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Lorsque le document est trop grand pour dtre reproduit en un seul clich6, 11 est film6 i partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images nAcessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 t ■: a ^^ s^ ^%^ '^ I t,: '• ' *j .J- i u i' - tl y p REPO RT OF lite PROCEEDINGS B1&FOB9 THE COURT OF KING'S BENCH FOR THE DISTRICT OF QUEBEC, In the Term of Februari/, 1832, RESPECTING THE COMMITMENT OF DANIEL TRAOEY AND ZUD&ER DUVERNATf BY THE LEGISLATIVE COUNCIL OF LOWER-CANADA^ FOR A BKEACH Of PRIVILEGE, i QUEBEC * Printed by T. Gary & Co. 183?. . lVndantb a lone. The »gn'"^ ♦♦.the privile«e» of thi» House. .. ILdia pri^jrto Nju^gaU /»>-./,*^tf„r.t Ten.lem.n pwty ♦.-and «n«« /.« pay «»« ;;,' t^truepth,::.^ H.„»e. I'erry. to th^r»r.Vi:! tnli^tJ: iTnd until he- p», ■.e entitled to their dui^charge, under the writs of habeas corpuB^ as l)ein^ under duress of imprisonment without lei^al authority : and the question as to the jurisdiction of ' the Legislative Council in this matter would come directly" before the Court, who would be called upon to determine upon the same. The objection here goes to the very root of the tree, and the conviction bein^ held void, the com- mitment founded upon that pretended conviction fell to the frround as of course. It had been sometimes argued that there being a conviction and a commitment under it, the Court .was bound at all events to remand, but this was a manifest error, the rule applied only to commit- ments by competent authority. In this last case it was ad- mitted generally but not uiiiversallv, that the Court could ntit upon the return to a writ of habeath corpus, assiirnihg as the cause of detention a conviction, inquire into the ' grounds or reasons of that conviction. These, it was sufficiently obvious. could only be gone into either upon an ' appeal, or upon a writ of c^rHorari, or upon a writ of error, according as the law gave one or more q\' these remedies to the party^ alleging that he had been agirriewed by the conviction. The reason of this was, that the judgment being a judgment of a Court, upon which the law had .conferred jurisdiction over the subject matter^that judg-' metit, generally speaking, could not be disturbed by any incidental course of proceeding; but must remain in full; ....«:) ^1* jrXf« t ^ 1% «« at r% W.««^k» «■ tf«. n tf n ■> kX-^%tf cai^d, or set asid m ^A«1 _ «r a 3 ^ i tor' this widin the- • • ' .. » . 11 !-..« Bat these reait^rt^^flslUtftte •form. pTMcrlbed by "''' *f *: ,, ""u. t apretended con vie direcH, again.! the "V"""?''"'' h„.|,; ^Wu-h h«. not b«en Mon l>y Pe"""'tr'T"fl.e l«w . "T,e ent^emed final • r.i ritv Tl.ciei» II" h.-lf-vi«y li<."-e the power r,7r^r;l" i "Jit'i^er eUr..i,.d ,.i... .'he .».;c.io„ «t tl.e e,erc«pda(tain.ttlel«« »>»J^ violate,. It wa* Q Vc.mntena..«d by the 'aw wmcn » ,^j contradirtion in Verm, to Mippo»e *hn »« It, aid in M.pport ot »" "''r /^^^.^ ,7'^-? ,„..t a remedy, been .aid tl.al there cm.UI be no .jury ^^^^J th. quiescence ot '^"'''7'-'*""'.V!ct. Without affordinit him ...hject •» "'ff«\ [:"'"' We contra y to the above role, ahy remedy, wl'iciwoulilKe'oniry present 4S.\?thr 'rSJwetrit' of H«r, r«^^p»» . wh.^h bad was by the prerojruiive . ^j . dpetrine the opi- here been brought. In suppo" ui t nfon of Chief J uatice Wilmot was here c.ted.* It wa. not T^e nature of thi. writ mn.t fir.t be '""'"'"'f ' J^ i. a demand by the Kin*'. S'.preme C""* »'2';''i 'v tW prodnce a per.ion under confinement, ""^ *" " K"'!?^,*^^ feason of hi. confinement -In ""PV*""?'*"' i „f .hoiL. ;P1 oVence., the fonrt c.n act upon J. «n.^ ThT the'".:" t' wbTchXpar V is cnmm^rer."!.' no c?ime ; or that i, ["Vc ime ^r* he'u committed /- ^ ^-V « ^.?:" j^t 1 «be° iuruduti^, t„e Court di».^-^^-_. .f.-'.,. , f 1:^ J.l'e'i ihemcrme or not, or wneiner ine p.u ij " ^ •if the art with which the party is. charged, and tftf jar... tl^nKhlrZtokencogniLnJofit, are to be con..dere4 k in the return. . _. ,_„ _ •».» *»•!# Af I JLord Chief Justice jviimoii ^i;^^^: ' W^^hfa \ Babeas Co^W for the House ot t2ot^%, p. »V7, w »is Judgmentt, Inteidtd to be denied howorer, that ifthe LeginlntiTt Council had juriidiction over tbe ofTenoe of libel, and if |h«y had proceeded in due judicial order though stimnia- rilv to hear, try and deleruiine this matter the grounds of their conviction were not examinable here. Upon a point BO clear as the present one, it might not perhaps be thought necefi^ary to otTerany uiithority, but that miscon- ceptions hod obtained, that it Mian material he should rectify, and that this was one or the disadvantages which hff felt hiinseifsuhject to, being obliged to argue the case, without Counsel appearing on the other side, who might have relieved him from going into this part of thesubject, by at once admitting the principle of law as stated above. This contiideration in truth gave the vast importance which belonged to the main and general question ; for, if it he held that the LegiHlative Council has jurisdiction over libel at all, then their power in relation thereto would be a power without any controul whatever. In referring to the opinions and arguments of that eminent lawyer, the late Mr, Hargrave, he referred to the opinions of a man who would be at little biast^ed by any utopiuii notions of perfection as by any radical prejudices. Consulted in the case of the commitment of the Hon. Simon Butler and }Ar,. Oliver B**nd, by the Irish House of Lords in 1793, foi^ contempt and breach of privilege, by whot they adjudged to Ue a libel, on that body, he says, *' Considered according «' to the general turn and genius of the law of£ngland, f* the legality of the imprisonment and Que in question i' could not I conceive be supported ; because by the ge- ^* neral rule of our law, an accused person can neither be <* put on trial for a crime without the presentment of ai *^ iu*'y« nor in case of a denial of a crime be tried for U f« without a jury of his peerit, nor in a criminal trial be •» himself interrogated ; and in every one of these points ♦* the present case seems a deviation." And he goes on to point some exceptions to this general rule as in the caaea ofinformation, ex officio f^or misdemeanors, contempts against the Courts of Westminster Hall, summary cri- minal jurisdiction given to Justices of the Peace by statute, criminal jurisdiction exercised in certain cases in tbe l^lixlsaiastical Courts. &c. And again being cousulted in 1798. in thecaseof Mr. Perry, whose commitment haft aU T«ady be«» referred to, he saya, '* proceedings ineitper |> boMif of parliament for contempt and breacb of privi, •» lege, more' especially where, afi fii the preeent case, tnt (t u I i( 4« «( !' ** 1 I*' J (I libel, and if i^h summa- tbe grounds re. Upon a : perliapsbe bat miacon- il he Hhould ages which ie the case, yfho might the subject, :ated above, importancd Bstion ; for. Jurisdiction ereto would In referring lawyer, the s of a man notions of Lilted in the \ Butler and in 1793. fW »y adjudged d according »f £nglandf in question by the ge« I neither bo iiment of^ tried for it lal trial be hese points tie goes on } as in the >, contempts nmary cri- 9 by statute, ases in the ousulted in ent has aU gs ineitB€^ ub of privl» nt case, tti^ u %4*--t ^t jF »'^ .