the Legislative Assembly the right of judging for itself what constituted a contempt, and of ordering the commitment to prison of persons adjudged by the House to have been guilty of a contempt and breach of privilege, by a general Warrant, without setting forth the specific grounds of such commitment; and J. C. 1871 w THE SPEAKER OF THE Thirdly, that as G. had been guilty of a contempt and breach of the privi- LEGISLATIVE lege of the Legislative Assembly, and had been duly committed, therefore, ASSEMBLY OF the Supreme Court had no power to discharge him out of custody. Special leave to appeal granted on the ground, that the question raised was one of public interest, involving the constitutional rights of a Colonial Legislative Assembly. On reversing the Order of the Court below no costs were given, as the appeal was only allowed to decide the abstract question. IN this case a special appeal was allowed, first, from an Order made by Sir William Foster Stawell, the Chief Justice of the The appeal arose under these circumstances: The Appellant, Sir Francis Murphy, was the Speaker of the Legislative Assembly of the Colony. On the 11th of March, 1869, the Legislative Assembly appointed a Select Committee, with power to send for persons and papers, to inquire into and report upon certain charges which had been made public relating to the conduct and character of certain Members of the Legislative Assembly. The Respondent was, among other Witnesses, examined before such Committee. On the 6th of April, 1869, the Committee reported to the Legislative Assembly that an Association, formed for the purpose of promoting the interests of certain holders of land, had adopted as one of its modes of action the bribing and undue influencing of Members of the Legislature, and that the Respondent and one John Quarterman being Members of such Association, and cognisant of this mode of action, had actively aided in the administration of the funds of the Association. On the 27th of April, 1869, the Legislative Assembly resolved, that the Respondent and Quarterman had actively aided in the administration of the funds of the Association, employed in the bribing and undue influencing of Members of the Legislative Assembly; VICTORIA v. GLASS. J.C. 1871 that in the opinion of the House they were guilty of a contempt and breach of the privileges of the House; that they should be taken into custody of the Sergeant-at-Arms, in order that they might be brought to the Bar of the House; and that the Speaker LEGISLATIVE should issue his Warrants accordingly. THE SPEAKER OF THE ASSEMBLY OF The Appellant, as Speaker, issued his Warrants, which were in general terms, and did not allege any specific offence, under which the Respondent and Quarterman were on the next day arrested and brought to the Bar of the Legislative Assembly, when the Speaker informed the Respondent that he had been found guilty of a contempt and breach of the privileges of the Assembly, and the Respondent read a written statement in mitigation of punish ment. On the 29th of April, 1869, the Legislative Assembly resolved that the Respondent and Quarterman having been guilty of a contempt and breach of the privileges of the House, should be for their offence committed to Her Majesty's Gaol at Melbourne, and that the Speaker should issue Warrants accordingly. The Appellant, as the Speaker, thereupon issued his Warrants under his hand, reciting the above resolution of the Legislative Assembly, and requiring the Sergeant-at-Arms to deliver the Respondent and Quarterman to the Keeper of the Melbourne gaol, and such Keeper to receive and keep them during the pleasure of the Legislative Assembly, and accordingly the Respondent, with Quarterman, was removed from the Bar of the Assembly and detained in the custody of the Sergeant-at-Arms until the 30th of that month, on which day they were taken to Melbourne Gaol, and detained there until the Respondent was discharged under the writ of Habeas Corpus hereinafter mentioned. While the Respondent was a Prisoner in Melbourne Gaol, the Appellant issued another Warrant, similar to that lastly hereinbefore mentioned, except that it contained no reference to Quarterman. On the 30th of April, 1869, the Respondent obtained a Writ of Habeas Corpus, directed to the Keeper of the Gaol at Melbourne, to which the Keeper returned, as the causes of his detaining the Respondent, that he had received the two Warrants before mentioned. The Chief Justice, assisted by two other Judges, heard the arguments of Counsel for and against the discharge of the Respondent from imprisonment, and on the 1st of May, 1869, gave judgment, ordering his discharge. On the 6th of May, 1869, the Legislative Assembly appointed a Select Committee to inquire into the proceedings relating to the discharge of the Respondent, and subsequently to receiving the the report of such Committee, resolved that the House should not in deference to the decision of the Chief Justice abandon the power of committing by means of a Warrant in general terms. And also that the necessary steps should be forthwith taken for subjecting the decision of the Chief Justice to the review of the Privy Council. It was considered that to enable the Appellant to appeal to Her Majesty in Council, it was necessary to obtain a judgment of the Supreme Court, and accordingly a rule nisi was obtained to set aside the Order of the Chief Justice. On the rule coming on for argument before the full Court on the 3rd of July, 1869, a preliminary objection was taken, that the Court had no jurisdiction to rescind the Order of a Judge made on the return of a Writ of Habeas Corpus, and the Court, adopting this view, discharged the rule. The following reasons for judgment were transmitted to England pursuant to the rule of the Judicial Committee: "The extent of the powers conferred by the Act, No. 20 Vict., No. 1, on the Legislative Council and Legislative