At the time this article was published
the late John Courage was Speaker of the Newfoundland House of Assembly from
1957-1962. This article is an extract from an MA thesis submitted to Memorial
University in 1962.
Parliamentary privilege consists of the special
rights attached to Parliament, its members and others necessary to discharge
the functions of Parliament. It includes the right to punish those found in
breach of parliamentary privilege. In the very early years of representative
government in Newfoundland, the House of Assembly became somewhat overzealous
in protecting its privileges. This article describes a question of privilege
which became an important constitutional precedent.
On August 6, 1838 John Kent, a member for
St. John's, complained in the House that Dr. Kielly, a St. John's physician,
had threatened and insulted him that morning because of statements he had made
in the House about the St. John's General Hospital.1 He claimed the
protection of the House, which at once resolved itself into a Committee of
Privilege. This Committee examined two witnesses to the quarrel, Patrick Byrne
and Richard Butt. Both men testified that Dr. Kielly had called Kent a puppy,
and had threatened to pull his nose. Butt testified too that Dr. Kielly had
told Kent that his privileges would not protect him. This was enough. The
Committee immediately rose, and reported to the House that the conduct of Dr.
Kielly was "a gross breach of the privileges of this House", and that
if allowed to pass unnoticed, it would be a sufficient cause of "deterring
members from acting in the independent manner, so necessary for a free
assembly. The Speaker was authorized to issue his warrant to the
Sergeant-at-Arms, to arrest Dr. Kielly, and bring him before the Bar of the House.
The following day the bold Dr. Kielly
appeared at the Bar in the custody of the Sergeant-at-Arms. The Clerk read to
him the evidence of the witnesses, and the report of the Committee on
Privileges. The Speaker then gave him a chance to explain. But in the course of
his explanation, the peppery Kielly lost his temper and called John Kent a
liar, a coward and "many contumelious epithets".2 The
House ordered the angry doctor to withdraw, and then passed a resolution that
he should continue in the custody of the Sergeant-at-Arms "until further
orders from the House". An affronted member now moved that Doctor Kielly
be sent to gaol until, "he do make such apology in manner and form as the
House shall dictate". This motion did not pass.
On August 9th the House decided to discharge
Doctor Kielly, if he would pay all expenses and apologize. But when he was
again brought to the Bar of the House, the stubborn doctor again refused to
apologize. The harassed House then sent him to gaol. Two days later the House
requested Mr. Speaker to order the High Sheriff to bring to the Bar of this
House, the body of Edward Kielly". When the frightened Sheriff appeared,
he told the House that he had, by order of a writ of "habeas corpus"
brought Dr. Kielly before Judge Lilly who had then discharged him. He produced
a copy of the Judge's order, which read: "The prisoner, having been
brought before me on a writ, and after perusing the return of the sheriff
hereto, I am of the opinion that the process by which the prisoner is held in custody
is void. and I do now order him, therefore, to be discharged. The writ was
signed, George Lilly, Assistant Judge."3
The House did not allow such a defiance of
its authority to go unchallenged. It immediately resolved itself into a
Committee of Privilege, and after considering the insult to its privileges, the
Committee recommended that the Judge and the Sheriff both be imprisoned,
"for acting in gross contempt of the Speaker's warrant, and a violation of
the privileges of the Commons, the House of Assembly." On the morning of
August 13th, 1838, the citizens of St. John's were treated to the spectacle of
a venerable judge of the Supreme Court, being marched through the town to a
common gaol by the Sergeant-at-Arms bearing the Mace.
When the House met in the afternoon, the
Sergeant-at-Arms informed the members that Judge Lilly and the High Sheriff
were both in gaol, but that he had been unable to find Dr. Kielly. While the
members were trying to determine what action they ought to take next, a letter
from the Governor was delivered informing the Speaker that he was coming down
immediately to the Council Chamber to prorogue the General Assembly. The House
then went into Committee of Privilege to decide what it should do. This
Committee presented a resolution to the House setting forth what had happened
and stating that prorogation at this time would "leave the public to
conclude that the House of Assembly had acted unconstitutionally. The Committee
also recommended that a deputation be sent to Canada, to lay the whole matter
before the Earl of Durham, "Lord High Commander of Her Majesty's North
American colonies", and to ask him to suspend Judge Lilly and High Sheriff
Garrett, and to enquire into the action of the Governor in proroguing the House
of Assembly "in the midst of the business of the colony". They
elected the Speaker, the doughty Dr. William Carson, and Peter Browne, one of
the members for St. John's as the delegates. The House then adopted a long
address to the Earl of Durham, in which they set forth their grievances, and
described Judge Lilly as "a man whose habits and education unfit him for
the high situation of a judge".
