From all the circumstances, then, it is clear that Judge Willis, though he was in some sense a victim of Executive intolerance in Upper Canada, was himself largely to blame for his downfall, to which he contributed by his want of caution and calm good sense. But many of the circumstances detailed in the present chapter were unknown to the bulk of the Canadian people, by whom he was regarded as a martyr to his upright and liberal principles. His amoval produced a wider excitement than any event since Gourlay's time. It tended greatly to embitter public opinion, and was unquestionably a strong factor in producing the discontent which ultimately found expression in open rebellion. For this reason it has been thought desirable to go somewhat minutely into details which are in themselves fraught with instruction, and as to which the people of Canada, even at the present day, are very inadequately informed.
Mr. Willis felt his defeat very keenly, more especially as he had confidently looked forward to a successful termination of his appeal. At his instigation the subject was brought before the attention of the House of Commons by Lord Milton, on Tuesday, the 11th day of May, 1830.[115]Sir George's Murray's explanation, which involved a narrative of the circumstances in detail, proved satisfactory to the House, and the matter was allowed to drop. But the amoved Judge was fated to have greater reasons still for deploring that he had ever taken up his abode in Canada, as his residence there led to the rupture of his family ties and the total wreck of his domestic happiness. It will be remembered that Lady Mary and her child, together with Miss Willis, had remained at York. Upon learning the decision of the Privy Council in his case, Mr. Willis wrote to his wife and sister, requesting them to dispose of his house there, and to return home as speedily as possible. During the long interval which had elapsed since the ex-Judge's departure for England, the two ladies had been left to amuse themselves as best they could in the little capital. They occasionally went into society, and received a certain amount of attention from that portion of it which had been favourable to Judge Willis, as well as from some of the military officers stationed there. Among others whose acquaintance they formed was a certain Lieutenant Bernard, an officer of the 68th Light Infantry, whose regiment was then in Canada. He occasionally rode out with Miss Willis, who was an accomplished equestrienne, but he did not appear to be on specially intimate terms with Lady Mary.
1829.
On the 16th of May, 1829, Lady Mary set out for England by way of Montreal, Miss Willis remaining behind for a week to make a final disposition of the house. On reaching Kingston, Lady Mary was met by Lieutenant Bernard, who accompanied her to Montreal, whence the pair several months afterwards fled together to England, Lady Mary leaving her child behind her in the care of one of her maids. Mr. Willis brought an action against Bernard, who had by that time succeeded to a Captaincy. The case was tried in the Court of Common Pleas at Westminster on Thursday, the 9th of February, 1832, when the plaintiff recovered £1000 by way of damages. A report of the proceedings will be found inThe Timesof the following day.[116]
1832.
It may be of interest to Canadian readers to learn that Mr. Willis was some years afterwards appointed to a seat on the bench of the Supreme Court of New South Wales. On the 8th of February, 1841, he was under a local statute appointed resident Judge for the District of Port Philip. While officiating in that capacity he came into conflictwith Sir George Gipps, Governor of the Colony, and the Executive Council, by whom he was once more "amoved" from office. The order of amotion, which was made on the 17th of June, 1843, was however reversed by the Imperial Privy Council for irregularity. The Lords of the Judicial Committee, before whom the case was heard in June and July, 1846, reported that in their opinion the Governor-in-Council had power in law to amove Mr. Willis, and that the facts were sufficient to justify his amoval, but that an opportunity ought to have been afforded him of being previously heard. The requisite notice not having been given, the omission was held to vacate the order of amotion, and judgment was rendered accordingly.[117]
FOOTNOTES:[96]See his "Narrative of Occurrences in Upper Canada," written from Bath to the Secretary of State for the Colonial Department, dated 5th December, 1828, and included in pp. 273-288 of the blue book on the subject issued by the Imperial Government in 1829.[97]There is a covert irony in the portion of Judge Willis'sNarrativewhich refers to this subject. "I wished to think," he writes, "and from the attention he seemed to pay to business I actually worked myself up into the belief, which I frequently expressed, that Mr. Justice Sherwood was ahard-headedsensible man; but I became convinced that, though right in the former conjecture, yet so far as legal knowledge or abilities were concerned, I was mistaken in the latter part of my conclusion." The italics are Judge Willis's own.[98]See Judge Willis'sNarrative, ubi supra.[99]So far as mere diction is concerned I have here chiefly followed Collins's own report of this episode, as published in theFreeman, but I have also before me the Attorney-General's account, as well as the more elaborate one of Judge Willis himself, and the three do not materially differ in this respect.[100]Ante, p. 13.[101]TheFreeman, April 17th, 1828.[102]The case, as put by the Judge, was purely hypothetical. "Ifthe Attorney-General has acted so and so, he has neglected his duty." Seeante, p. 174.[103]The announcement ran as follows:—"Preparing for publication.—A View of the Present System of Jurisprudence in Upper Canada; by an English Barrister, now one of His Majesty's Judges in this Province.—Meliora sperans."[104]It was time for some one to undertake the duty of ameliorating the criminal law of Upper Canada, which was that of England as it stood on the 17th of September, 1792, except in so far as it had been altered by subsequent legislation. At the Assizes for the Home District, held at York in the autumn of 1827, within a few weeks after Judge Willis's arrival in the Province, a boy was capitally convicted and sentenced to death for killing a cow.[105]On the Government of the British Colonies.London, 1850.[106]The investigation, according to Judge Willis's own testimony, was entered into partly in consequence of a suggestion which he received on the subject. See the text of his written opinion, embodied in pp. 66-74 of the Imperial blue book issued in 1829, entitled "Papers relating to the Removal of the Honourable John Walpole Willis from the Office of One of His Majesty's Judges of the Court of King's Bench of Upper Canada." It seems probable that the suggestion emanated from Dr. Baldwin.[107]34 Geo. III., c. 2. This statute was framed by the Hon. William Osgoode, first Chief Justice of Upper Canada, a gentleman of great learning, who had been sent out from England for the express purpose of organizing the Courts of the Province.[108]2 Geo. IV., c. 1.[109]See pp. 249-267 of the Imperial Government's blue book on the subject,ubi supra.