Assembly, forms the sole question for consideration in this case. For the commitment it is alleged that these bodies have been empowered, not merely to commit for contempt, but also to commit by a Warrant in general terms. And against it, that every such Warrant should either so describe the contempt as to shew that it was of a kind for which the Commons House of Parliament might have committed in 1855, or should at least contain some general averment to that effect. The other objections to the Warrant need not be considered, though they may be regarded as supporting, indirectly, the principal ground. By the Act referred to, the Council and Assembly enjoy, it is alleged, the privileges, immunities, and powers of the House of Commons at the time the Statute, 18 & 19 Vict. c. 55, was passed, so far as they are not inconsistent with that enactment, VOL. III. 3 2 X J. C. 1871 THE SPEAKER OF THE LEGISLATIVE ASSEMBLY OF VICTORIA บ. GLASS. J.C 1871 THE SPEAKER OF THE ASSEMBLY OF v. GLASS. The words' at the time, &c.,' may not possess any special significance, for the Statute confers the same privileges as the House of Commons then held; and such a clause, even in the absence of these words, would, of course, refer to the time at which the Statute LEGISLATIVE spoke, namely, its passing. Nor for the purposes of this case is it VICTORIA necessary to controvert the proposition that the House of Commong could have committed for any contempt, and by a Warrant in general terms, which was not examinable in any Court of Law. The question remains, whether the Act, 20 Vict., No. 1, conferred this authority. The plenary powers to legislate for Victoria, given to its Parliament by section 1 of the Bill in the schedule to this Statute are restricted as regards the subject of 'privilege' by the proviso to the 35th section; it is so treated, also, by the Act, 20 Vict., No. 1. These sections taken together in effect contain full authority, save that no measure declaring the privileges of Parliament can confer larger than those possessed by the House of Commons in 1855. As the powers of that body are not to be exceeded, a standard, limiting the extent of the powers to be given, has necessarily been erected-that of 1855-and the Act declaring the privileges has so described them. Whether, on a comparison being instituted between the actual exercise of their respective powers, the limit so assigned may or may not, in practice, amount to a real restriction, is not the question. It is clear that, to the extent referred to, the Parliament of Victoria does not possess unlimited powers of legislation. The necessity for imposing, or rather the imposition of a limit, excludes by fair intendment the supposition that, by the general words used, an authority was granted which would necessarily have had the effect of neutralising the operation of that limit. The Act affects the liberty of the subject, and must, therefore, be construed strictly. Even assuming, for the purposes of argument, that the right to issue a Warrant, as contended, could have been acquired by the insertion of special and express terms, yet the general words of description by reference are insufficient to negative the presumption that arises against that right having been given. If the powers of Legislation on this subject are limited, the enactment passed by virtue of them, and the Warrant issued under that enactment, should each shew that the limit has not been exceeded. There must be some mode of deciding the question of excess or no excess. A Court, itself created by an Act of Parliament, does not, in entertaining such a question, review the Acts of that Parliament in the ordinary sense of those words; but if, as in this case, there is no other Tribunal before which in the first instance the question can be brought, to hold that this Court, although so created, cannot consider the question, is in effect to say that no Court can; and that in the case of limited powers no means exist of testing the validity of their exercise, or determining the proper construction of an Act of Parliament; although the ordinary Tribunals for such a purpose have been established, and the consideration of such a subject forms one of the most important functions of a Court of law. The 2nd section of the Act, 20 Vict., No. 1, by which printed copies of the Journals are made prima facie evidence of the privileges of the House of Assembly, may present some anomaly in treating as matters of fact questions which involve points of law only; but howsoever that anomaly may be removed, the section apparently confirms the view that such privileges were to be called in question in some way or other. To confine its operation to proceedings before Committees of each House would be scarcely consistent with the comprehensive language employed; and yet if a Warrant in general terms affords a sufficient answer to arrest and imprisonment, it is difficult to discover how such evidence would be of any practical utility. The recent decision in Dill v. Murphy (1) shews how readily an unexceptionable Warrant may be framed, even in the case of a commitment for contempt extra muros. The argument urged on the hearing of this case embraced many topics to which allusion was not made in delivering judgment; the conclusion arrived at was not affected by them, and the great majority, if not the whole, have been dealt with in the judgment of this Court, pronounced in the case of Dill v. Murphy, and the later one of Stevenson and others v. The Queen." In consequence of this decision the Appellant, the Speaker of the Legislative Assembly, presented a petition to Her Majesty in Council for special leave to appeal from the Order of the 1st of May, 1869, discharging the Respondent on the Writ of Habeas Corpus, and also from the rule of the Supreme Court discharging (1) 1 Moore's P. C. Cases (N. S.) 487. J. C. 1871 THE SPEAKER OF THE LEGISLATIVE ASSEMBLY OF VICTORIA v. GLASS. |