Another messenger now arrived from the
Governor to say that he was prepared to pass the Revenue Bill, and he requested
it be sent to him immediately for his signature. But the House was not going to
be browbeaten in this way. They sent back a reply that they could not comply
with the Governor's message. The exasperated Governor immediately summoned the
members to the Council chamber, and prorogued the House. In his speech from the
Throne, he stated frankly that he had prorogued the House in order to put a
stop to these proceedings which he described as unsuited to the character and
condition of the colony. He said that the actions of the House of Assembly were
calculated to subvert the respect which was due to the administrators of the
laws in the exercise of their functions. With the House prorogued, the Judge
and Sheriff were released from gaol.
The Supreme Court of Newfoundland later
upheld the actions of the House of Assembly, but this decision was overruled by
the Judicial Committee of the Privy Council in 1842. Its judgement declared
that the privileges of the British House of Commons, of which the right to
punish for contempt is one, belong to It, "by virtue of the lex et
consuetudo parliamenti" which is a law peculiar to. and inherent in,
the two Houses of Parliament of the United Kingdom, and is not transferred to
The bold Dr. Kielly now became the hero of
the Tories, and songs were sung in his honour.5 The author remembers
singing as a boy in Fortune Bay, once a Tory, stronghold:
"Did you ever see Dr. Kielly Oh? With
his boots all polished and styly Oh? With his high cocked hat and fiddle and bow,
Did you ever see Dr. Kielly Oh?"
The debonair doctor was not lacking in
courage or optimism, for in 1843 he petitioned the Governor asking that all the
costs incurred in the suit of Kielly vs. Carson be paid by the House of
Assembly.6 The House refused to pay these costs which amounted to
It is only fair to say, in defence of the
actions of the House of Assembly, that the Privy Council's ruling in 1842 was a
reversal of Its own judgement in the case of Reatimont vs. Barrett in 1836.
which had upheld the right of colonial assemblies to punish for contempt. Also,
in the neighbouring Province of Nova Scotia, the Assembly had long held fast to
its right to punish and imprison people guilty of breaches of privilege. In
1759, the House of Assembly of Nova Scotia had arrested the Deputy Secretary of
the Province for using, "very threatening and scandalous words against a
member. In 1829 they had expelled a member, John A. Barry, and later when Barry
published a letter in which he referred to the Committee of Privilege as a
privileged committee", the House had ordered him to be imprisoned for the
remainder of the session. It is not strange that with these precedents of Nova
Scotia, and the decision of the Privy Council in Beaumont vs. Barrett in front
of them that the members of the House of Assembly o~ Newfoundland had come to
the conclusion that they had a right to imprison those who insulted and
threatened members, and defied the authority of the House.
Kielly vs Carson is an important case
because it declares that colonial parliaments do not have the inherent right to
adjudicate upon and inflict punishment for contempt, that being a judicial, and
not a legislative power, but only the self-preservative power of removing any
immediate obstruction to its own proceedings. This principle was again declared
by the Supreme Court of Canada in Landers vs. Woodworth. In 1876 the Nova
Scotia House determined to preserve its privileges passed an Act which not only
provided privileges similar to those of the Canadian House of Commons, but
created itself a Court of Record, competent to try and punish a comprehensive
list of offences described in the Act as breaches of privilege. This Act was
not disallowed by the Canadian House of Commons.
Section 11 of Newfoundland's House of
Assembly Act, declares the following actions illegal: assaulting members during
session, obstructing and threatening members; refusing to obey a rule or order
of the House; or tampering with witnesses of the House or its Committees.
Section 12 protects from damages persons who act on the authority of the House.
Section 16 provides that persons found guilty of violating an Act are subject
to a penalty of not more than 5100.00 or to imprisonment not to exceed three
months during the session of the legislature as the House may determine. By
this Act, the House constitutes itself a court competent to try and sentence
persons whom it thinks guilty of infringing its privileges. But its authority
lasts only during the session, for prorogation or dissolution of Parliament
puts an end to the imprisonment of anyone it has sentenced.
1. Journals of the House of Assembly,
1838, p. 60.
2. Ibid., p. 67.
3. Ibid., p. 73
4. Kielley vs Carson, 4 Moo, PCC 63.
5. Prowse, History of Newfoundland,
6. Journals of the House of Assembly,
1843, p. 111.