« ** chsrge is for a libel, are in the^r nature very cmitra4 |» ** riont to the ordinary rules an<^ course df admihi»terip||j ,. ** jniticein England: The offended parties act asjudgei»« ^ «• She court is not an epen one. The witnesse* agalnit , ** ihe accused party are originally examined in hi • ah- *' sence. The aocosied party Is called upon to defend him- ** self, without the opportunity of cross examining the •( witnesses against him. He is not in general allowed to ' ** have the benefit of counsel. He Ik in some degree in- ** terr^gated against himself. \He loses the! benefit of trial ' *' by jury ; and if the imputation is for a contempt against . ** the house of lords, and theaccused is a commoner, he ** Is tried, not by persons of his own order, bnt by thos,e of i<' a distinct and a higlier one. The judgement is said to, *' be, not only unappealable, but wholly nnexaminabte, ^''' «* lexcept by those who pronounce it* All thii Ttiriety of hardship, upon the party accused, I undersfand to be at least incident to the ordinary proceeding for contempt * against either house of parliament. But if the Contempt ' be publishing a libel, which is the case now before me, ** there is a still f^irtber hardship : for in the first instance '* 'and before hearing of the accused party, it is sometimes '* adjudged, as it appears to hav6 been in the present * (•( case, tbat the offence has been committed ; and so it is '* -only left to the accused to controvert his having eom- *' mitted it. This seems a very severe deviation frotn the *' comnion course of criminal Justice. Serely it is essen- ' ** tial to the defence of the party accused, tbat he should *Vhave tbe opportunity of shewing, not only that the fact *Vcharged wasnotdonaby him,.but thatsucb fact is not ^' " an offence ; and denying the latter to him appears like-* i*i 'adjudging one half of the ease without a bearing**' In ^ tbe former of these cases be says further, ** tbattli^ ugb in ' a crimidal case the accused party may have been exa« - mined on oath, may have been tried on information^^ only^ or may have been adjudged without a trial by his * peers, it is not of necessary cotisequence, that the pro* ceeding should be illegal. To decide that point It should be previously considered, whether tbe case falls not within some special rule or course of proceeding* The onus indeed • of taking the cafte Out of the general rule follsupon those, whn clatm^ benefit of the exeAaption. 1''. I^t if they. succee* *. '?iji.ii,< ii.' ul to \ 11 }\e excep- by legttn i' present in to be« (excepted secution.- onvict aDd i for a con- ly be maiD- an excep- , where the Legislative V be main- icient legal s a general ' retthoidy w6 vra English f the ppw- : to a veiy >f the Jula wers which • the break- • I long exer- irerb of the I this bead 7, and after East Ifidia , and in the eas, nod of ersy ended. It did not h in detail he learned otild do 80. ?,t is to be ^ JurisdiC' gravels In- ridical Ar- e Courts in • Benjsimin dge IntelH- -thai of Sir ► ■»_«;*»- 'Oia_- ui t© * - ■ *C^f .--ikl* ■J5#- i •ecmncceittiry to enter iato the d*t&nof ittf of tbeie^ «*«». They were referred to, generally, as erinciog essential dif- crences between the constUntion of the two branches of the British Parllaincut, and the twa branches of the Pro?H)cial Legislature J— ^here pretensions So lofty as these weraiQade by both branches of the British Legislature, to judicative power, and where as to one of them they were to so large jin extent maintained, that the practice of attaching for contempt, by Libel c^me to bead)pted by both Hottses^.and now stands supported by a long usage, recognized by the Courts of the Kingdom^ It rested then. In England, upon the same basis as the powers and the privileges of those bodies, to wit, im- memorial usage, add accordingly it is open this footing tluit Hargave puts it, Thn*he says *• in respect also to both •* houses, their respective Journals contain evidence of *« a continual exercise of judicative power, in cases of ** privilege^ for more than the last two centuries,"— and in no other part of these opinions does he offer any other ground for the exercise of this anomalous privilege. — We come now to the powers exercisable by either branch of the Provincial Legislature in relation to matters of con- tempt generally* The two branches of the Provincial Le- gi«lalure are established by the 31 Geo. III. c. 31, com- monly called the Constitutional Act. They have no powers except those which they derive from that act, either direct- ly or incidentally. Th^ have never claimed or possessed any jndicative power, other than that relating to matters of contempt, and it is as to the limits of this power that we are now called upon to inquire. The words of the act are as follows : ^* That the Legislative Council and Assembly by and with the advice and consent of His Majesty shall have powf'r to make laws for the peace, welfare and good govern- ment of the Province." It will not be said that the power claimed is given to them directly , they have not, as claimed by the Parliament of Great Britain any inJurent powers.- — They have no immemorial usage to sanction such a pretension. Whatever powera they possess in relation to matters of con- tempt can only be had by them as incidental to the powers given to them by the statute^ founded on the well known rute of law, cut jmisdieH^* daM est^ ea qtaopie etmcesmesse pid^ntur, sine quibus jurisdiclio expUcuri mm potuit^ No doubt could be entertained that as incidental to the powers ni.xiAn ^A <1«<%«A IwwIS A£' fv» A1»^ a*Af'a«^A . #'t%jk>«» '■ 1«A«1 t!*fi> M^f^— '»-»4- i\.^ committing for any actual obstruction of their proceedings, but this did not extend to thecas* of libel. Mr. Hargravc B2 4^ i. t i 7 i: ;! 1 ft' 'U' i i in f ill 12 • » s^jini to have had this distinction present to his mind in the foOpwIng iwsages : ** But though I take a judicative power IB eases of privilege tobe thus fully esfcablislied by long we in hoth houses of parliament in England ; yetas to the extent i ^ ^"^ power, and as to the manner of exerting it, there ' are difficuUies, which i^giit perplex ihe most conversant in parliamentary law and precedents. So far as this juris- diction applies to direct and positive infringements of the • privilege of parliament, such as hindering or interrupting ' the two houses or their members or assistants in their func- tions, whether by arrests, assaults or otherwise, I cannot * see the least room for doubting. So far also as this judica- *' tive power is applied to the writing,speaking or publishing ^ of gross reflections upon the whole parliament, or upon * either house, such an extension, thoug^k pevhaps <>iiginallif^ * questionable, scenes now of toa long a standing and of too u "™"f T ^f®^V®"^y *" t^® practice, to be well controverted ; 'and I am struck m the same way in respect to other in- '^staees of extraordinary latitude, to which both houses- * have sometimes strctfhed^. their doctrine of contempte/' And again— .