[110]The notification was dated the 26th of June, whereas the formal document issued by the Council was not signed until the 27th. Mr. Willis attached a good deal of weight to this irregularity, which however was of less importance than might at first sight be supposed. The Council had fully made up their minds on the 26th, and the notification was despatched accordingly, though the order of amotion was not actually ready for signature until the day following.[111]The well-known author, who was then in Canada as representative of the Canada Land Company.[112]"Cabot," inBlackwood's Magazinefor September, 1829.[113]See despatch marked "Separate," from Major-General Sir Peregrine Maitland to Mr. Secretary Huskisson, dated 6th July, 1828.[114]His reply will be matter of surprise to the staid and decorously-attired judges of the present day. "On all ordinary occasions," he wrote, "I usually wore ablack velvet coat and waistcoat. The first time I saw the Chief Justice he had on a black kalimanco or camlet jacket, which I have seen him wear even on the bench. I have met the Lieutenant-Governor frequently walking through the streets with an olive-coloured square-cut velveteen jacket and waistcoat; and a few days before I left York I beheld Mr. Justice Sherwood in a grass-green cloth jacket with white metal buttons. I merely mention these 'extravagancies' to show that my dress was neither improper nor extraordinary."—See theNarrative, ubi supra.[115]See Hansard'sParliamentary Debates, N. S., Vol. xxiv., 551-555.[116]Some further particulars may be found in 8 Bingham, 376; also in 5 C. & P., 342.[117]See the case of John Walpole Willis, Appellant,versusSir George Gipps, Knt., Respondent, 5 Moore's Reports of Privy Council Cases, 379. From anobiter dictumof one of the judges in the case it would appear that the order of amotion from the bench of this Province was finally set aside on technical grounds, owing to the appellant's not having been heard in Canada. After diligent search, I have been unable to find any report of this decision, either in the official reports of the Privy Council or in any of the newspapers or periodicals of the time.
[96]See his "Narrative of Occurrences in Upper Canada," written from Bath to the Secretary of State for the Colonial Department, dated 5th December, 1828, and included in pp. 273-288 of the blue book on the subject issued by the Imperial Government in 1829.[97]There is a covert irony in the portion of Judge Willis'sNarrativewhich refers to this subject. "I wished to think," he writes, "and from the attention he seemed to pay to business I actually worked myself up into the belief, which I frequently expressed, that Mr. Justice Sherwood was ahard-headedsensible man; but I became convinced that, though right in the former conjecture, yet so far as legal knowledge or abilities were concerned, I was mistaken in the latter part of my conclusion." The italics are Judge Willis's own.[98]See Judge Willis'sNarrative, ubi supra.[99]So far as mere diction is concerned I have here chiefly followed Collins's own report of this episode, as published in theFreeman, but I have also before me the Attorney-General's account, as well as the more elaborate one of Judge Willis himself, and the three do not materially differ in this respect.[100]Ante, p. 13.[101]TheFreeman, April 17th, 1828.[102]The case, as put by the Judge, was purely hypothetical. "Ifthe Attorney-General has acted so and so, he has neglected his duty." Seeante, p. 174.[103]The announcement ran as follows:—"Preparing for publication.—A View of the Present System of Jurisprudence in Upper Canada; by an English Barrister, now one of His Majesty's Judges in this Province.—Meliora sperans."[104]It was time for some one to undertake the duty of ameliorating the criminal law of Upper Canada, which was that of England as it stood on the 17th of September, 1792, except in so far as it had been altered by subsequent legislation. At the Assizes for the Home District, held at York in the autumn of 1827, within a few weeks after Judge Willis's arrival in the Province, a boy was capitally convicted and sentenced to death for killing a cow.[105]On the Government of the British Colonies.London, 1850.[106]The investigation, according to Judge Willis's own testimony, was entered into partly in consequence of a suggestion which he received on the subject. See the text of his written opinion, embodied in pp. 66-74 of the Imperial blue book issued in 1829, entitled "Papers relating to the Removal of the Honourable John Walpole Willis from the Office of One of His Majesty's Judges of the Court of King's Bench of Upper Canada." It seems probable that the suggestion emanated from Dr. Baldwin.[107]34 Geo. III., c. 2. This statute was framed by the Hon. William Osgoode, first Chief Justice of Upper Canada, a gentleman of great learning, who had been sent out from England for the express purpose of organizing the Courts of the Province.[108]2 Geo. IV., c. 1.[109]See pp. 249-267 of the Imperial Government's blue book on the subject,ubi supra.[110]The notification was dated the 26th of June, whereas the formal document issued by the Council was not signed until the 27th. Mr. Willis attached a good deal of weight to this irregularity, which however was of less importance than might at first sight be supposed. The Council had fully made up their minds on the 26th, and the notification was despatched accordingly, though the order of amotion was not actually ready for signature until the day following.[111]The well-known author, who was then in Canada as representative of the Canada Land Company.[112]"Cabot," inBlackwood's Magazinefor September, 1829.[113]See despatch marked "Separate," from Major-General Sir Peregrine Maitland to Mr. Secretary Huskisson, dated 6th July, 1828.[114]His reply will be matter of surprise to the staid and decorously-attired judges of the present day. "On all ordinary occasions," he wrote, "I usually wore ablack velvet coat and waistcoat. The first time I saw the Chief Justice he had on a black kalimanco or camlet jacket, which I have seen him wear even on the bench. I have met the Lieutenant-Governor frequently walking through the streets with an olive-coloured square-cut velveteen jacket and waistcoat; and a few days before I left York I beheld Mr. Justice Sherwood in a grass-green cloth jacket with white metal buttons. I merely mention these 'extravagancies' to show that my dress was neither improper nor extraordinary."—See theNarrative, ubi supra.[115]See Hansard'sParliamentary Debates, N. S., Vol. xxiv., 551-555.[116]Some further particulars may be found in 8 Bingham, 376; also in 5 C. & P., 342.[117]See the case of John Walpole Willis, Appellant,versusSir George Gipps, Knt., Respondent, 5 Moore's Reports of Privy Council Cases, 379. From anobiter dictumof one of the judges in the case it would appear that the order of amotion from the bench of this Province was finally set aside on technical grounds, owing to the appellant's not having been heard in Canada. After diligent search, I have been unable to find any report of this decision, either in the official reports of the Privy Council or in any of the newspapers or periodicals of the time.
