1836.

ecuted the warrant on the 4th of December, and against BEAUMONT the other respondents, for having executed the war

v.

BARRETT.

rants. The Honourable John Lunan and William Myers were originally defendants, but the appellant entered a nolle prosequi as to the former, and Myers being also since dead, a suggestion of his death was filed.

The declaration contained four counts. The first was for an assault and battery, dragging the appellant from his dwelling-house through the public streets to the common gaol of Middlesex, and detaining him in prison there without any reasonable or probable cause, whereby he was injured in his person, credit and circumstances. The second count was for an assault, battery and imprisonment. The third count was for an assault and imprisonment; and the fourth count was for an assault and battery.

The respondent, the Honourable Richard Barrett, the Speaker of the House of Assembly, severed in pleading from the other respondents. He pleaded, first, not guilty to the whole of the trespasses charged, and to the first count of the declaration he pleaded a justification of the several trespasses complained of, stating the circumstances already detailed, the resolution of the House, and the order thereon.

The plea then stated the delivery of the warrant to the serjeant-at-arms; that in execution of it he went to the appellant's dwelling-house, gave him notice of the said warrant, and that he, the said serjeant-atarms, had then come there to arrest him by virtue of such warrant. That the said serjeant-at-arms required the appellant to surrender himself, but that he refused to do so, and violently resisted, and endeavoured to prevent its execution. That in consequence

1836.

V.

BARRETT,

of such resistance, the serjeant, with the assistance of such of the respondents as were magistrates and BEAUMONT constables, arrested the appellant by his body, in execution of the warrant, and in obedience to the warrant compelled him to go out of his dwelling-house into the street, through which he conveyed him to the gaol, and then delivered him into the custody of the keepers of the said common gaol, who then and there took the body of the said appellant into their custody, in obedience to the said warrant aforesaid. The plea then stated the further order of the House for detaining the body of the appellant during the pleasure of the House. It then stated the delivery of this said last warrant to the keeper of the common gaol; and the plea averred, that the appellant and the said Augustus Hardin Beaumont, in the said resolutions, order and warrant mentioned, was and is one and the same person, and that during all the time in the plea mentioned the said House of Assembly was sitting.

To the second and third counts the Speaker pleaded justifications similar to that which he had pleaded to the first count: but the plea to the third count did not mention the appellant's resistance to the execution of the warrant. It stated the imprisonment under both warrants, and concluded by averring that he, the respondent, Richard Barrett, was not guilty of the said supposed trespasses, or any of them, in the introduction of the plea mentioned, otherwise or in any other manner than by the making, signing, issuing and delivering of the said warrants as Speaker, in pursuance to the resolutions and order of the House.

The defendant, John Morce, pleaded the general issue to all the trespasses; and he also pleaded a justification to the trespasses in the first, second and third

1836.

counts, under the resolution, orders and warrant of the BEAUMONT 4th of December.

V.

BARRETT.

Morce died before any further proceedings were had in the action, and a suggestion of his death was duly filed.

The respondents, Edward Trueman Guy, William Ramsay, Henry Lowndes, Benjamin Whittaker, Alexander Deleon, Isaac Soares, and William Dalton, and the defendant, William Myers, pleaded the general issue to the whole declaration, and to the first, second, and third counts they pleaded a justification, under the resolutions, order and warrant of the Speaker of the 4th of December. The said Edward Trueman Guy, William Ramsay, Henry Lowndes, and William Myers, averred that they were justices of the peace, and Alexander Deleon, Isaac Soares, and William Dalton, averred themselves to be constables; and they all stated that they were acting in aid of the serjeant-at-arms in the execution and according to the exigency of the said warrant of the 4th of December.

The respondents, John Augustus Sullivan and Alexander Joseph Lindo, pleaded the general issue to the whole declaration, and a separate plea of justification to each of the three first counts, under the Speaker's warrants of the 4th and 5th December, in which they justified the assault and imprisonment, under the orders and resolutions of the House and the warrants of the 4th and 5th of December, which were set forth in each of the pleas. The respondent Sullivan averred that he was the provost-marshal-general, and the respondent Lindo averred that he was his deputy; and both stated that they were by virtue of their offices keepers of the common gaol.

The defendants Webb and Clinch pleaded the general issue only.

1836.

BEAUMONT

V.

The appellant joined issue on the respondents' pleas BARRETT. of not guilty, and demurred generally to their several pleas of justification. The respondents joined in these demurrers.

In the same February Grand Court the demurrers came on to be argued, and in the succeeding June Grand Court judgment was given for the respondents.

The appellant sued out his writ of error, returnable before the Governor and Council; the common error was assigned, and the respondents joined therein.

On the 17th November 1834 the cause came on before the Governor and Council upon the writ of error; and after argument, the judgment of the Grand Court was affirmed.

The appellant then moved his Excellency the Governor and Council for leave to appeal from the said judgment to His Majesty in Council, which was granted accordingly.

Upon the argument of the demurrer in the Court below, the appellant stated a variety of points as grounds for his demurrer, which were considered as comprehended in and as presenting for the decision of the Court the two following questions:

I. Whether the assembly of Jamaica possessed the power of committing for any contempt which was not any immediate obstruction to the due course of its proceedings: and,

II. Whether, if that power were possessed by the Assembly, it had been shown by the pleas of justification to have been regularly exercised.

1836.

BEAUMONT

v.

The Appellant in person.

There are four questions arising from these proceedings: first, whether the House of Assembly of Jamaica possess the power to commit for an alleged breach of their privileges; second, whether privilege of Parliament, if possessed, can be pleaded by way of justification; thirdly, whether such privilege was properly pleaded in the Court below; and, fourthly, whether, if properly pleaded, it amounts to a justification. The two first points I admit to be the chief and important ones for consideration; and in order to comprehend them, we must take a brief survey of the history and constitution of the island (a).

It is well known that Jamaica came into the possession of the English by conquest during the Commonwealth; and upon the Restoration, the first commission, dated 12 February 1661, issued to Colonel D'Oyley, confirming him in the government of the island, and establishing a council of twelve persons, to be elected by the people according to the manner prescribed in the instructions, and who were to advise and assist the Governor in the civil and judicial government of the island. By that commission the Governor was directed to create courts of judicature, and with the advice of the Council to pass laws suitable to the exigences of the colony. In 1662, Colonel D' Oyley was succeeded by Lord Windsor, whose commission, besides containing the power before given to Colonel D'Oyley, directed that, in case of his dying or leaving the island, the government should devolve on the Council, or any seven of them. The instructions which accompanied the new commission contained no new directions as to the mode in which the Council should be appointed; and it appears that

(a) 6 State Trials, 1349-1399.