^ - '*Upon this review ofthecflj^rse of proceedings for contempts^ against the lords or commoins, it might perhaps be expect- ed, that soammalousamode ^admiwisfmii^ criminal justice should not be iextendcd beyond the demands p/ the urgency ' whence Uor^inaie». But the practice, which hath fre-^ " quently prevailed in both houses, is not quite consonant to such an expectation. In point of fact, the proceeding " has not always been confined to eases oi actual interrup- " tion of the two houses and their members in the exercise ** of their functions. On the contrary, both houses have '^^ occasionally taken cognizance of. libels upon the whole " body, and of libels upon individual members, aad some- " times even of libels upon the king's family and servants ; **and under that latitude of construction have tried and *- punished offences, over which there could be no doubt of " the competency ot the ordinary courts of justice to exer- " cise a jurisdictictn. Nor, as to tliemselves, have the two *'hofise8 always confined the proceeding tor contempt to •^libellous publications reflecting upon their exercise 6t' *^ their legislative ps judicial powers, or upon the conduct of *uuiy cvuiplaiued of, particularly where the lord;?, not it (C it I I mind in the sative pow^r byUmgugem [> the extent ing it, there eonversant cks this jn lis- nents of the nterrupting 1 their fiinc- SB, I cannot thisjudica- r publishing nt, or upom ps wiginaUify g and of too ntroverted ;. to other in- [>oth houses - K>ntempts, ft F contempts^ i be expect - ninal justice '« the urgency i hath fre- i consonant proceeding ual interrup- the exercise houses have I the whole , andsome- d servants ; e tried and no doubt of ce to exer- ive the two 3ontenipt to exercise 0t' ; conduct of ues, indeed, have been. 3 iorddi, not 13 *' eontenf witft cottnnifting for the pffenoe^ in which casit **tlift imprisonment of bourse flertninates vilth the session of •* pariiament, have gone the length of finingandof impri- *< zoning fdr a term certain." ^ The privilege in England having been established in troubled time* the Courts of Justice seem to have been afraid to risk the consequences which might have followed frdm a collision between the High Courts ot Judicatiire and the Legislature, and as tbey treated^ denial of their privi- leges as itself a breach of privilege, the situation of private Advocates, even when called upon to give professional ad - vice or assistance might, where considerable public excite- ment existed, be somewhat delicate. Some traces of this would probably be found in the following passage from Hargrave : " What is the boundary of the jurisdiction to »« lords or commons as to privilege and contempt, and how *^ thatiurisdiction where it really exists is exercisable, very " much depends on the latO ami custom of parliament, Qf that *• law and that custom, the judges have sometimes declined •* to be the interpreters, even when called upon by the lords, " with whom they are assessors. I feel,therefore,that it might 1" be deemed unbecoming and in other respects might be ** hazardous in me, professionally to avow more than doubts «* upon the law and custom of parliament, against that, which ** both lords and commons so often heretofore and the lords &o* ** recently, have decided by their own conduct,** True Lord EUerybbrough in the case of Sir Francis Burdett, considered the power of attaching for contempt by libel as inherent in the two branches of British Le- gislature, and he seemed also to have considered such a^ power as essential to their protection. The ease of Sir Francis Burdett he believed, was the only case where- I rn this doctrine was countenanced. With ail possible de- y ference to the authority of that case, it did appear that that position might perhaps be questionable and he (Mr. S } thought it \\as so, even in fihgland, but that these was no r€»won whatever to extend such a principle to a Coloniar Legislature. 1m ^a state of society such as that of Great Britain, it was- iief pessary that every branch of the- public authority should be armed with higher powers fthan was required in countries circumsttanced an the»e^ new countries were. So too, having founded the privile^ I upon iniinemorial usage, the i]^uestion as (o it» e^cact nan ~ tore, OFigiii ttilu gruyuiiusiu^oreiiCQwy, came tu be raui«'K> a subject of speculative inquiry than of praetieal ntility.. 14 ^ i(iN>T|e qilnlon ^IWjfe mmi%e tak^n pro M^c^ <"^'Iu<%i(el 9^^ anid it must not be loit sight of^Uiat Sir Fratijci* BurdetCo^ek'^ Was a member «if the House jpf Cpoimons when the o^^odv"^ ^I^s^^, CvrnplaiDed of was committed^ and as weli the Houe£j^^||^ ^yf t^ommons as the House of Lords possess a power o (o^ni^] 4[Mp1ine m fwo dome«^tcp. , How, far that power ^ai^|j£^] tipii90d oponihe .occasion of Sir Francis .Bnrdett, we an t]|eir« .fiot cabled upon to Invesfig^ie, We were then at ful faHbai iibertf here to ezamii^e the j^rpiinds upon which auch a ^^ ^\\^ po'Wtr «ou14 he maihtainedL as incidental to th^ powen ^nh ii oireotlj glyen by th? statute., In entering into this in^ ^ij^p^ Inquiry it Was proper that he siioptd malce tliis preliminary forthi observation—- Jh at ia 4s mqch' asthe grounds and reasons ;idpo|i which tti€» LegiBtative Council jproceeded in de* 'ciaring the gentlemen in question gmlty of publishing tlb^is are not ^^amlnable before this dburt^ he should be IfaTellingout of the record, if he were tn enter into the qutilstion of libel or no libel. He mentioned this lest bis silence on thM head might be misunderstood as imbWing any aclmisston ,on his part of culpability in the gpentiemen before .the Court. That question did not here arise. What his parties complained of, was tbut that qus- tion had not been brought before the proper tribunal *Va jury of the country/' the benefit of which ferm of triall ^nj"^ they have not enjoyed. Libel against private indiTiduaiel'piiQ | and libel against publi« bodies stand upon totally different! ^2i,.p|' grounds; — the first cannot be too severely repressed ;— osl ^^^y , , to the lasttcare must he talcen not to allow to be impairedi Dq^^, the public discussion of the, public conduct pf public|4t^|| bodies. This is essentialfor the protection ef tbejit i,^^ public liberty— majorities pf ail. pul^lic bodies will| « q^ occauon^ily, under certain ^nflueii::es. pf ine moment,! i« tb, do acts of injustice which no one individual of that't* j^^, iniiHority would himself do. Thp individual responsibility! is rest in the crowd. The individual member^ of the body calumniated, if one will, by the agenpy pf the press, suffer not the pain, inconvenience and injwry which a pri- ■"vate individual would, uncier similar circumstances suffer, ^fhe legal entity of the whole body is imp8ssible„whelher it assails or is assailed^ —as no one whp suffers from l|t jc;pn| <^^^~ tauchit, so ought it. not to harp the power of p^inishingf trine those Vvho nnimndvert uoon iin nroceedinofS: ov consti*! ^^irt toting themselves a Court of jtistice, to judge the exa-l "^^^ mlriiWrs of their pnbllp conduct, if yop talfe away thej ||j^ poiK^r of this lull examination, you destroy the action ot'l ated liable toaj« tribl. pre^d. might safely gosesi eing be^cU such' <( u (I i( th go nc te 15 *^^4. ^ bublic opinion, which cannot be hronght to bw loo fmtfefifu OM^ftr^ely Spdiithe rirOceeding:* of pribllc bodres ; aWd thi* •anpis Burdetlpo^er of ftiW eiatn?na«On Iff taken: away, Sf the |ittWic when the of|^^w^l,^e dondiidt lata be examined have the poWteP ?eUlheHousttjj^5j^g|^^^tbtf«%igh Ihef limits of that examinatti^n and is a power oCq ^ll^lg)^> those whcfm they delate to trewpew beyond t power ^a|t)|£ie litnltB. 