1878 same sense, were against law. This proposition I canLANDERS not admit willingly. v. WOOD WORTH. A short reference to the cases in which these judgments were rendered will certainly account for my fears of inconsistency with myself. There were in February, 1832, at the city of Quebec, the two cases of the Queen v. Tracey and Duvernay (1), in which the Court of King's Bench unanimously decided, that the legislature of the then Province of Lower Canada possessed the power of committing for contempt in a case of libel by the press, and that this power was incident to that branch of the legisla ture (the Legislative Council) ex necessitate rei; that it had in itself the elements of its own preservation, did, in fact, possess those rights which are inherent to similar bodies, and without which it would be constantly exposed to contempt and destruction. The same decisions as to the Province of Quebec, then Lower Canada, are to be found in the following cases as reported: 1st. Exparte Louis Lavoie, (2); 2nd. Exparte Monk, in the year 1817 (3); 3rd. The case of Mr. Young, in 1793; 4th. The case of exparte Dansereau, in 1875, in which case I sat as a member of the Court of Appeals of the Province of Quebec (4). As to the English cases, I quote Burdett v. Abbot (5), and Beaumont and Barrett (6). But these last English cases were, to a certain extent, overruled by the decision of the Privy Council in the case of Kielley v. Carson, (7). I, for one, have the greatest respect for all the decisions of the highest court of England, and should consider myself bound by the judgment in Kielley v. v. WOOD WORTH. Carson, as one of the last leading decisions, were it not 1878 for a material difference I observe between that and the LANDERS present case, which was one of contempt committed within the House, and during its sittings, and not one merely of contempt committed outside of the House. I infer this difference from the summary of the report and the reasons of Baron Parke in Kielley v. Carson, above mentioned. The contempt complained of in the present case was committed within the House, and during its sittings. It was incumbent on the House, I apprehend, to notice the contempt, and it was accordingly done. The words made use of by the Respondent on the occasion in question were uttered by him as a member of the House, and were of such a character as to be derogatory to the honor of the House, and particularly to that of one of its members, who was accused by the Respondent of no less a crime than that of forgery. The House could at once pass a sentence of condemnation against him for using such language, so derogatory to its dignity, and so offensive to one of its members, and so calculated to disturb the proceedings of the assembly and to create disorder; but the House thought it more fitting to challenge the accusation by appointing a committee to enquire into and report on the circumstances of the case. The committee reported that the respondent had no grounds whatever to justify such an accusation, and ordered him to make an apology to the House, which, it is true, was a written one, and on his refusal to make the apology he was expelled from the House. Now, I do not think, that should our decision be against the Respondent, it would be contrary to that of the Privy Council in Kielley v. Carson, which was, as I said, for a contempt outside of the House. Had the House allowed this conduct of the Respondent to pass unchallenged, it would have exposed itself to the mockery of the public, 1878 v. WOODWORTH. it would have been a cruel treatment of one of its memLANDERS bers, and exposed the future legislation of the Province to such a danger as to deter candidates for parliamentary honors from coming forward. The sentence of expulsion was not for a past or condoned offence, but for a continuing offence from the first moment of the Respondent's utterance of an unfounded accusation. It was a necessity for the House to resent the charge, and protect one of its members, after enquiry, which was, in fact, due to the Respondent himself, and to the member against whom it was preferred. So far, it seems evident to me, that the case of Kielley v. Carson, far from being adverse to the pretensions of the appellants, does, in fact, support them. But a new feature, and, I may say, a great complication, has been brought into the case by the judgment of the Privy Council in England in the case of Doyle v. Falconer (1), which judgment is to the effect, that the Legislature of Dominica did not possess the power of punishing a contempt, even if committed in its presence and by one of its members. I am forced to submit to this judgment of the highest tribunal of England in Doyle v. Falconer. This judgment being the last on the subject is binding on this court, as much as the ruling in Kielley v. Carson, before its overruling by Doyle v. Falconer (2), would have been. I, therefore, declare, though most unwillingly, in favor of a confirmation of the judgment appealed from. HENRY, J.: Whilst agreeing with the general conclusions arrived at by my learned brethren, but holding views in some respects different, I have considered it right to express them. The Law of Parliament is defined by (1) L. R. 1 P. C. App. 328. (2) L. R. 1 P..C. App. 328. 1878 ~ v. WOOD WORTH. Coke (1) and Blackstone (2), those eminent legal authorities, thus: "As every Court of Justice hath laws and LANDERS customs for its direction, some the civil and canon, some the common law, others their own peculiar laws and customs; so the High Court of Parliament hath also its own peculiar law, called the Lex et consuetudo Parliamenti." "This law," says May, in his treatise on the law, privileges, proceedings and usage of Parliament (3), "is admitted to be part of the unwritten law of the land, and as such, is only to be collected, according to the words of Sir Edward Coke, 'Out of the rolls of Parliament and other records, and by precedents and continued experience.'" "The only method," says Blackstone (4), " of proving that this or that maxim is a rule of the common law, is by showing, that it hath always been the custom to observe it,' and "it is laid down as a general rule that the decisions of Courts of Justice are the evidence of what is common law." After quoting the foregoing, May says: "The same rule is strictly applicable to matters of privilege and to the expounding of the unwritten law of Parliament;" and adds, "but although either House may expound the law of parliament, and vindicate its own privileges, it is agreed that no new privilege can be created." As far back as 1704 it was resolved and agreed by the House of Lords and House of Commons: That neither Houses of Parliament have power, by any vote or declaration, to create to themselves new privileges, not warranted by the known laws and customs of Parliament (1). The Lex et consuetudo Parliamenti, by all the late decisions, have limits. They cannot be added to and new cases of privilege adjudged, even by the House of Com (1) 4 Ins. 14. (2) 1 Bl. Com. 163. (4) 1 Com. 58, 71. (2) 8 Grey's debates, 232. v. WOODWORTH. 1878 mons of England. If that body punished for an offence, LANDERS not one by the law and custom of Parliament, and thereby created a new privilege, is it to be said that there is at the present day no judicial tribunal to give relief, and that the resolution of the House of Commons should be above judicial enquiry? I cannot so think, for such would be contrary to the principles laid down by several learned judges in England, and now generally accepted as the rule and law. If the warrant of a Speaker, under an order of the House for the arrest of a member, or other party, disclosed on the face of it the nature of an alleged contempt, all the later decisions of the judges in England insist upon the right of the courts to inquire whether the grievance was or was not a contempt under the law and customs of Parliament, and such decisions, most pointedly expressed, have been long submitted to by the House of Commons. Lord Denman and other eminent judges held this doctrine, and it is not now questioned, and in one of his highly learned and exhaustive judgments on this point, he says there is no power in England above the law. If, therefore, the House of Commons has jurisdiction as a court only from the law and custom of Parliament, and the right to commit for a contempt is held to rest solely thereon, whence came the right of the Local Legislature of a Province to try and adjudicate upon a matter of alleged contempt? It cannot be claimed, that what the House of Commons, after centuries of political contests, with the voice of the nation to back it, found it necessary to assume in the peculiar relations existing, in the shape of judicial functions, which the nation ratified as necessary to curb and control judges more immediately under the control of despotic sovereigns, should be at all necessary or proper in regard to Provincial Legislatures. Involved in the latest and most learned decisions of the judges in England may be |