UK, House of Lords, “Canada—Colonel Prince”, vol 47, cols 1078-1104 (30 May 1839)
By: UK (House of Lords)
Citation: UK, HL, “Canada—Colonel Prince“, vol 47 (1839), cols 1078-1104.
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Lord Brougham said, that in giving notice of a motion on this subject for to-day, his intention was, to give his noble Friend opposite (Lord Ellenborough) an opportunity of stating whatever he might have to lay before their Lordships in vindication of Colonel Prince, and therefore, in bringing forward the motion, he should not make any statement, but reserve himself for a reply to the noble Lord’s defence of Colonel Prince, should such be necessary. The noble Marquess (the Marquess of Normanby) had stated, that he had no objection to lay before the House a copy of the minutes of the Militia Court of Inquiry on Colonel Prince. He, therefore, would confine his motion to an address for that document.
Lord Ellenborough said, that it must be clear to their Lordships, that the circumstance of the noble Marquess not considering himself at liberty to lay before the House, the whole of the evidence, made it more necessary for him to detail to the house the statement made by Colonel Prince in explanation of the circumstances that took place. He felt in doing this, that he was doing justice not
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to Colonel Prince only, with whom he was wholly unacquainted, but to the members of the Court of Inquiry, and the great body of persons in Canada who appeared to have sided with Colonel Prince, Before he read to the House the statement of Colonel Prince, it was necessary, that he should bring before the House a few facts which had taken place previously to this occurrence. Colonel Prince was a member for Essex county, and also a magistrate, and lived at Sandwich, and at a meeting of the inhabitants held on the 9th of June, 1838, certain resolutions were agreed to, all most strongly condemnatory of the course which the Government had pursued respecting certain prisoners who had been taken during the preceding winter, and sent before courts of justice for trial. They said:— At the same time we think it right to state, that notwithstanding all along our frontier we have suffered hardships and privations both by day and night, which it is scarcely possible to describe, still we have the mortification to see, that the brigands Theller and Sutherland have escaped the punishment which they merit, and that the murderers at Point-au-Pelée Island are not to be treated as such, but to be detained as prisoners of war. It is, therefore, the opinion of this meeting, that the course adopted by the Government in this case is unwise and impolitic towards the public in general, and the inhabitants of the frontier who have suffered so cruelly. These were the feelings of the persons who attended that meeting.
But they went further:— From positive information which has been communicated by individuals whose veracity we cannot question, we have no hesitation in saying, that we are in danger of being invaded by a numerous band of murderers, and that, not having a sufficient military force for our protection, we are almost driven to the necessity of abandoning our homes. We cannot help feeling that our lives and property are not protected as we have a right to expect; and that, in any future warfare for the protection of our lives and properties, a thirst for sanguinary, retributive vengeance may take the place of that exemplary and gallant forbearance of temper which has hitherto distinguished the conduct of the inhabitants of this province. These resolutions were sent to the Governor, Sir George Arthur, who on the 19th of June transmitted them to Lord Glenelg, along with an opinion of the Attorney-general delivered for the purpose of excusing the conduct of the Government
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with respect to the trial of prisoners. He said:— With respect to foreigners, by the laws of the country they cannot be prosecuted as traitors, as they owe no allegiance to the Sovereign; but it is true that they might have been put to death on their capture, at the moment they were taken, as outlaws, as having forfeited all claim to the protection of the laws of all civilized countries. The Secretary of State acknowledged the receipt of that opinion of the Attorney-general, but he made no remark whatever. The event which was anticipated actually took place.