[96]See his "Narrative of Occurrences in Upper Canada," written from Bath to the Secretary of State for the Colonial Department, dated 5th December, 1828, and included in pp. 273-288 of the blue book on the subject issued by the Imperial Government in 1829.
[97]There is a covert irony in the portion of Judge Willis'sNarrativewhich refers to this subject. "I wished to think," he writes, "and from the attention he seemed to pay to business I actually worked myself up into the belief, which I frequently expressed, that Mr. Justice Sherwood was ahard-headedsensible man; but I became convinced that, though right in the former conjecture, yet so far as legal knowledge or abilities were concerned, I was mistaken in the latter part of my conclusion." The italics are Judge Willis's own.
[98]See Judge Willis'sNarrative, ubi supra.
[99]So far as mere diction is concerned I have here chiefly followed Collins's own report of this episode, as published in theFreeman, but I have also before me the Attorney-General's account, as well as the more elaborate one of Judge Willis himself, and the three do not materially differ in this respect.
[100]Ante, p. 13.
[101]TheFreeman, April 17th, 1828.
[102]The case, as put by the Judge, was purely hypothetical. "Ifthe Attorney-General has acted so and so, he has neglected his duty." Seeante, p. 174.
[103]The announcement ran as follows:—"Preparing for publication.—A View of the Present System of Jurisprudence in Upper Canada; by an English Barrister, now one of His Majesty's Judges in this Province.—Meliora sperans."
[104]It was time for some one to undertake the duty of ameliorating the criminal law of Upper Canada, which was that of England as it stood on the 17th of September, 1792, except in so far as it had been altered by subsequent legislation. At the Assizes for the Home District, held at York in the autumn of 1827, within a few weeks after Judge Willis's arrival in the Province, a boy was capitally convicted and sentenced to death for killing a cow.
[105]On the Government of the British Colonies.London, 1850.
[106]The investigation, according to Judge Willis's own testimony, was entered into partly in consequence of a suggestion which he received on the subject. See the text of his written opinion, embodied in pp. 66-74 of the Imperial blue book issued in 1829, entitled "Papers relating to the Removal of the Honourable John Walpole Willis from the Office of One of His Majesty's Judges of the Court of King's Bench of Upper Canada." It seems probable that the suggestion emanated from Dr. Baldwin.
[107]34 Geo. III., c. 2. This statute was framed by the Hon. William Osgoode, first Chief Justice of Upper Canada, a gentleman of great learning, who had been sent out from England for the express purpose of organizing the Courts of the Province.
[108]2 Geo. IV., c. 1.
[109]See pp. 249-267 of the Imperial Government's blue book on the subject,ubi supra.
[110]The notification was dated the 26th of June, whereas the formal document issued by the Council was not signed until the 27th. Mr. Willis attached a good deal of weight to this irregularity, which however was of less importance than might at first sight be supposed. The Council had fully made up their minds on the 26th, and the notification was despatched accordingly, though the order of amotion was not actually ready for signature until the day following.
[111]The well-known author, who was then in Canada as representative of the Canada Land Company.
[112]"Cabot," inBlackwood's Magazinefor September, 1829.
[113]See despatch marked "Separate," from Major-General Sir Peregrine Maitland to Mr. Secretary Huskisson, dated 6th July, 1828.
[114]His reply will be matter of surprise to the staid and decorously-attired judges of the present day. "On all ordinary occasions," he wrote, "I usually wore ablack velvet coat and waistcoat. The first time I saw the Chief Justice he had on a black kalimanco or camlet jacket, which I have seen him wear even on the bench. I have met the Lieutenant-Governor frequently walking through the streets with an olive-coloured square-cut velveteen jacket and waistcoat; and a few days before I left York I beheld Mr. Justice Sherwood in a grass-green cloth jacket with white metal buttons. I merely mention these 'extravagancies' to show that my dress was neither improper nor extraordinary."—See theNarrative, ubi supra.