'So too, whet-e the aspersions ar^'ttofouiided, wdett, we ar^helr effects must be ^hdH^lived, and mu8ttherti8el^teii<>»ore ^ then at ftttl^^^iygckOhtheci^luinniaior. Again,thebodycahimhlatea'^ which •uch a^p^ii^^ed ^ b^ sOv cidtinot exercise the judicial power' [0 the powen ^nh Imi^ai'tiality i&^d conipJetent discretion. In those caeee gp into this in is preliminary is and reasons Beded in de* of publishing he should be enter Into the tationed this inderstood as lability in the I did not liere ^wherein the publi6 Opinioti is not a sufficient protectron for the body accused, Or Where^ from the peculiar agrgira^ ▼ated char^ctet of the offence, the offender may be thought liable tocOndlgkt jiuriishment; his case may safely be Vtft to a jury dP his eouritry, ht the ordinary forms of jtidlcial trltol. NO public body was ever injured by the pnblio pre^d. That power, so far as public bodies are concerned,' miffht be comoai^d to steam, ohich, with a pi^etr uW of safely- valves ^might be made subservient to the best pur- Eoses, and only produces explosion and death by eihg tindtily comi^ressedi Now all the powera which can » uiM ui/% u«««; being tinouiycompressea; x^ow un "i*? |*ww«7i« »*miwi t,bbtthatqu6-|)j^|.|gim^()a» ifiteldental to the main power given r tribunal ** a^g^,^5h oiily as are of necessityj without which the , are roaiti' tally ditterentj^^rrl^g aloi^^thH the antidote of any poison wwtin u pressed ;— asj may distilv (Mri J ostfce Kerr here read a passage from o be impairedi Dq^(0|. :j(y}|in8on'i^ Life x? Milton, Wherein he sayi, ** The "** -P «..ki:«l.. danger of such unbounded liberty, and the dhnger of bounding it, have |4rodticed a problem in the science of Government, which li«iman understanding seems hi- therto unable ta soWe If nothing may be published but what civil nuthorit/ ^hall have previously approved, power must al^ay« be the standard of truth 5 If every dreamer ef lonovationg may propnga*^ his projects, there can be no settlement ; it every murmurer at government may diffuse discontent, there can be no peace ; and if every sceptic in theology may teach his foUiai there can be no religion.*' Mr. ict of; public ctioa of the bodies will ibe moment,|tc idual of that ^ ft responsibility mbers of the oC the press, f V^hichapri' stances suner. ibie„whether iii)ie„wneineF| t< leach his foUiai there can be no rengion." Mr. rsfrom^ Pf^Rj Stuart observed that he was not surprised at that doc- •of punishiDgj oTB. hv consti'l jge the exa* life away the the action of trine coming from Doctor Johnson. That Milton ^jm- .^s\c ^^t,stA A yf^rv jji'flRttr^ant 4f*n4>. und one whlcK be thought much more con«onant to the truth. It waste be fouad tn the pvOie l7ork« of that distinguished poe%4^ ^e could id' , *iidt pretend to girethe words ofllie orifrinal, 1>ut the opinion whldh he there states in substance was, that if the powers of truth and of falsehood were to go forth on the same arena, no man need fear as to the triumph of the former.) 'The whole burthen then \ies upon him who would support the conviction in question, to shew that a public leg:i6lative body cannot fully exercise its legisla- tive functions, if it be subjected to libellous attacks in print, and that these constitute such an actual obstruction to .their proceedings as to prevent them from discharging their legislative duties* Neither branch of the Pro- vincial Legislature require this species of protectioot*-* It would not be contended that individuals animadverting up- on- the public conduct of public bodies, and doing so truly, ought to be punished : and where the aspersions are false and unfounded they might safely be left to4he good sense of |he community. . Generally the Lef'slativeand -Judicial functions ought to be kept apart. These powers are entirely distinct and separate in their natures there is no point of natural re- lationship between them. If they are made to* run side by side tbey will oot like the two fabled rivers of antiquity pursue their steady course without miziog.-; and, salutary as they are by, themselves, when they do mix, their waters become the wa- ters of bitterness. If in any instance a judicial power except for state oiFettces,on impeachment, could be rightly >conftrred upon a Legislative body, the power in question is the last which should be 'granted.- The essence of the offence for Libel lies in the io« ^tention. The overt acts which are to constitute this of- fence cannot be strictly defined* It has been assimilated and rightly so in this particular to the offence \)f nuisance, the' oi^rt acts constituting which offence are equally undefinable.*' Wherever the question comes to be a question of intention If iS'of the last degree of consequence that the persons called upon to jadge of such intention should be free from all bias of pi^sion,— of feeling even. Where the overt acts constituting the offence are clearly defined by the law, there a^ man of honour and truth may judge igbtly respecting the evidence establishing the offence even though Che accnsed should be his greatest enemy. Not so where the offence is- undefined and nndefinable, resting entirely in intention. His wounded self love and the natural indignation arising sffoma supposed insult are but bad assessors with bim In dbe jadgmeiit neat. AgaiOy suppoidng him to be abto to> 47 ras, that if ;o f«rth on triumph of upon him 9 shew that its lefcisla* attacks in obstruction lischar^ing r the Pfo- otection. — verting up- \g 80 truly, ire false and ease of tlie al fuDCtioDS «!y distiDct oatural re- run side by )uity pursue as they are }iQe the wa« solFences,on Legislative I should be I in the io« ite this of- milatcd and uisance, the ' uodefinable. ' intention It' rsons called n ali bias of constitutiug bere a^.msn )ecting the Che accnsed the offenee n intention. tion arising nrith bim In be abl^ to^ siinnount these influences, will the public be salisfied with the sincerity of his judgment ? It is (eared not, and, where this is the case, one of the capital advantages of the inBtitutions for the administration of justice in criminal matters is lost, the confidence of the public impaired and the tranquility of society jeopardised. Where this has existed the rudest forms of criminal codes, as in the case of the trial by ordeal and by battle, have been sufficient to maintain a tolerable order of things. The passages al- ready given from Hargrave let us sufficiently into his sentiments as to the propriety of such a power being vested in a deliberative body. He(Mr.H.)could not,and ought myt to have got over the ita lex ^cripta es*,proved by the imme- i.iorial possession of them by the House of Commons and House of Lords. If this had