A colony is only a colony

The Compass - - EDITORIAL OPINION -

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 [1832] 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.

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