contend that such is not the true construction of the Act. Had, then, the panel been perused in this case? I think not. The twelve jurors out of Court had not been called, nor had the challenge of Iremonger begun. A challenge is a formal thing, which must be done in such a manner as to give the prisoner the opportunity to counter-plead or demur. That had not been done. Then, had the panel been perused, gone through or exhausted? I think not. If I wanted authority for this, which I do not, I think Cook's case, (a) and Horne Tooke's case, (b) are authorities for what is clear on principle. It is said the jurors were not called in their proper order. I quite agree that the panel in each Court should be called as is usual in that Court. The course is not the same at the Old Bailey and at the Assizes, and at each place the panel should be called in the customary way there: but where a person has been called and has not answered, if he afterwards does answer before the formal challenges commence, it shows that the panel is not yet exhausted. As to Philpott, the man who had what are called conscientious objections, the facts are such as to raise no point at all. He had stepped into the box, but before he came to the book to be sworn he was set aside. But I do not wish it to be supposed that I doubt that, if a judge sees that injustice is likely to be done, either against the Crown or against the prisoner, he may interfere to prevent it. I think that, if he perceives that the juror is incapable of trying the cause, either from mental or physical infirmity, the judge may and ought to interfere. I, however, give no final opinion on this last point, as it is not raised before us. CHANNELL, B.: As this is a case of life and death, I shall state the principal reasons why I also think that the judgment should be affirmed. I have entertained great doubts as to whether we can properly entertain these questions; as to some of the objections, I have a strong opinion that we cannot. But I found my judgment on the ground that all that was done was substantially right. The main question is as to Iremonger, for I think the course pursued as to him decided what was to be done as to Philpott. It turns on the construction of 4 stat. 33 Edw. 1., passed in 1305, more than five hundred years ago, the provisions of which have been re-enacted in the same words. The object of that enactment was, as I conceive, to prevent the indefinite adjournment of inquests, on the suggestion of (b) 13 St. Tr. 311, 318. (c) 25 St. Tr. 1, 23. the Crown that the jurors were not indifferent. We are to construe this old Act by the aid of the decisions, reading it with the assistance of what has been done since in course of law. It is clear, then, that till the panel is exhausted, and it is seen that a full jury cannot be obtained, the Crown has a right to ask to have a juror to stand by; and, whether this is properly called a challenge or not, the course said on the record to have been adopted at the trial was right. The question is whether, when Iremonger was called a second time, the period had arrived at which the Crown was bound to assign cause. There had been no formal challenge, no decision; all relating to Iremonger was yet, as I may say, in fieri, when the twelve jurors who had been absent came in, having fulfilled their duty. I cannot attach any importance to the mere commencement of the discussion about Iremonger's challenge; had anything been decided, a very different case would have arisen. As it was, the twelve came into Court in such time that both the prisoner and the Crown had a right to require their services. I say nothing as to the proper mode of going over the panel the second time. Here the twelve had not been called at all; till they were, the panel clearly was not exhausted, and Iremonger was properly ordered to stand by till they were called. They were called, and one of them, Philpott, answered to his name. I concur in what has been said by the other judges as to the propriety of a judge having power to remove a man who has so conducted himself as to afford reasonable ground for believing he is unfit to fulfil the functions of a juryman. I concur in this as a matter of opinion; but I give my judgment on the ground that he was, at the prayer of the counsel for the Crown, set aside before the panel was exhausted. COCKBURN, C.J.: My brother Williams, who has left the Court, desires it to be stated that he is of the same opinion. Welsby: Does the Court award execu tion? COCKBURN, C.J.: We only affirm the judgment of the Queen's Bench. The former award of execution remains on the record, of which a transcript has been brought here. If there is no further respite, the law takes its course. Judgment affirmed.(a) MATERIALS MADE USE OF.-The reports in 8 E. & B. 54; Dears. & B. 375; 27 L.J. N.S., M.C. 4. (a) No formal record of the proceedings in the Court of Exchequer Chamber was drawn up. The prisoner was afterwards executed. FENTON AND ANOTHER against HAMPTON. PROCEEDINGS BEFORE THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL ON APPEAL FROM THE SUPREME COURT OF VAN DIEMEN'S LAND, 3RD, 4TH, AND 17TH FEBRUARY 1858.