been a case of the iirst im- pression there, not so supported, we cdn entertain little doubt what decision would be come to in the present day. Junius in his 44lh number attacks this practice, and although the power of committing for libels cannot be denied to the House of Commons, yet it is a power which is but rarely exercised by that body for many years past, the Commons having adopted the constitutional course of directing the Attorney General to prosecute for all public offences. And is it at this time and under these circura« stances that broken columns of remote and rude antiquity are dug up from the ruins of feudal times, and are trans- • ferred as ornaments to the vestibule of the Legislative Council Chamber? lu conclusion he would recall to the recollection of the Court that ours was a written constitu- tion and had not grown up as that of the British Island, during a long period of time, gradually adapting itself to ' the new emergencies ari&ing from the changes in the social condition of the people and bringing down with much pure gold and with an inextinguishable vitality soofe of the rubbish of a rude age. And the liberty of free discussion of the public conduct of public bodies is in the present state of things irrepressable & carry iny alon^ with some slight inconveniences, incident to every thing that is hnman, a large quantity of positive good, purifiyiug, by "^Enlightening, public opinion. The Court took time tocortsider its Judgni^nt, which was pronounced on Monday, 13ih Feby., the nonorAbie Jw* iicea delivering their opinions ieriaUin^ as follows :*— m 11 18 KERR) Jt With every desire to give our judgment on the malteri which have arisen out of the return lo these wr ts of Habeas Corpus, we have considered it our duty to look into the authorities referred to by the Defendants' Counsel in his long and f ble argument. This and our many judicial avocaJioos during this term have prevented us hitherto from deliveriog our opinion on the constitutional question nvolving the cause of civil liberty, which has been presented to us for our **X"*raU?"question is, whether the Legislative Council being a type and similitude of the House ot Lords, has a right to commit as for breach of P"vilegein cases of libel or in other words whether the principle on which the imperial rar- liament rests its rights, powers and privileges can be admined to apply to the two branches of the Provincial Legislatu^^^^^^ In regard to the two branches of the Imperia Parliament the?e cfn be no doubt that the privileges which they new enjoy, and the functions they exercise, were claimed, enjoyed and eiercised by them previously to the reparation of he two houses, so early as the close of the reign of Henry the tS?d Their rights^ud privileges appear be Belf-created, and absolute, fSunded on precedents and ''"^l^^J™^"^* "f «^,; nor is the exercise of their power to commit for cootempts limited to such as are perpetrated in the ^^ce of he t^o Houses, but it extends to all acts committed, which in ttteir view! ire calculated in any way to impair their dig" nit7ir to restrain the free and independent exercise of their finca.PS. Of this innumerable precedents are to be found from the case of Thrasidas '^?^^^^^^^^^^,Z Z^MJluvof the Commons for a contempt in^^rds against the dignity of ,he house, to that of William Pe^y* B*^"J«*»"°J*X "m- .;neVoXr"ci;rom and usage and *hat the Parliaj^^^^^^ . Charter of the.year 1791^confer^s^no^sudi^^a«th^^^^^^^ upon H Icrrtainlv admit that this body do not possess, like Ho"se"olLrd" aright.tofine or^mprison heyo^^ «inn nor so extensive privileges as the Houses of Loros sion, nor so extensive pn Commons possess. But the ses- I leges a«« the Houses or Loros and ' Common, posse... »u. can **>\^^"f'f:\.i^t ^IZlubl *%'hrCoun.el for the defendants has ciird a pa..a((e ''<>'"*•'« P Jn'dem wHkh 1 feel mj.elf bound .o --opt «n^«hi. occ....m >• Cii.iari.wer by im- t *arliameotai^y I rity upt>D ft. I ess, liite the I ond the ses- | of Lords and i he power of 1 el against the be refused to : smpt and in. I 888 ge from the thisoccabion: niury sine quh 19 ThA f>.iriUtlve Council has no judicial powers conferred «n^ iiif a branch of the Leglsla^iie Government, entrusted -i»h\hAu!horltvto make ** Laws for the peace, welfare, with the autiioniy lo ™? ,|,. Prn«;inrB " And whether a 2Il .he power, reqoUile to en.ure .b« purpow, for wilch u " Uiht'two bodiei (for I speak bo.h of >b* Legi.lalive Coun- "Vim frea to confess that this power o/ cotnmitment for libel may be abused, but of two evils »^ »« ^«^ '^^h'^^uj^*! j^^^^^ vtlejre should be confided lo bodns selected by their sovereign ZnH iL n^onlc for Ereat and impoBtant purposes, than to leave fb^em w^K '& of .el? ^efenc^e whi^^h is com^^^^^^^^ all Courts of justice. Nor could we lim t and defin^ .fh«n! within which^such powers ought to be circumscHbed without matejrialiSiiffecting and restraining the Council lo the tree exeicfseofits functions. ^^«„s4«,. *k« «rS Th« Council for the Defendants appear (o consider the pri, vilLes of both Houses of Parliament of punishing for con- UmSt to be derived from tb« Jula Pe^w which exerciser all thrSuthorUy of a Supreme Court of ) usiice. But the Eccle. iiasticll aorAdmlrilty ->u.ts whrch do not derive their iurisdlctioD from the samt, -^urce, exercise the same right of jj'inbhl^^^^^^^^ all contempts committed against their dignity and authority. Clark's Praxis, Tit 52. . ^ „„. It has beep said that the proceedings taken against Messrs. nilernav and Tracy, as set forth in the return, have been uuvernay ana Arai-y, «^w^^^^ .^^ ^a-i •he ureceH^nt m the KU^fZ p'rrrbas' be°eo";e7e;red^^ aTilTustrative of thi, foMoll I do^BdmU ihat the return is wanting in that expli- cative precision which might be desirable* But conaderiog 26 th«»^ Df/eB4»Qt8 (abci fullty of a bre«ct| af (he privilei^eA oj' ifyii(^iiouB^bl« Uoiiseu V feel qiyaeif houn() by. Ihe faw whipk isj^iil da'MO b^ liOKd Chiof Justice do Giey, ioS Wll9on, 199, a^dbjnce recognizt«d aa hi|^h authority, to pronotmce that <^P"# RT^^eediof^B are unezawjnable here. In giving this opinion on the question hovt far the Le^ isla. ti^jB Council and Assembiy rpay proceed to enquire suauQf. rily , and to cooimil during the Session for coniempt. I cannat but feel tt>at i hav« beep somewhat influenced by the case ot the Ki»g, vs. MquIc, which occurred here in the year 18ltt Hod of the QOiice given in the journals of the Assembly of the y^ar 18IB, of the predicameoi fa which General Carmichaet vti^ placed, when comoiandjng His Majeiiy*s Troops in Ju. niaica. But I beo; it to be understood ihat lum noi prepared to say Ibat no cas^ could occiirfOr be presented to us in any shape of assumed Dciviiege* in which this Court mit>hi not feel itfelf l^uad to rel|ey« the subject from a commitment. lam of opiuiAQ thai the Defendants must be remanded* 5OWEN J. By the return to this Writ it ii certified io U0 that the aipr |)lieant Lndger V^uvemay, stands committed to. the commoo gaof of this district, upon a Warrant of caanmitraeoty oa^atdeby; tt^e Legislative Council of thl^ Pr«>vince. Froin this commitmehi so returoed, ihe party has a'P^Ued |o