary warrants to the Sheriff and the Gaoler, which was done, and the Appellant was committed thereon. The Appellant was brought up, on the 10th of August, under a writ of habeas corpus, before one of the Judges of the Supreme Court, and discharged [see Printed Cases in Privy Council Appeals, Appx. C.]. In consequence of this commitment and imprisonment, the Appellant, in Michaelmas term 1838, brought an action of trespass and false imprisonment, in the Supreme Court of the Island, against the Respondent Carson, the Speaker, and Walsh the messenger, and Kent and others, members of the House of Assembly. The declaration consisted of four counts. The first count was for breaking and entering the Plaintiff's dwelling-house on the 6th of August, and seizing and imprisoning him, for the space of four days. The third count was for assaulting and imprisoning him generally ò and the second and fourth counts, were for the battery. The Respondent, Carson, pleaded, first, the general issue, and, secondly, a special justification, as Member and Speaker of the House of Assembly, and set forth the circumstances, above-mentioned, and the several resolutions of the House of Assembly, in obedience to which, he averred he had acted. Similar pleas were put in by the other Respondents. To these special pleas by Carson, as well as by the other Respondents, the Appellant demurred. The [66] Respondents having joined to the demurrers, they were argued before the Supreme Court, which held them to be sufficient in law, and directed judgment to be entered up for the Defendants [Printed Cases ubi sup. Appx. G., and Appx. to Respondents' Case, Nos. 4 and 5]. From this judgment, the present Appeal was brought, which now came on for argument (Jan. 4, 5, and 6, 1841*). Mr. Pemberton, Q.C., and Mr. Henderson, for the Appellant.-The question now before your Lordships is of great magnitude, involving the liberty of the subject in the Colonies. Three points are raised by this Appeal: First, whether the House of Assembly of Newfoundland had power to commit for a breach of privilege, as incident to the House as a legislative body; secondly, supposing such power to exist, whether it has been rightly exercised in this instance; and, lastly, whether the pleas contain a complete justification to the action. Now we contend, first, that the House of Assembly does not possess, by any law, the power of arresting and imprisoning for breaches of privilege; and even supposing such power to exist, we submit that it can only be exercised against its own members, and not against strangers for alleged contempts committed out of doors. The first consideration, arises out of the known distinction between conquered and settled colonies. Blankard v. Galdy (2 Salk. 411), Campbell v. Hall (20 State Trials, 239). In the former, the power of the Crown is paramount; in the latter, the Colonists carry with them the laws of their native land, and whatever difference of opinion there may be with [67] re- * Present: Lord Brougham, the Vice-Chancellor [Sir Lancelot Shadwell], Mr. Justice Erskine, and the Right Hon. Dr. Lushington. 226 KIELLEY V. CARSON [1841-42] IV MOORE, 68 spect to the introduction of some of those laws, the right of exemption from personal violence, by any authority, but that of the law, is clear and undoubted. " No man shall be imprisoned but by the lawful judgment of his peers, or by the law of the lands " (Magna Chart a, and see 28 Ed. III. c. 3), is the great charter of liberty, applicable alike to Colonists as to Englishmen. It is necessary in the first instance to ascertain the powers of the House of Assembly. Newfoundland, is one of the earliest of our Colonies, it is a dependency of the Crown of England, by right of occupancy. Possession was taken in the year 1583, when the laws of England were introduced, and amongst them, freedom from personal violence, and continued in force, without alteration, down to the year 1832. In that year, the present Legislative Assembly was constituted by Letters Patent from the Crown, to the Governor, authorising him to convoke a Legislative Assembly for the Island, to consist of fifteen members. The qualification and method of the election of its members were regulated by a Proclamation of the Crown, of the 26th of July 1832 [see Printed Cases ubi sup. Appx. to Respondents' Case, No. 2]. Previous to this period the sole power of making laws for the Government of Newfoundland, was in the Legislature of this country. Any law, custom or usage for the justification of the act now complained of, has existed therefore, only, since the year 1832. It is attempted to support this privilege of committing for contempt, by analogy between the House of Commons and this Colonial Assembly. No such analogy exists. The House of Commons possess the power of commitment as part of the lex et consuetudo parliamenti. In Coke's 4th Institute, 15, it is laid down that matters of Parliament, are not to be decided by the Common [68] Laws, but secundiim legem et consuetudinem parliamenti. The same doctrine is stated in 3 Hawkins P.C., book 2, c. 15, s. 73, and by Blackstone, 1 Com....
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