(1) (Reported in 11 Moo. P.C. 347.) Appeal from the Supreme Court of Van Diemen's Land giving judgment for the plaintiff on demurrers to the defendants' pleas in an action of trespass and false imprisonment against the Speaker and Sergeant-at-Arms of the Legislative Council of Van Diemen's Land. Pleas that the Legislative Council of Van Diemen's Land appointed a Select Committee of its members to inquire into certain matters within its competence, with powers to send for persons, &c.; that the plaintiff was a necessary witness, and was duly summoned before the said Committee, but wilfully refused to attend and give evidence, whereby the Committee was obstructed; that the Council subsequently summoned the plaintiff to attend before it, and that he wilfully and contemptuously neglected to do so, whereupon the Council resolved that the plaintiff had been guilty of a contempt, and should be taken into custody; and that the defendants had acted pursuant to such resolution. Demurrers. Held by the Judicial Committee, dismissing the appeal— Colonial Legislature-Commitment for contempt.-9 Geo. 4. c. 83. s. 24. The power of arrest with a view to punish for an alleged contempt committed beyond its own precincts is not incident to a colonial legislative chamber, and it is immaterial whether such legislature is established by statute, as in this case, or by the Crown, as in Kielley v. Carson.(2) The Lex et Consuetudo Parliamenti was not introduced into the colony by 9 Geo. 4. c. 83. s. 9, which provided that all laws and statutes in force in England at the passing of the Act, not being inconsistent therewith, should be applied in the administration of justice in the colony, so far as they could be applied there.(3) The defendants' pleas showing an arrest with a view to punish for an alleged contempt away from the House of Assembly, disclosed no defence to the action. (1) Before the Right Hon. Knight Bruce, L.J., T. Pemberton Leigh (afterwards Lord Kingsdown), Pollock, C.B., and Turner, L.J. (2) See the report of this case in 4 St. Tr. N.S. 669, and the cases and authorities there collected at p. 692 as to the privileges of colonial legislatures. See also, Fielding v. Thomas, 1896, A. C. 600. Shortly after the decision in this case, the legislature of the colony (now known as Tasmania) by the Parliamentary Privilege Act, 22 Vict. No. 17, conferred upon both Houses and their committees power to send for persons and papers, and empowered either House to commit for certain contempts therein enumerated affecting the due exercise of its functions. See also the Amending Act, 49 Vict. No. 25. (3) See below, p. 884. This was an action of trespass brought in the Supreme Court of Van Diemen's Land by the respondent, the ComptrollerGeneral of convicts in that island, against the appellants, Fenton, the Speaker, and Fraser, the serjeant-at-arms, of the Legislative Council of Van Diemen's Land, (a) (a) This Legislative Council, consisting as to one third of members nominated by the Crown, and as to the remaining two thirds of elected members, was constituted pursuant to 13 & 14 Vict. c. 59., and empowered to make laws with the assent of the Governor. Previously there had been a nominated council under 9 Geo. 4. c. 83. The Legislative Council constituted and raised the question whether the Legislative Council of Van Diemen's Land, had power to punish by committal disobedience to an order for attendance before it duly signified by the Speaker's summons. The declaration alleged that the appellants unlawfully assaulted, seized, and imprisoned the respondent. under 13 & 14 Vict. c. 59., afterwards, pursuant to powers conferred in that statute, substituted for itself, by the Colonial Act, 18 Vict. No. 17, a legislature consisting of an elective Legislative Council and an elective Legislative Assembly. The appellants severed 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 Diemen'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-atarms attending the Council. That on the 14th 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 Greyson, 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 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. were That during the session, and before the wrongs complained of, the Council 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. That the respondent was duly served with and had notice of the sum mons, 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. 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 should issue his warrant for the apprehension of the respondent, to be held in the custody of the serjeant-atarms 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 Fenton, 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, which warrant recited that the Legislative Council of the island of Van Diemen's Land did, on the 11th 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 serjeantat-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 Governor 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 Diemen's Land. To these pleas of justification the respondent demurred on the following grounds: That the Legislative 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 Fenton 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 authorising the apprebension and detention thereby com After argument, the Supreme Court, on the 27th November 1855, gave judgment on the demurrers for the respondent, holding that the pleas of justification were not sufficient in law. (a) The defendants appealed to the Queen in Council. BEFORE THE JUDICIAL COMMITTEE OF THE February 3rd and 4th, 1858. Sir Frederic Thesiger, Q.C.,(b) and made perpetual. The authority and power of the Legislative Council being derived from this statute, must be construed by its enactments. The power to institute preliminary inquiries before proceeding to legislate must be