b« discharged, principally upon the ground tliat oeitl»^r ihe Legislative Conncil or the iV^sembly of this Province have the right toeoavict for libel and to commit theoflTender thereoa as guilty of a breach of the privileges of the bou^e— aod that the offender caii only be proceeded agaiOdt by Ihe ordioary cotrrse in the courts of law. Objectiof)9 have Uke wise beeo mada to tlie ^rm Qf the proceedings returned to this court. Thai it does not appear by the eBmmiiment thai the party was brought in cairtody or had cammuoicaiioo . of the charge. That it does not appear the pariy was caH«4 on to naajLe answer, or-did answer, and That it does not appear the party wa« pireseni wbew con- victed and sentence pronounred,— these laM being S^ttljf ieehnietd wIM be best considered after the maia qu«8t^}« 8ubmii«d to our consideratioB shall have be^o disposed of. It it not denied that in England l^otJh HoUse^ of ParliamcOf hafe frequenily enforced the same rijibts which has p^ew it is said the Houses of Parliament in England der^vt tbetr authority fr<»m long and toHnemorial usage, and claim it a« an liMierent rlgbt derited to tben» frop tli» jvtdftcial attthfuritjf fcrmeriy exercised by both brawhes of the lefjislaiwe, a» I 9L Taw whipk Alison, 199, diuice that le Lei^iila* ire suuuQ^. Icannal the ca^e ot year 181ft nbly of the ^y'araiichaet ops in J.'i- ireparedto any ahape feel iifete Aoded* at the apr* e conimuo (, ipatde by ft'P^U^d fey ieitl»er ihe finee have ler (hereofl —and ihttt I ordioary ir«n pf iho the party le charge. 1 to roalLe yheA con* )aed of, ^arUariietit .^^^n^^ Kit* iifloSf «;^j: SJIS^ BTivn their loi it a« an aiithmrit^ ilai«re, a» mirt ofth^A^ula Rei^ii. And It it: CAVleudM lha( «f< thA le«Watlve CounoM and the Aiaembly of thU Ffav^iiiiui (tMtii ihelf origin to the conttituiional act,3i Giro. MK. c. Si, itiey caanoi legally exerciae such power, having no intiereflt !;lgb4, lOit.— Un'.eM irat that il be eipressly granted tQ tbcoi bx that statute, or secondly ibai it be »* necetsarily inJ|i of Greai Britain. It has heeti well observed- by Sir William Blackstone treating upon this very suhject, ♦* ihnt the l»r»vu . leges of Parliament aire large and iqdetioite : that if all the p^vileges of Parliament were ojice to be set down and ct assault to be ex- I political Bnt should tw ? The cularly in ^*'^ «here- \%,\' i uc.il d ;cuttdd (he a seuled is not con ' my maxim ies for (he i^ourt, and >(h, should nd each of 10 punish* CI ions for red in i(8 ijr, Par- )enaation , mon lawf to himself. tU, i It »f Parlia. It p^rbapl S3 In all (hese cases however of coQcorrffiiijuHsdictioDSt it It certainly an argument (o(he prudenct and digcretion of ei(hor hiiuse (o consider whether (tie penal hand of (he law be not Buffir\ent,and fthether ihtit necettity in which the anomalous pow.rof privilege is founded does not cease to exi«l whero the law ^ at hand wiih its sword and its bhield. From the principles here stated it appears to follow as a direct consequence an incontrovsrlible truthy \bAi the right of the moral person, namely, the Legislative Council to convict and punish in a summary manner, persons guilty of a gross outrage or scandalous libel upon that body, must exist with" out having recourse to the ordinary modes of proceeding in the courts of law, which the Legblative Council could not effect by a civil action, because as a body no such action could be maintained— nor even by indictment in a court of criminal jurisdiction; first because such indictment would depend upon the will of the crown,— and secondly, because the offence would be tried as a breach of the peace, and not as a violation of the privileges of the house— with thU right then they are vested as being necessarily incident to the free exercise of their political functions, abstracted from every consideration connected with judicial authority which (hat body is said generally not to possess. . . The privileges of Parliament like the prerogatives of the Crown, are the rights and pri\ileges of the people. The language of Lord Elleaborouch in the case of Burdett against Abbot, in 1811, is also strictly applicable to the case before us. »* The privileges which belong to them (the houses of Parliament,) seem at all times to have been and necessarily must be inherent in them independent of any precedent, it was necessary that tbey should have the most complete personal security, to enable them to mee< freely for the purpose of discharging their important functions, and also that, they should have the right of self protection: I do not mean, ga>8 ihat learned judge, merely against acts of individual wrong, for poor and impotent indeed would be the privileges of Parlia* ment, if they cnuid not also protect themselves against injuries and affronts offered to the aggregate body, which might pre. vent or impede the full, and effectual exercise of their Parliamentary functions* Independently of any precedent or recognised prartice on the subject, such a body must a priori be armed wi(h a com* petent authority to enforce the free and independent exerci»e of its own proper functions, whatever those functions might be. On^Ais gronnd ithas been,I believe very generally ad- mitted in argument (bat the House of Commons must be and isanthorired, to remove any i/nmediate obstructions (o the due course of its own proceedings. But this mere power of 'HknoVin^ •ctiial itnpvdin^nts to 1(f procipediof 8 wduM do! be tttflRt;ki}i for the purposes of its full and efficient protection : it njust «ho have the power of protectioi^ iUeiffroro insMlt abdindigwity tiherever offered, by punUhing those who otTer iu Catr the High Conrt of Parliament, or either of the two houses of which it coniisti, be deemed not to. possess snirin- sitatly, thrtt authority of punishiog summarily tor contempia "which IB acfctnowledged to belong, add h duilv oxeicised -i^s l^elongitig to every superior court of law, of less dignity uq- Yloubtediy than itself? And is not the degradation and dispa- ragement of ihe two Houses of Parliament in tUe esiimatiofl of the public, by contemptuous Iihel8,a8 much an impediment td their efficieni acting with regard to ibe public, as uie actual obstructioTi of an indiudual member by bodily force, ^ud In hisenoeavour to resort to the place where parliament is ^bitfen } and would it consist with the dignity of such bodies or What is more with the immediate and effectual exercise qf their important function;), ssQs$, inirin- r conteiupis jxeicUed i^s I dignity uq- c and dispi^- le esiirha(i(Mi impediment 19 (lie actual force, ^nd tarliament is such bodies exercise pf le com para* ry course 9f I wrong and , The Eaifl a paragrayii Jay, terming; not bl ush |o the relief of ule or almpst iTB declared y the fioui^, dered to at- rried without 18 committed if the debate r conferred? % ho possessed ' for the sake ifce Courts of power,f but iled, and tlie .ord Tender- I oo( exist in this monae.nt , ifheii you i^ngland, tt;at ta snd imurio tiun of ibfit 25 for the VMkttif iWiSnilon tiifktt^Uffor ivh6M ^elftir«4nalir poBse^Bed tbis power; it was for these reasons thejf ought to possess tt,ftfid At was q^ite sure (hat if (bey,find espe* cially the iko Houses of P^rliamenf, did not]^osse8s this ppwrir of viodicatiog Yfti^ms^Zvey, it would be impossible that their I'e- spective duties could be performed with dignity Co tbemselVes or.witb ad vabtftge to the country, Tbis ajraii) shews the ptrivlioge in question does not defi'eoil .10 ftas been ergued in f hb present instacod^, ttpbn the judicial atitbority Tested ib ttte body exercisibg the right of imprisoii« ^nt for libel ; bdt trpbn ibe "firincipTe of self defeiice tin nach and as correctly applicable to the Legislative Cotinofl as a branch of the Prov1oc!