The Story of the Upper Canadian Rebellion, Volume 1

by John Charles Dent

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 the Freeman certainly 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 was denied 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 the Freeman, 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 the Freeman's report 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 by considerations 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 pounds each, 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 and The 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 most amicable 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, signed by 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 pronounced as 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 York Observer, 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 groans were 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.