incident to every legislative body; such a power is (a) The judgment is reported in 11 Moo. P.C. 350. (b) Afterward Lord Chelmsford, L.C. quite distinct from any parliamentary privilege, and must have been intended to be conferred by the statute 13 & 14 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 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 obey such_summons. Can it be argued that the Legislative Council had no power to summon? For to that extent the argument would go, if the witness has the option of attending or not attending to such summons. The Council cannot proceed either criminally or by civil action against the appellant, and have no redress, if not capable of enforcing their summons by commitment. He, however, refused to attend to the sumrant, and he was arrested. Now, the Chief mons, and then the Speaker issued his warJustice of the Supreme Court treats this case as a case of privilege, and as governed by the case of Kielley v. Carson. (a) That case, however, was a question of assumed parliamentary privilege, not of the exercise of power incident to legislative action. There 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. Barrett, (b) that no such power was incident to that Assembly. That case is, therefore, distinguishable from the present. between a question of privilege and the (a) 4 St. Tr. N.S. 669; 4 Moo. P.C. 63. (b) 1 Moo. P.C. 59. This shows the case to have proceeded entirely on the question of privilege and not of power. In the Court below, Mr. Justice Horne considered that we were asserting a right to Parliamentary privi lege, and that not having proceeded to bring the respondent before the bar of the Legislative Council, we were not within the principles laid down in Howard v. Gosset, (a) the case of the Sheriff of Middlesex, (b) Burdett v. Abbott.(c) But we make no such claim as those cases established; we rely entirely on this being a power possessed by the Legislative Council as incident to their legislative authority, a matter within the functions of the Council which must have power to protect itself from impediments to the due course of inquiry, and such power we claim. It is not necessary to claim that the Council possess the lex et consuetudo Parliamenti. No indictment could be sustained for non-compliance with the summons of the Legislative Council, for to sustain an indictment the refusal must be in a judicial proceeding, Gosset v. Howard, (d) and the act complained of must be a breach of a public duty. ARGUMENT FOR THE RESPONDENT. Sir Fitzroy Kelly, Q.C., Fleming, Q.C., and F. M. White for the respondent. The authority claimed for the Legislative Council of Van Diemen's Land does not belong to that body in their character of a legislative body like the House of Commons; it cannot claim that power by usage, or as possessing any judicial functions. This has been solemnly decided by the Judicial Committee, and there is nothing in this case to take it out of the rule laid down by the Committee in Kielley v. Carson. The power, if it exists, must be either inherent in the Legislative Council as a representative assembly by the common law of the colony, or it must be derived from express enactment in 13 & 14 Vict. c. 59. Section 14 of that statute enacts that the Governors of the several colonies, with the Legislative Councils"shall have the authority to make laws for the peace, welfare, and good government of the said colonies respectively." (a) 6 St. Tr. N.S. 319; 10 Q.B. 359. (b) 3 St. Tr. N.S. 1239; 11 A. & E. 273. (c) 14 East. 137. (d) 6 St. Tr. N.S. 354; 10 Q.B. 452. The authority conferred is in both cases co-extensive, and expressed in totidem verbis. The construction of these words, therefore, must be the same in both cases, and the decision in Kielley v. Carson must be held to be conclusive. But if the authority of that case does not apply, the possession of such authority by the Legislative Council is not well pleaded. The pleas are bad; they show a case of inquiry before a Select Committee, setting out its nature, but without any averment that such inquiry was with a view to legislation. The power of the Legislative Council 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 at all, but for not appearing before the Legisla tive Council after a report from a Select Committee of that body that the respondent had neglected to obey a summons requiring him to appear before them to be examined as a witness, but the pleas assign no cause or reason for his attend ance. The resolution of the Legislative Council is, that the respondent was guilty of a contempt, and the warrant thereupon issued to the serjeant-at-arms states no reason for his commitment, or that his refusal to attend at the bar as required was contemptuous. It may be that the order in the first instance for his attendance at the bar of the House was to explain his disobedience to the summons; he might have shown that he was exempt from giving the evidence required, had he had notice what the evidence required was; but no instruction or notice is given him throughout all the proceedings, 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 is incarcerated. The warrant, therefore, is in itself invalid and void. It is scarcely necessary to inquire into the rules regarding the authority of a court to commit a witness in pœnam, as it is not within the power of a court of justice, Lamont v. Crook. (a) The Legislative Council is not a court of justice, it is no part of a High Court of Parlia (a) 6 M. & W. 615. |