&l Leglslbture as it can posiihhf i>e to either branch of the Parliament of Great Brittiio. -Besides by the conVlctibn before us, the Lef^islaiive Coun- cil have done no more than ihe House of Commons basin" TStfiably done tipoftilitnilar bccasiong* linprisoned tbe offender durinj; the sof^sion of the Legislattire, and in so doing have exercised a power wblch during a period of nearly fdrtp p^artt bfts b^etffreqtrentl^y exercised by the Assembly of this Pro- vince, and mure particularly in the recent case of Mr. Sitniiel WeirriiorthMoiilc, wlio bbtne ^Ist Fdby. 1B17« was commit, ted to the Common GaOl during pleasufe by the Assedibly, fa^ a cootemipt and vid^fa^oti of its privilegeSy find was sub- sequently discbarged by the Cbtirt on the 22d March ^ the tlime day on vrhich fbe Legisfatnre wtes prorogued. That tbetie pifvilofcie bAvb ]ik«i)riie beeb acted apbb by otber Provincial Legislatures, and have been recognised by the highest authority may be seen by the Journals of the As* embly of Jamaica, in 1808, in the cas^ of Mfejor Generlti Carmicfaael, and by the Journals of the Assembly of this Province, in the case of Mr. Monk in the year 1818) in wbicli the cases are coUeeted. privileges} No one who knows any thing of the law itnd con^ •titution of the country can hesitate for a moment In sayioi; that my Lord Chi^f Jostlce Is grievlously in error here, bnd until I «im told by my nbble friend in terns the most clear, and the mc»t explicit, I will not believe that be is prepared |o 4e£eud and josiify in law what be htA thus said ; for he bae tberebv cenrerred upon the Houseof Commons a power whieb none of his learned, oonebf bis Worst, none of bis most corrupt^ ^ube of his i^jssi caim^ bis ieasi temperate ^r Bit least respeo^ table predecessors ever dreamt of arming the Common with.** D 26 With reepect to the objectiens (akdo to the warrant of com- mitment in this case, it is asutficieot answer to say, that it does appear the party has been convicted for a breach of the privileges of the House committing; him— the same certainty^ is not necessary in bl commitment ^ which would be lequj* site to support a conviction^ there is no necessity io the commitment to state ihat the party was brought be- fore the House in custody— was made acquainted with the charge— was called upon to answer— was present when convicted and sentence pronounced— all this must or ought to have preceded the commitment, but the following au- thority is conclusive on that head. See ihe case of Rex vs. Hawk, Fortesqae 272, which is ei- pressly recognised to be law, in Rex vs. Taylor 7, D. & R. 3rd M.C. 491 : On which, Paley on convictions note e. p. 253, observes, ** indeed it is a general rule that if a warrant of commitment in execution^ manifestly defective on the face of it shews that there has been a conviction $ the Court will not .notice the defect until the conviction is returned Into Coort« and t^the coaviction be right the defects in the commitment will be cured, provided the latter shews the like offence as is stated in the conviction. ^ Much more might be urged upon the present oceasioti, bi»t it is unnecessary, coinciding as i do in the j.udgment of the Court, and being decidedly of opinion that we cannot ajSbrd the lelief sought for— therefore,, let the prisoner Ludger Ouvemay be remanded. ,,■ The same order must also be entered in the case of Daniel Tracy, brought before us by another writ of Habeas Corpus, and convicted by the Legislative Council, on the same 17th January last, 'for a like breach of the privilegeCof the House, liy publishing at Montreal, in the patmr entitled the Vindk. cator, of Tuesday the 9th January, ld^2, a libel against that body. TASCHEREAU, J. ! This question leads us to consider, Ist. If each House of J the Imperial Parliament has a right to imprison for libel against the Body. 2diy. If this right of the Imperial Parli- ament extends to both Houses of the Provincial Legislature. .And 3dly. If Courts of Justice can take cognizance of this matter. It is unquestionable that the Lords and Commons have in. irariably exercised this right, and although it may have been questioned by some individuals, Courts of Justice have recog- nised it io all cases.' The Lordsand Commons, according to the enormity and tendency of the libel, have sometimes coo*^ cidfir*>d it as * contennDt of their Sodv^ cninAiimtfa aa m m<»f>« breach of their privileges, but in whatever light they may 27 rrant of corn- say, that it [>reacb of the me certainty^ Id be lequi* essity io the brought be- laioted with was present this must or bllowiog au* , which is ex- 7, D. & R. loiee. p. 253, a warrant of t the face of it 'oun will not d into Coort« comnfiitmeot » offence as is i Dceasioti, bi*t gmentof the cannot a ford oner Ludger ise of Daniel tbeas Corpii9, Jie same 17tli of (be House, dthe VindL, li against that i tch House of i son for libel iperial Parli- I Legislature, zance of (his oons have ia« ay have been [^ e have recog- "^ according to metimes con*^ litve considered i(, 'they have uniformly exercised the ri^ht of punishing it. Examples without number, before and up to the time of the Commonwealth, from the period of the re-establishment of the monarchy to the revolution in 1688, from that time to the end of the reign of William the Third, and from (he latter period to the latest reigns, attest (hat under all circumstances, either of revolution or political changes in which England may have been placed, the two HouAes of Parliament have always enjoyed and exercised the ii$;ht of imprisoning persons, whether members of (heir own Body or not, for breach of their privileges, either arising from injurious language, or writings deroga(ory (o (he honour and charac(er of (he House or any of iis Members, af(ei^ having declared them guilty of a breach of (heir privileges. 