[115]See Hansard'sParliamentary Debates, N. S., Vol. xxiv., 551-555.
[116]Some further particulars may be found in 8 Bingham, 376; also in 5 C. & P., 342.
[117]See the case of John Walpole Willis, Appellant,versusSir George Gipps, Knt., Respondent, 5 Moore's Reports of Privy Council Cases, 379. From anobiter dictumof one of the judges in the case it would appear that the order of amotion from the bench of this Province was finally set aside on technical grounds, owing to the appellant's not having been heard in Canada. After diligent search, I have been unable to find any report of this decision, either in the official reports of the Privy Council or in any of the newspapers or periodicals of the time.
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letteri
In the foregoing pages mention has several times been made of Francis Collins, editor, proprietor and publisher ofThe Canadian Freeman, a Radical weekly newspaper issued at York. Mr. Collins was an enthusiastic young Irish Roman Catholic, who had immigrated to Canada a short time before the excitement arising out of the Gourlay persecution reached its height, and when he himself was barely twenty years of age. He was a printer by trade, and for some time after his arrival worked as a compositor in the office ofThe Upper Canada Gazette, published at York by the King's Printer, Dr. Robert Charles Horne. Finding that he possessed much intelligence and a fair education, his employer deputed him to report the debates in the Assembly during the sessions of Parliament. In 1821 he reported certain proceedings which the Government were annoyed at seeing in print, more especially as the version given was not strictly accurate. For this offence Dr. Horne was summoned to the bar of the House, where he sought to evade responsibility by pleading that the debates had not been reported by himself, but by Francis Collins. The Doctor further offered a humble apology, and was glad to escape with a sharp reprimand, accompanied by a caution from the Speaker that he would thereafter be held responsible for the reports in theGazette.[118]
Within a short time after receiving this admonition Dr. Horne ceased to be King's Printer, whereby the post became vacant. As Collins was familiar with the nature of the work, and was naturally desirous of bettering his condition, he applied for the appointment. The office was at the disposal of the Lieutenant-Governor, and was held entirely at his pleasure. Collins was curtly checked for his presumption by a leading official, who informed him that the office would be conferred upon "no one but a gentleman." It would be interesting to know whence the official who was guilty of this wanton insult had derived his ideas of courtesy and good breeding. If his statement were to be credited, any application on his part for the post of King's Printer would most assuredly have been made in vain. The appointment was given to Mr. Charles Fothergill, who belonged to a good Yorkshire family, and was therefore fully entitled to rank as a gentleman.[119]
Collins was excusably indignant at the gross insult which had been hurled at him. He considered himself as at least the social equal of any member of the Government, for he claimed descent from the old Irish kings, and on one or two occasions when more than ordinarily exhilarated he had even been known to refer to his ancestor, Brian Boru. Yet, for all this mendacious and vainglorious boasting, Collins was a man of unquestionable ability, and when fully aroused could write a paragraph well calculated to make the ears of his enemies to tingle. His nationality was clearly indicated by his personal appearance, his features being rough-hewn and unmistakably Celtic; while his red hair and beard, usually not very well cared for, gave him an aspect of uncouth wildness. Up to this time he had not taken any very conspicuous part in politics since his arrival in Canada; but henceforward the Executive hadno more bitter or sleepless foe. He continued to report the proceedings in Parliament, and kept his eyes ever open for an opportunity to strike the Government with effect. In 1825 he succeeded in establishing theFreeman, which was thenceforth to some extent a rival of Mackenzie'sAdvocate. It was from the first conducted with great energy, and the editorials, which were often set up without being committed to paper, displayed exceptional vigour, but they were frequently disfigured by a coarseness and bad taste equal to anything of Mackenzie's production. For some time the better class of Liberals fought shy of the enterprise, but the editor steadily forced his way into general recognition.
TheFreemanwas permitted to continue its course unchecked for nearly three years. During that time it followed up the shortcomings of the Executive with ceaseless vigilance. To Sir Peregrine Maitland and Attorney-General Robinson it was a veritable thorn in the flesh. There was abundant occasion for criticism, and it was seldom, if ever, that Collins resorted to pure invention for the purpose of attacking the innumerable abuses of the time. There was always a sufficient substratum of truth in his accusations to render it inexpedient to prosecute him for libel. The punishment of what was false would have involved the public exposure of what was true. The official party realized the force of the laureate's dictum, not then propounded, that
"A lie that is all a lie may be met with and fought outright,
But a lie that is part of a truth is a harder matter to fight."
1828.
