Australian Dictionary of Biography

Sir Valentine Fleming (1809-1884), chief justice, was born on 13 November 1809 at Ashby-de-la-Zouch, Leicestershire, England, the second son of Captain Valentine Fleming of Tuam, County Galway, and his wife Catherine, née Gowan. Educated at Bangor and Trinity College, Dublin (B.A., 1832), he was called to the Bar on 21 January 1838. In 1841 he was appointed commissioner of the Insolvent Debtors' Court in Hobart Town. Though regarded as something of a dandy, he soon won repute for his professional competence.

In 1844 Fleming was appointed solicitor-general. Both he and the attorney-general, Thomas Horne, as law officers of the Crown, were often called upon to advise Lieutenant-Governor Sir William Denison and the Legislative Council in 1847. When the judges held that Denison had exceeded his powers in reinstating the Patriotic Six to the Legislative Council, Horne and Fleming expressed the contrary opinion; later the Six were formally appointed under the royal sign manual. When the puisne judge, Algernon Montagu, ran into financial difficulties he and the chief justice, Sir John Pedder, held that the Supreme Court had no jurisdiction to entertain an action brought against Montagu by one of his creditors. Both Horne and Fleming were asked whether the lieutenant-governor had power to remove or suspend a judge; they separately replied that he had such power and on 31 December Denison amoved Montagu from office. Denison again sought the advice of his law officers after the Supreme Court had ruled that the Dog Act (so-called) was invalid. Horne and Fleming separately advised that the decision of the Supreme Court was wrong; relying on this advice Denison secured the passage by the Legislative Council of a validating Act.

After Montagu was amoved, Horne was appointed puisne judge; Fleming became attorney-general and in 1851 an official member of the Legislative Council. In 1852 the conflict between the colonists and the official policy of the lieutenant-governor and the Colonial Office over the continuance of transportation was brought to a head in the Legislative Council. John Gleadow moved for an address to the Queen conveying to her the opinion of the council that the time had arrived for the cessation of transportation. Denison sought in vain to defeat or delay the motion and in his tactics had the support of the attorney-general. On 19 August 1853 as the colony advanced towards responsible government a select committee was appointed to draft a new constitution. The committee of ten included Fleming and two other members of the legal profession and it reported to the Legislative Council on 28 September. The recommendations were substantially embodied in the new constitution; the bill was passed in October 1854, sent to London and confirmed by an Order in Council in 1855. Fleming, with his drafting experience as attorney-general, probably played a prominent part in drawing up both the committee's recommendations and the bill.

In May 1854 when the health of the chief justice was noticeably declining, Denison foresaw Pedder's early retirement and wrote to the Colonial Office strongly suggesting the appointment of Fleming as chief justice. Sir George Grey replied that if Horne's legal qualifications were at least equal to Fleming's his experience as a judge should weigh in his favour, but if the lieutenant-governor deemed Fleming the fittest in all respect to be chief justice he would not refuse to sanction the appointment. Pedder had retired before this reply reached Denison who on 7 August appointed Fleming chief justice and wrote to London in glowing terms on Fleming's qualifications and his consistent support of the executive government. In his next dispatch Denison enclosed a letter from Horne protesting against Fleming's appointment and claiming the chief-justiceship in right of seniority. In a covering letter the lieutenant-governor stated that he considered Fleming better qualified than Horne to act as chief justice and asked for confirmation of the appointment. Thomas Gregson and other determined opponents of Denison and Fleming drafted a petition of protest against Fleming's appointment but it was rejected by the Legislative Council. On 2 January 1855 the secretary of state confirmed Fleming's appointment.

Fleming was knighted in 1856. In his fifteen years as chief justice the most important litigation to come before the Supreme Court was probably the well-known constitutional case of Hampton v. Fenton. In an elaborate judgment, Fleming held for the plaintiff and on an appeal to the Privy Council his judgment was upheld. When Fleming retired in 1870 members of the Bar presented him with an illuminated address testifying to his ability, care, courtesy and constant impartiality. Similar expressions of esteem were made in the Executive Council, a public meeting at Launceston and the press. His pension of £1000 was two-thirds of his salary as chief justice.

Fleming went to England but returned to Tasmania as acting chief justice in the absence of his successor, Sir Francis Smith, in 1872-74. For a few months he acted as deputy-governor and then returned to England where he became a magistrate for Surrey. He died near Reigate on 21 October 1884. In Hobart on 20 March 1852 he had married Elizabeth Oke, daughter of Charles Buckland; they had two sons. After she died he married on 1 August 1872 Fanny Maria, daughter of William Seccombe, who survived him.