A colony is only a colony
Newfoundland’s first election was held in November 1832. Decades of agitation by local reformers, supported by a handful of members in the British House of Commons, had led to the grant of Representative Government.
The 15 members met for the first time on Jan. 1, 1833. It very soon became obvious that the move towards democracy only intensified the never-ending disputes between English and Irish, Roman Catholic and Protestant, which roiled St. John’s, the centre of both political and commercial activity in the Colony.
Patrick O’Flaherty, in “Old Newfoundland: A History to 1843,” his recent study of the period, described the results trenchantly: “ With the  election the seed of ethnic and sectarian hatred took root.” The 10 years that followed were marked by increasingly bitter disagreements between English and Irish, Protestant and Roman Catholics.
Newfoundland’s new constitution was modelled on that of Britain, at least superficially. A Council appointed by the Governor stood side-byside with the elected House of Assembly, just as the House of Lords and the House of Commons stood side-byside in Britain. New laws required the approval of each. The elected House and the appointed Council soon fell to fighting, and a long series of arguments took place as the House sought the right to levy taxes and approve expenditures, as well as to control the civil service of the day, while the Council claimed equal power to do so.
The era was one of strong personalities. John Kent, an early and ardent reformer, was a stormy petrel. Elected to the House of Assembly in 1832, and re-elected in 1836 and 1837, he clashed repeatedly with Edward Kielley, a fellow Roman Catholic and a friend of the Governor, Sir Thomas Cochrane. In 1834, Cochrane ousted William Carson, a leading reformer, from his lucrative job as District Surgeon in St. John’s, and gave the job to Kielley. Carson took great offence to this.
The ill feelings brought about by the incident festered until the summer of 1838, when Kent, Carson’s ally, made a strong verbal attack upon Kielley in the House of Assembly. Several days later, the two men met by chance on the street, and exchanged harsh words. Kent called Kielley “a robber of the poor;” Kielley, in turn, described Kent as “a lying puppy.”
Kent, claiming that his privileges as an MHA had been violated, complained to his fellow members. They voted to arrest Kielley, and to bring him before the Bar of the House, where he would face Carson, by now the Speaker, and the other members. Thomas Beck, the Sergeant of the House, duly arrested Kielley, and brought him before the House. He remained in custody for several days, having twice refused to apologize for his remarks.
Kielley then petitioned the Newfoundland Supreme Court for a writ of habeas corpus, the age-old remedy (dating back to Magna Carta, in 1215), developed by the British courts to protect a person arrested without just cause. Judge George Lilly of Newfoundland’s Supreme Court, heard the case, declared that the House had no right to arrest him, and ordered him freed.
Members then lost their heads, figuratively but not literally. They ordered that the Judge be arrested, that Kielley be re-arrested, and that for good measure the sheriff, Garrett, be arrested as well. Lilly was dragged from the court house to the Assembly chamber and Garrett, too, was taken into custody. But Beck couldn’t find Kielley, who had hidden himself in a house in St. John’s.
The governor (Sir Henry Prescott, who had succeeded Cochrane in 1834) had had enough. He prorogued the House of Assembly on his own initiative. The judge and the sheriff were released, and Kielley was able to emerge from his hiding place.
Kielley, not the least bit cowed by either Carson and Kent or the entire House of Assembly, promptly sued the two men, alleging “assault, battery and false imprisonment.” Two of the three Newfoundland Supreme Court Judges dismissed his lawsuit, while Lilly held that it should be allowed. Kielley appealed to the Privy Council in London, the highest court in the Empire.
Eleven of England’s most senior judges, led by the Lord Chancellor, heard the appeal during a three-day hearing in January 1841. Sixteen months later, in May 1842, they agreed unanimously that the House had no right to arrest Kielley or the other two.
In doing so, they put Newfoundland’s House of Assembly in its place: “ They are a local legislature, with every power reasonably necessary for the proper exercise of their functions and duties, but they have not what they have erroneously supposed themselves to possess — the same exclusive privileges which the ancient Law of England has annexed to the Houses of Parliament.”
A colonial legislature was just that — a colonial legislature. And Newfoundland’s House of Assembly was one.
By then, however, the British government had already tried to resolve Newfoundland’s political difficulties by abolishing the 1832 constitutional arrangements and replacing them with an “amalgamated” legislature, in which elected and appointed members sat together. But that arrangement, too, failed, and was eventually replaced in 1855 by Responsible Government, which lasted until the coming of the Commission of Government in 1934.
Kent, the man who had touched off the row, became the second prime minister of Newfoundland in 1858.