They of course did not present the matter in this aspect to the world at large. On the contrary, their organs claimed for them a spirit of generous and Christian forbearance. But this could not go on for ever. Collins continued to pour in his chain-shot from week to week with never-failing pertinacity, and with seeming impunity from the law. The Executive in the first place tried to check his career by crippling him financially. The Assembly had for some years previously been accustomed to vote him an annual sum by way of remuneration for reporting their proceedings. The paying over of this sum, however, was a matter entirely within the control of the Lieutenant-Governor. As it was known that Collins was poor, and that his resources were sometimes taxed to the uttermost toenable him to bring out his paper, it was hoped that, by withholding payment for his services as reporter to the Assembly, he might be compelled to suspend publication. He was accordingly informed, when he applied for his money in the early spring of 1828, that the funds were not forthcoming. The sum in question was £118 10s., and was a matter of serious importance to him; but he well understood the object of the Executive, and spurred himself up to fresh effort. His paper appeared with the most provoking regularity, and its tone was, if possible, intensified by the withholding of the sum due to its editor. He told the story to the public, his account being garnished with profuse comments in his bitterest vein. The Executive found that they had miscalculated his resources, and that his press was conducted with renewed vigour. It was finally resolved that a dead-set should be made upon him, and that he should be overwhelmed by a shower of contemporaneous indictments. On Thursday, the 10th of April, 1828, as mentioned in the preceding chapter,[120]two bills of indictment for libel were found against him. One of these was for having, in his paper, charged the Lieutenant-Governor with partiality, injustice and fraud, in not paying over the money voted by the Assembly. The other was on the information of the Solicitor-General, Henry John Boulton, for animadversions on his conduct in connection with the duel, in 1817, between Samuel Peters Jarvis and John Ridout.[121]Upon the strength of these indictments Collins was forthwith arrested, and compelled to appear and give the required bail. On the following morning two other bills were found, upon which he also gave bail. It was at this time that he made his extraordinary attack upon the Attorney-General, before Justice Willis, as already narrated at length.[122]It will be remembered that he was instructed by the Judge to go before the Grand Jury and prefer his complaints. These instructions he followed without a moment's unnecessary delay. He appeared before the Grand Jury, and charged H. J. Boulton and J. E. Small with being accessary to murder in the killing of young Ridout. He next laid a charge of rioting against S. P. Jarvis and six other persons who had figured as defendants in the action brought by Mackenzie. The Grand Jury speedily returned a true bill against Boulton and Small. Both those gentlemen were then in Court with their gowns on. They were immediately put under arrest, and they so remained until late in the afternoon, when Judge Willis, upon the application of Mr. Macaulay, admitted them to bail. As Jarvis had been tried for the offence and acquitted, shortly after the duel in 1817, the Grand Jury now returned "No bill" as to him. On the following Monday a true bill was returned by the Grand Jury against the seven persons charged with riot. They were promptly arrested and held to bail.
Collins, having no faith in Attorney-General Robinson's integrity, was very unwilling that the prosecution of these cases should be conducted by him. Boulton was not only the Attorney-General's colleague as a law officer of the Crown, but was his warm personal friend, as well as a connexion by marriage. Boulton, in fact, was a profound admirer and faintumbraof the Attorney-General, in whose professional sunshine he basked, and at whose feet he may in an intellectual sense be said to have grovelled. Even the most Spartan of Crown prosecutors could hardly be expected to do his utmost to secure a conviction under such circumstances; and Attorney-General Robinson had nothing of the Spartan in his composition where the interests of his friends were concerned. Collins accordingly applied to Robert Baldwin to conduct the prosecution for murder. But the prosecution of criminal cases was not then open to the bar as a matter of course, and without the consent of the Crown. Mr. Baldwin applied to the Court for the necessary permission, which was granted with the Attorney-General's consent. The trial was proceeded with before Justice Willis at the opening of the Court on the morning of Monday, the 14th. The defendants, upon being arraigned, pleaded "Not guilty." The proceedings extended over two days, during which the same evidence was given that had been adduced at the trial in 1817. All the horrible details of the duel were revived for the edification of a crowded Court-room. Many of the spectators, as well as the Judge himself, were affected to tears. The custom of society was once more successfully pleaded in extenuation of a cruel and dastardly murder. As the chief offender had himself escaped scot-free, however, it would have seemed anomalous to punish the accessaries. The charge from the bench was eloquent and judicial, and the jury were absent from the box only ten minutes, when they returned into Court with a verdict of acquittal.
The trial of the type-rioters next required consideration. Collins's counsel moved for leave to the prosecutor to conduct this case also by private counsel, but to this the Attorney-General firmly refused to consent. It was urged that one of the accused was his nephew, and that two others had been clerks in his office at the time of the outrage. No matter; he was determined to withstand any further interference with Crown prosecutions on the part of the bar. There was no telling, he remarked, where such interference would end. There had already been too much of it. He was about to proceed with the prosecution, when Mr. Rolph arose on behalf of Collins, and expressed a wish that, as the painful investigation of the murder case had been finished, the prosecutions for libel might be discontinued. Judge Willis warmly seconded the proposal, and further suggested that the prosecution of the type-rioters might also be dropped. The type-rioters, however, were ready and waiting for their trial, and, through their counsel, objected to any abandonment so far as they were concerned. It was urged on their part that they had never wished to avoid prosecution, but had rather courted it; that they would accept of no compromise of a proceeding which had been maliciously and vexatiously instituted, not by the person injured, but by one who, being brought into Court for libel, had been received as a sort of public prosecutor, and allowed to harass them by raking into old transactions which had long since been investigated and atoned for. They insisted upon the matter being there and then finally disposed of, so that it might no longer be in the power of any malicious person wholly unconnected with the case to prosecute them at his pleasure.
The trial was then proceeded with. The persons charged were of course found guilty. Judge Willis was very lenient, and sentenced them to a nominal fine of five shillings each, expressly stating as a reason for this slight punishment that more than ample recompense had already been obtained in the civil action.[123]
With respect to the indictments against Collins, the Judge's appeal to the Attorney-General was not altogether without efficacy, notwithstanding the ill blood between them. The fact is that the latter was glad enough of any excuse for abandoning the two prosecutions instituted by Boulton and Jarvis, feeling well assured that there was no likelihood of securing a conviction in either case. He could subserve his own and his friends' interests, and at the same time assume the appearance of deferring to the suggestion from the bench. The consent of the prosecutors having been obtained, he therefore announced in open Court that he would proceed no further upon those indictments. He added, however, that there were further indictments against Collins which had emanated from the Grand Jury, and that he could not with proper deference to them at once relinquish proceedings therein. "But I have no objections to state," said the Attorney-General, "that I will forbear any further action during the present Assizes, and that in proceeding or not hereafter, I shall be governed in a great measure by the sense which the defendant shall show of his duty and obligations as the conductor of a public newspaper." Bail was accordingly furnished by Collins on one of the presentments. The other was tacitly allowed to lapse; and there, for the time, the matter ended.