'Wha(ever may have been (he origin of this right, whether it is derived from the Aula Regi8,whose privileges Parliament enjoyed when both Houses were united, and which (hey res- pec(ively preserved when they became separated in(o two bodies; those precedents establish the Parliamentary law on (his point, as well as i(s utili(y and nece8Si(y for maintaining the dignity and independence of bo(h Houses— > they also e«(abli8b an acknowledgment of this right, by the Counts of justice and i(s analogy to their own powers. Al- though on certain occasions (he House of Commons may have thought it nrare proper from circumstances of the moment, to have recourse (o (he ordinary Tribunals, it has not (hereby renounced (he right of maintaining its privileges by its own authority — and the case of Sir Francis Burdeti proves this fact. These Bodies have always considered (hem* aelveg as sole Judges of coii(emp(s again8( (hemselves and as guardians of (heir own privileges. In fine, it is a right coeval with the Cons(i(u(ion, it is a right which* may be truly said to be part of the fundamental law of Parliament. Parliamenlary Law is a par( of the Law of thfi Land, and part of this Lex Terrae is (o be found in (he Great Charter, wherein it is declared ♦» That no freeman shall be imprisoned unless in vir(ue of a judgment of his Peers or ly the Law of the land" This right, so essendal to (he liberty of speech, to the independence of these Bodies and to the general safety of (he State, as well as of the^e Bodies themselves must be considered as inherent in them. It is upon these principles (hat prosecutions ins(i(u(ed in Cour(sof Justice in order to contest (hese rights have been dismissed, and that persons brought before (i^«n by Habeas Corpus, have been invariably remanded upon sight of (he return to the Writ, when it appeared they were committed by Warrant of the Speaker. This Province enjoysa Con«ti(ntioo similar (o (hat of Ear- virtue of a particular Statute, is D 2 to make m S8 iiftWi for the welfare and good government of the Province. /kll^ugMl^^i'^^*^'®' °i^Q^>^'^ only ihii pqvfer, U does not dej>|i;yf tbe Colonial Letd^latiire of their powi^rs wMcb ar^ U^njepppt find, necessary to Bodies constituted to |ierform. t)l^ird^M08 With liberty, indepedence and for tlie general g9od. Each Body of the Colonial Legi»lati?re niusthave in itself ibe elements of its oitn preservation and possess those rights which are inherent to similar Bodies, and without which it wplud be constantly exposed to contempt anddes* tructiont Then where, to what country or body must it look toseekforitspowersand protecting laws, if it is not to the Bodiesi (both Houses of Imperial Parliament) who have given the country a participation in a free, but strong and powerful Constitution, capable of maintaining itself. If in England tlips power is recognised as inherent in the Constitu- tion« that is to say, as a Parliamentary Law necessary to the S41 dependence of their Bodi?s, as a law of the country, it exists in this country. In granting us the Constitution, Gri'at Britain has given us the Laws to protect it. Although the Con^tituliona| Act maintains but certain particular duties, t|iis does not deprive the Colonial Le^i^slature of the other powers which are enjoyed by the other Colonies, where Constitutions are only established by Charier; indeed the provincial Legislature has performed|Oiher duties inherent in Ibe Imperial Parliament aiidthe right.of doing which cannot be denied to our Provincial Legislature, all iiough not mei|<* tloned in the Constitutional ActhT and their duties are also of liigK importance and required power and independence of ^ constitutional character to fulfil them. These rights have been claimed and exercised in this couniry bince the com- nencemeni of the Constitution, and the satire, thins has ob^- lained in the other Colonies, in Jamaica as well as elsewhere, i and they h^ve been sanctioned by the Courts of luttticeof ' this country in the case of Samuel WentwortSi Ms^nk* It is true 18 else where, >f luitticeof MS'nk, It Souse. But of. contempt rivilege, and ) a ri);ht to iiempt, not- Act on the t the rif(ht of tlication of a- Its own pfi- coDtemptsof io thiscouo. which could' iree bancBei* mbly,) being wn lM)dy the S9t guardian of its own privileges, it had juHsdictfdi||Q the pre- s9ni iaatatlce, andir. it had jurlsdlciloD, it heitiit • t>^y ^n, inferior to other tHbuaals, wa htve not the v>o#^r is retiM* its. proceedings, we are not a Gourt^f Appent^fmim wttal, it may have decided. We cannot take eognlzaace ofitspri- nleises, it belongs ad alind examen* The Habeas Corpus act in. ij^ogland could oot certainly give toone judge aJoiie ia^ Chambers, or to a Court the power of judging the privile|;^f of'the Lords and Commons, neither then can the Habekt- Corpua act give us the right of judging the privileges of thn Legislative Council or Assembly. TAe Bill of Rights which forms part of the Parliamentary, law says that,** the liberty of speech and debate, or proceedings in Fartfameni shall not be impleaded, nor he called in question by any Court or other pilacv out of Parliament." This act or charier which cotii*. puralivelyspenkiug is ngt of ancient date, is but Sclera tory of these ancient and necessary lights and privileges of.. Bmp* liameot. This act is as much in force in this province as In England. We granted the Habeas Corpus, not being aware of the eiact nature of the commitment, but now that we see that it Is inconsequence of a judgment of the Legislative Council*, respecting us privileges, and that the imprisonment is in exe» cutifMi of that judgment, we must stop, and cannot liberate the persons imprisoned, nor admit them i to bail. — It is uecet* sary to be observed that great confusion and disorder would follow, if we could upon a writ of Habeas Corpus, examine and determine upon contempts of higher Courts. — This power of committing 0OWS from the primary principles of justice, for if the Council has a right to decide, it has also the right to punish. It is objected, tt it the power of either House to imprison for libel is contrary to the Law, which leaves thede*- cision of such cases to juries, and especially to IVlr. Foil's act which leaves all, the fact of the publication as well a^ the question of libel to the jury. But this act was never in- tended to annul the rights and privileges of Parliament. It affects only those cases broughi before a jury, aod not upon those brought before Parliament, and moreover the case of Burdett, which happened in 1811, in which this question was decided after solemn agreement. Is lon^ pos* terior to Mr. Fox's act which is the 32 Geo. III. cap. 60» It is also stated that the case of Burdett was one where the House had punished one of its own memiiers* But in that case the Court took not into consideration whether he was a member or not, it decided on the general question as to whe* ther the Commons could take cognizance of a libel published against its own body and punish the author. It i\ farther ohjecred that the prisoners have been i »_ lil I :. t I ^i 90 aM*«r «o this i« to He found in the commument — 1( appears by tfae commitment that they have been found guilty of a hreach of privilege.— Thii.fiuppoges that they have been pre- viously heard.— We have nothing to say on the mode of pro- ceeding in Parliament, ihey have iheir system as we ba«e ©lire ; they have jurisdicUon and that is sufficient to stop ug from goine any further. ...» j '^For these reasons and those given by the other learned iiidges, I am of opinion that we cannot liberate the Defen- dants on the present occasion.' a the opinion of tlbe Honorable Mr. Justice Tascbereau, liavinff been civen in French, the publishers of this report beg his indulgence if any error has been mad© by their translator. I( appears uilty of a been p re- de of pro - Eis we have I to stop us pr learned ihe Defen« tscbereau, this report le by their ^i