THE CASE OF FRANCIS COLLINS.
In the foregoing pages mention has several times been made of Francis
Collins, editor, proprietor and publisher of _The 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 of _The 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
the _Gazette_.[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 had no 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 the _Freeman_, which was thenceforth to some extent a
rival of Mackenzie's _Advocate_. 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.
The _Freeman_ was 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."
[Sidenote: 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 to enable 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 L118 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
faint _umbra_ of 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 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 proteges. 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.
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 application
would have to be made to either Sherwood or Hagerman, from neither of
whom could he hope to obtain justice. The _Freeman_ continued 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 the _Freeman_, 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.
[Sidenote: 1829.]
In January, 1829, the Collins case was taken into consideration by the
Assembly. A Committee was appointed, and a rigid inquiry instituted into
some of the most interesting features. Attorney-General Robinson was
examined at considerable length. Judges Sherwood and Hagerman were
summoned before the Committee, but both of them declined to answer any
questions. A good many important facts were elicited, upon the strength
of which an Address to his Excellency was passed, recapitulating the
circumstances, and praying for a remission of the sentence. The reply
was of the same inexorable character as that previously made to
Collins's own petition. "It is my anxious wish," was the response of the
Lieutenant-Governor, "to render service to the Province, by concurring
with the Legislature in everything that can promote its peace,
prosperity and happiness; and I regret exceedingly that the House of
Assembly should have made an application to me which the obligation I am
under to support the laws, and my duty to society, forbid me, I think,
to comply with." For the information of the House, his Excellency
forwarded a copy of a letter addressed by Justice Sherwood to the
Governor's Secretary, embodying certain reasons for the judgment of the
Court in the case. The Judge, it will be remembered, refused to assign
any such reasons when questioned on the subject by the Committee of the
House of Assembly. As to his right to so refuse there can hardly be much
difference of opinion, but he would have been more consistent if he had
also refused when applied to by the Lieutenant-Governor. After admitting
the right to publish fair and candid opinions on the Government and
constitution, the Judge declared that if a publisher "steps aside from
the high road of decency and peaceable deportment, and adopts a course
of public calumny and open abuse against the officers of Government
generally, or particularly against the principal law officer of the
Crown, in the legal discharge of his duty in the King's Courts, as the
defendant did," then it was the Judge's conviction that the publisher so
offending should be "punished to that extent which, in human
probability, would prevent a recurrence of the offence." And yet this
same Judge, in pronouncing sentence, had expressly declared that the
sentence should be a light one, as it was the defendant's first offence.
The conclusion of the letter showed plainly enough that a conference had
taken place between Justices Sherwood and Hagerman before the imposition
of the penalty. It proved, indeed, that the sentence was to be
considered as the joint sentence of the two Judges. "Taking all the
circumstances of the case into consideration," it ran, "Mr. Justice
Hagerman and myself deemed the sentence which we passed on the defendant
both proper and necessary for the public good, and what the case itself
required."
Two or three further appeals were made to the Lieutenant-Governor on the
prisoner's behalf, all of which proved ineffectual. The matter was
really in the hands of the Attorney-General himself, who was inexorable,
and would be satisfied with nothing short of the fullest expiation. The
Assembly meanwhile did not relax its efforts to obtain a commutation of
the sentence. On the 12th of March an address to the King was passed by
that body, whereby His Majesty was entreated "to extend to Francis
Collins the royal clemency, by remitting the residue of his punishment."
Not much was hoped for from this proceeding, as it was felt that the
whole influence of the Executive would be put forward against it. The
prisoner himself made up his mind to accept the inevitable, and to serve
out at least the full term of the sentence imposed. He continued to
supply editorial articles for his paper, couched in a strain which
seemed to indicate his superiority to circumstances. But his buoyant
spirit was measurably tamed by his long imprisonment, and it was
remarked that he was never again quite the same man as before. Contrary
to his anticipations, the address of the Assembly finally proved
effective, and he was permitted to walk forth from the jail a free man.
His paper came forth from week to week, but its tone was evidently
modified and subdued. Something of the old spirit occasionally flashed
forth, but fitfully and transitorily only, like the flicker of a lamp
before its extinction. It was clear that the editor had not forgotten
the indignity and mental suffering he had undergone, and throughout the
remaining years of his life he always dwelt more or less in the shadow
of the cold and solitary cell. The records of the jurisprudence of
civilized countries contain few modern instances of the exaction of so
severe a penalty for so insignificant an offence.
The narrative has no further concern with Francis Collins, except to
record that he continued to edit and publish the _Freeman_ down to 1834,
when he fell a victim to the cholera invasion by which the Provincial
capital was ravaged during that year. He died on the 2nd of September,
and the _Freeman_ thenceforth ceased to exist.
FOOTNOTES:
[118] The Attorney-General, John Beverley Robinson, was ever valiant on
the stronger side. He tried to induce the Assembly to compel Dr. Horne
to insert in the next issue of the _Gazette_ a paragraph in the
following words: "From the incompetence or negligence of our reporter,
the debates of the House of Assembly inserted in the last number of this
paper were so imperfect and so untruly reported that no dependence can
be placed in their accuracy." The Assembly, however, were satisfied with
the humiliation to which the Doctor had been subjected, and would not
compel him to further self-abasement.
[119] Mr. Fothergill held the office barely three years, when he was
dismissed for voting with the Opposition in the Assembly against the
Government. It was an anomaly to permit the King's Printer to hold a
seat in the Legislative Assembly, and the Government could hardly be
expected to tolerate opposition from such a quarter. Mr. Fothergill was
the first incumbent of the office to develop liberal opinions. He was
sufficiently deep in the secrets of the Administration to make him a
dangerous opponent if he had felt disposed to wage war to the knife. Of
this fact the Administration seem to have taken a sort of oblique
cognizance. He had overdrawn his account by L360, and in settling with
him this sum was not taken into consideration. In other words, the
Government made him a present of L360. His successor in the office of
King's Printer was Mr. Robert Stanton.
[120] _Ante_, p. 171.
[121] _Ante_, p. 13.
[122] _Ante_, pp. 171-174.
[123] _Ante_, p. 136.
[124] The charge, as reported by Collins, will be found in the Appendix
to the _Journals of Assembly_ for 1829, pp. 27, 28.
[125] _Ante_, p. 42 et seq.
[126] Sir Peregrine was gazetted to be "Lieutenant-Governor of Nova
Scotia and its dependencies" on the 14th of August, 1828. On the same
date Sir John Colborne was gazetted as Lieutenant-Governor of Upper
Canada, but he did not reach the seat of his Government until late in
the autumn, and Sir Peregrine did not actually demit office until the
arrival of his successor.
[127] William Davenish and Andrew A. Thompson. The former stated that in
the event of his being called as a juror he would "put it on to"
Collins. See the _Freeman_ for Thursday December 25th, 1828.
[128] See Appendix to _Journals of Assembly_ for 1829.
[129] _Ante_, pp. 101, 102, note.