The editor of theFreemancertainly gave the Attorney-General no excuse for leaving him unmolested. In each successive issue of his paper he lashed the whole race of officials, to some of whom he applied the most opprobrious epithets. The Government organs pursued a similar course on their side, and characterized Collins and his friends in language too gross for quotation. The Attorney-General probably repented that he had not proceeded on at least one of the indictments during the late Assizes, and resolved that another opportunity should not pass unimproved. The autumn Assizes opened during the second week in October, when he attempted to press one of the old charges against Collins. The defendant appealed to Judge Sherwood, who occupied the bench, representing that his counsel was not in Court, and that he had never been arraigned. The Attorney-General replied that the absence of the defendant's counsel was not the fault of the Crown, and that he had been arraigned at the spring Assizes. The latter statement wasdenied by the defendant, and upon referring to the Clerk of Assize it appeared that there had been no arraignment. Next day the Attorney-General again attempted to force on the trial, but as it was clear that the defendant had not been arraigned the latter now claimed the right to traverse. As this right was indisputable it was conceded by the Court, the result being that the defendant was entitled to have the trial held over until the next sittings, which would not take place until the following spring. The Attorney-General, however, was entitled to demand that the defendant should find security, and promptly urged his demand. Collins knew that were he to find the required security it would embarrass him in the conduct of his paper, and stated that he would prefer to be tried at once rather than adopt such an alternative. He was accordingly tried, and, though the prosecution was pressed against him with all the vigour at the Attorney-General's command, he was acquitted by the jury.
But the Attorney-General was not the man to allow his prey to escape him while any chance remained of securing a conviction. A fresh indictment was laid against him for a personal libel upon the Attorney-General himself. Collins, in reporting the trial which had just resulted in his acquittal, had accused the Attorney-General of "open palpable falsehood," and "native malignancy," and had referred to Judge Hagerman as "our old customer." This report had been published at full length in theFreeman, and it was the ground of the prosecution now instituted. The defendant laboured under the same compulsion with regard to security as before, and elected to stand his trial at once, which was precisely what the Attorney-General desired. The indictment, which may still be seen among the records at Osgoode Hall, was a truly formidable instrument, and set out the offence with great prolixity. The trial took place on Saturday, the 25th, before Mr. Justice Sherwood, who, in charging the jury, inveighed against the defendant with nearly as great vehemence as did the Crown prosecutor, stigmatizing him as "a wholesale retailer of calumny." He pronounced theFreeman'sreport to be "a gross and scandalous libel."[124]It was plainly evident that Mr. Sherwood's mind was not equable, and that he was influenced byconsiderations not properly before him. The fact that his son Henry, and his brother-in-law, H. J. Boulton, had respectively been prosecuted for riot and murder at Collins's instigation was too clearly held in remembrance, insomuch that every point was strained to the utmost against the defendant. Judge Sherwood, however, was absent from the bench when the jury returned into Court with their verdict, his place being taken by Judge Hagerman, who had many times been subjected to the arrows of Collins's satire, and who was referred to with bantering contumely in the very report which formed the subject of the present prosecution. The jury, after deliberating about five hours, brought in a verdict of "Guilty of a libel on the Attorney-General." The Clerk recorded a general verdict of "Guilty," which was read to the jury. The defendant's counsel objected to the recording of the verdict in this form, inasmuch as the jury had found his client guilty of libel on the Attorney-General only. A brief argument on the subject ensued, whereupon the Judge charged the jury to the effect that such a verdict as they had found could not be received. He informed them that if they found the defendant guilty of any part of the alleged libel, they ought to return a general verdict of "Guilty;" but that they might, if they thought proper, suggest to the Court on what particular part of the publication their verdict was founded, in which case the Court would confine the punishment to that part only. The jury thereupon retired a second time, but soon returned with a general verdict of "Guilty." On being asked by the Judge whether they adhered to their former opinion as to the libellous part of the publication, they answered in the affirmative.
The sentence of the Court was not pronounced until sufficient time had elapsed to admit of a conference on the subject between Justices Sherwood and Hagerman. That such a conference really took place is clear enough from a letter of Judge Sherwood himself, to be presently referred to. The sentence, when it came, created much surprise, not only in the bosom of the individual who was directly concerned, but among the public at large. It condemned the defendant to pay a fine of fifty pounds, to be imprisoned for twelve calendar months, to find securities for his good behaviour for three years after his liberation, himself in four hundred pounds and two sureties in one hundred poundseach, and to stand committed until all these conditions should be complied with.
Certainly it was no wonder that the little world of upper Canada opened its eyes at such a Star Chamber sentence as this, pronounced in the year of Grace 1828. It seemed as if the whirligig of time had brought back the days of Bartemus Ferguson andThe Niagara Spectator.[125]It was an open question with many persons, even among those who were upon the whole favourable to the measures of the Government, whether the prosecution should have been sustained at all or not. A charge of "native malignancy" was not likely to seriously affect the character or standing of Attorney-General Robinson, who was ready enough to apply much stronger epithets to his enemies. But, however that might be, there could be no sort of doubt that the punishment awarded was wholly disproportionate to the offence, more especially when the defendant's circumstances were considered. If persisted in, the sentence really involved the latter's perpetual imprisonment, for no two men of substance were likely to be found who would feel safe in guaranteeing the good behaviour of such a turbulent spirit as Francis Collins for so long a period as three years. Throughout the whole of this infamous persecution the Attorney-General showed to very little advantage. As previously mentioned, he had showered four indictments upon the defendant within the brief space of two days. Three of these he had withdrawn, and upon the fourth the defendant had been acquitted. He had then gone out of his way to lay a personal information upon a very insignificant pretext. Poor Collins was his enemy, and must not be allowed to characterize his conduct as "native malignancy," whereas the editors of newspapers under the patronage and pay of the Government were permitted to pursue a deliberate system of malicious vilification with impunity. The latter were allowed to publicly malign not only individual members of the Opposition, but to circulate the grossest libels upon the House of Assembly itself. With these offences the Attorney-General did not think fit to meddle. They were committed by his personal and political friends, and, unless common rumour seriously belied him, were not seldom committed at his own instigation. At any rate he maintained the mostamicable relations with the libellers, and allowed no opportunity of serving their material interests to pass unimproved. Such inconsistency forced itself upon public attention. People who up to that time had supported the official party began to ask where this one-sidedness was to end. The Attorney-General had no right, it was said, to reward his friends for doing precisely the same things as those for which he punished and imprisoned his enemies. It was remembered against him how, when disputing with Judge Willis as to the nature of his official duties, he had with scorn repudiated the suggestion that he should proceed in the absence of instructions, even against notorious evil-doers. It was remembered that he had declined to take any official cognizance of so serious an offence against the public peace as the type-riot, which had been committed by his own friends and protégés. Yet he had here gone out of his way to prosecute to his ruin a poor wretch who, certainly not without great provocation, had merely accused him of falsehood and native malignancy. A man who accommodated his conduct to his inclinations in this way might perhaps be much beloved by his friends, but he certainly had no claim to be considered either good or great. The faction, from Dr. Strachan downwards, had for years been holding up John Beverley Robinson to the admiration of Upper Canadians. By many he had been accepted at their valuation. The Selkirk and Gourlay episodes, together with a score of others less noteworthy, had been slurred over. As the worst of these had occurred some years before, they had been partly forgotten by the existing generation. But the remorseless vindictiveness and cruelty displayed throughout the Collins prosecution were patent to everybody. They did much to lower the Attorney-General in popular estimation, and to destroy public confidence in the integrity of the Judges. They gave rise to an uneasy feeling of discontent, and doubtless had their share in bringing about the troubles of 1837-38.
Collins went to jail, where, in spite of great exertions on his behalf, he was compelled to remain for many months. The fine was paid, like the damages in the type-riot case, by public subscription. Appeals from various quarters to the Lieutenant-Governor on the prisoner's behalf were made in vain. The incumbent of that office was no longer Sir Peregrine Maitland, whose torpid and nerveless administration had come to an end some weeks before,[126]when, as previously mentioned, he had taken his departure for Nova Scotia. His successor as Lieutenant-Governor of Upper Canada was Major-General Sir John Colborne, a distinguished officer of the 52nd Regiment, who had done gallant service in the Peninsula, and had fought at Waterloo. He is described by Napier, the historian of the Peninsular War, as having developed "an extraordinary genius for war." After the return of peace he had had some experience in diplomacy, having for some time been placed in charge of the Government in the island of Guernsey. His appointment to the more onerous and responsible post of Lieutenant-Governor of Upper Canada was heralded as the precursor of better times. It was announced that he had come over charged with instructions to reverse the fatuous policy of his predecessor, and to conduct the administration in accordance with the well understood wishes of the people. It seems tolerably certain that some such general directions as these had actually been given, but great latitude was necessarily left to Sir John himself; and, as after events proved, he was ill fitted for the discharge of such duties as had been entrusted to him. He was destined to furnish, in his own person, a sufficient argument against the absurd system pursued by the Home Government of saddling the colonies with military rulers. That Sir John was an excellent soldier goes without saying. It is certain, too, that he was in the main actuated by upright and honourable motives. But he had been "a man of war from his youth," and his early training and long military career had made him stern and unbending. He had no sympathy with the aspirations of a people who were just beginning to grasp the principles of constitutional liberty, and who saw many things in the body politic which called aloud for reform.
It did not take long for the people of Upper Canada to gauge the character of the new Governor, for he had not been a fortnight in the Province before he had practically allied himself with the Compact. Hardly had he assumed the functions of his office ere a petition, signedby a number of influential inhabitants of York and its neighbourhood, was presented to him by a Committee on behalf of Collins. The facts were set out in detail, and his Excellency was asked to exercise the royal clemency by releasing the prisoner from his melancholy situation. Sir John's reply was non-committal, but not wholly discouraging. It conceded the advantages resulting from a free and well-conducted press, but expressed reverence for trial by jury, and referred to the danger of interfering with the verdicts of juries or the opinions of Judges unless their illegality could be clearly demonstrated. It added, however, that if his Excellency; after inquiring into the case, should come to the conclusion that his interposition was called for, a communication to that effect would be made to the person chiefly concerned.
In the face of this reply, it behooved the prisoner and his friends to wait a reasonable time before taking any further steps. Within the next few days a number of facts came to light which certainly went to show that there were at least good grounds for a new trial. It appeared that John Hayden, one of the jurymen, had been ignorant of the true meaning of the word "malignancy," and had sent out to the Court for Johnson's Dictionary, in order to arrive at a true definition. This indulgence was refused by the Court, and Hayden was constrained to accept the definition of another juror, whereby he was led to believe that the word in question has a much more serious significance than really attaches to it. By this means he had been induced to give his voice for the conviction of the defendant. Two other jurymen,[127]who were servile tools of the Attorney-General, had been actuated by undue prejudice, insomuch that they had expressed a strong pre-determination to convict the defendant. Then, the conduct of Mr. Hagerman, in sitting as a Judge in a case wherein he was personally concerned—it will be remembered that he had been derisively referred to in the report which formed the subject of the indictment—was an infringement of decency, to say nothing of its being a perversion of the letter and spirit of the law. He had also conferred with the Judge by whom the sentence was pronouncedas to the measure of punishment to be awarded. But he had not only sat in judgment in his own cause: he had refused to record the finding of the jury, whom he had misled and coerced into bringing in a verdict contrary to what they really intended. Judge Sherwood's conduct had been little better. He had delivered a charge to the jury which practically left them no alternative but to convict, unless they altogether disregarded his counsels. John Carey, editor of the YorkObserver, who was present on the occasion, testified that the Judge's charge appeared to him to outrage law and common sense.[128]Then, the sentence itself was so grossly out of proportion to the offence as to shock all ideas of justice, and to form a standing menace against the liberty of the press in Upper Canada. Yet Judge Sherwood, in pronouncing it, had expressly stated that it should be light, in consequence of its being awarded for a first conviction. It would be curious to know what punishment he would have awarded if the defendant had been previously convicted on a similar charge.
All these circumstances went far to prove that the defendant had met with considerably more or less than justice. And there were other facts which had an ugly look. The defendant, as already mentioned, was a Roman Catholic; yet, out of a large and respectable population professing the same religious faith, not one was to be found on the panel, although at the Quarter Sessions, held a few days later, the number of Roman Catholics summoned to serve on juries was exceptionally large. The Sheriff who empanelled the jury was a political enemy of the accused. So was each individual member of the Grand Jury who found the true bill against him. So were a large majority of the petty jury by whom he was tried. So was the Attorney-General who prosecuted him. So were the two Judges who presided at the trial. Taken in connection with the specific facts mentioned in the preceding paragraph, these matters gave rise to many unpleasant conjectures, and it was no wonder that the public voice exclaimed against the verdict as an unrighteous one. It was no wonder that public meetings were held in some of the rural districts to protest against what was almost universally pronounced to be a tyrannical abuse of the process of the Courts. It was no wonder that hisses and groanswere sometimes heard from quiet nooks and corners when the Attorney-General passed along the streets of York. And it was no wonder that, coming, as it did, on the heels of other trials that differed with it only in degree, the case of Francis Collins caused many theretofore loyal subjects to ask themselves whether their loyalty demanded that they should forever continue to bend their necks to the yoke of the oppressor. What was Collins's case to-day might possibly be theirs or their sons' on the morrow.
On the 26th of November Collins sent in to the Lieutenant-Governor a pathetically-worded petition, in which the desolate condition of his young and helpless family was alluded to in brief but moving terms. It set out that, in consequence of his imprisonment, the business whereby he had supported his family was all but ruined, as its success depended solely on his personal exertions. Finally, he prayed to be restored to his liberty. Accompanying the petition were affidavits setting forth the admitted ignorance of one of the jurymen, and the pre-determination of the other two to convict. But the prisoner knocked at the gates of Sir John Colborne's heart in vain. The Lieutenant-Governor was by this time as completely hand and glove with the official party as his predecessor had ever been. Dr. Strachan and John Beverley Robinson managed him with great skill, and, by dint of much seeming deference, had him under complete control. Without being in the least aware of it, he was clay in the hands of the potter, who moulded him at will. As well might poor Collins have appealed for mercy to a half-famished tiger of the jungle as to these two Provincial representatives of law and gospel. His memorial, dated "York Gaol, November 26th, 1829," was not replied to until more than three weeks had elapsed, and when the answer came its contents indicated perfect callousness to the prisoner's unhappy condition. He was curtly informed that the Lieutenant-Governor could not think it right to comply with the petition, but that on the expiration of the specified term of imprisonment, any application which he might desire to make would be taken into consideration.
From this time forward the prisoner seems to have resigned himself to his fate, although his friends did not relax their exertions on his behalf. It seemed useless to apply for a new trial, as the applicationwould have to be made to either Sherwood or Hagerman, from neither of whom could he hope to obtain justice. TheFreemancontinued to make its appearance, although its publication was necessarily carried on under great disadvantages. The editor's spirit was by no means broken, and he sent forth from his place of confinement a succession of editorials as bitterly vigorous as any previous efforts of his pen. He also wrote a series of open letters addressed to the Attorney-General, in which that official's career, from his infancy onwards, was reviewed with caustic bitterness.[129]These letters were published in successive numbers of theFreeman, and must be presumed to have been a source of great annoyance to the gentleman to whom they were directed. Though many of the statements therein were perverse and wilful distortions of facts, there was a large element of truth, and it would not have been easy to expose the falsehood without admitting much that could not be denied. The Attorney-General contemplated another prosecution, but thought better of it—not, it is to be presumed, from any want of vindictiveness, but because he felt that there was a limit to the public endurance, and that that limit had pretty nearly been reached.