An attack was made. It was made, he thought, on the 4th of December, 1838. Sir George Arthur said, that on the 4th instant, a band of ruffians, about four hundred strong, landed about three miles above Sandwich, Having set fire to the barracks at Windsor, and consumed in them two militiamen, they killed a man of colour, and afterwards murdered Staff Assistant-Surgeon Hume, mutilating his body with an axe. In the action twenty-five were killed. That was the statement given of the transaction in the official documents. Colonel Ayre, who commanded at Amherstburgh, went to Windsor, where the action took place, and in his report not one word was said of the murder of these four men. But he would now read to the House a statement made by Colonel Prince in his own defence. It was made on the 9th of April last. After the result of the Militia Court of Inquiry was made known, a dinner was given to Colonel Prince at Toronto. The Mayor took the chair, and several members of the House of Assembly and different militia officers were present. The opinion of the Attorney-general, that they had a right to put to death these outlaws, appeared to have been admitted at the meeting at which Colonel Prince made his statement.
The chairman said: Our object is twofold. To do honour to the active and gallant officer on my right, as well the defender of our domestic altars, as the vindicator of our national honour, and to proclaim to our bloodthirsty assailants, that on British ground, from British hands, they are to expect nothing but the fitting doom of murderers and outlaws. He (Lord Ellenborough) would now read a portion of Colonel Prince’s statement. He felt that it was impossible for him to read to their Lordships the whole
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of the statement made by Colonel Prince. Portions of that statement were filled with personal reflections, with which he should not trouble their Lordships, and respecting which, he felt it would not be right to bring them forward upon such an occasion as the present. What he meant to read from the statement referred exclusively to the question then before their Lordships, and it would be found, that Colonel Prince did not disguise the part he had taken in the transactions which had been commented upon. Colonel Prince began his statement by saying, that he would not disguise from the meeting, that he was aware, that there were some who questioned the propriety of what he had done.
He believed, that there were but very few, but still he should give an account of all that had taken place. He observed, that fifteen months ago seventy villains, misnamed patriots, had assaulted their little town, and having cannonaded it for two successive days were defeated. Their leader was taken and escaped, and no one was punished by the law for that outrage. Then came another invasion by the buccaneers. Many prisoners were taken, and “no one was shot or hung, as they ought to have been.” They had not yet even been tried, and they were kept to fatten in their prisons—places in which these plunderers were much better off than they had ever been. Then came the capture of General Sutherland and some of his followers; but did they shoot even those ruffians on the spot? Such was the state of their frontier in 1838. Armaments were again preparing on the American side.
Colonel Prince then continued in these words:— During this period we were continually expecting an attack. A large reward was offered in Michigan for my head, because I was a loyal man, and an active officer. At length, after having harassed us perpetually, they invaded us. They murdered a poor negro in cold blood. They murdered and afterwards mutilated the brave and excellent Dr. Hume. Only one hour before, he was in my house full of health and life, and when I saw him the victim of the knife and the axe, when I saw the mangled body of the negro, when I saw my loyal fellow subjects lying around the smoking embers of their homes, and when I saw that the punishment for heinous crimes had vanished from the earth, and that the verdict of a jury went for nothing, I ask, in the face of the whole civilized world, whether the time had not arrived when the severest, when summary, justice ought to be inflicted on that murderous crew The five, wretches whom I
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ordered to be executed, were shot during the excited period of an unexpected attack from the enemy, or when we were marching up to meet them. This the evidence before the Court of Inquiry will show; and the other villains who were taken, we handed over to the civil powers, but very few of them have been executed.
Lord Brougham was exceedingly glad that his noble Friend had pursued the course which he had thought proper to adopt upon the present occasion; for none other could have better served the ends of justice. The person whose conduct had been attacked by him in that place—attacked upon grounds which he should presently show had not been in the slightest degree shaken—and attacked, too, in language which was not more strong than the occasion required—but having been so attacked it was fitting that all should be heard that could be urged in the defence of that Gentleman, and in such a case he must say, that a better course could not be pursued by his noble Friend than that of reading Colonel Prince’s own words, containing his own account of his own acts.
If Colonel Prince had been an ignorant person—if he had been a man of imbecile understanding, if he had been a man not accustomed to defend himself and others—if he had been an unlearned, inexperienced, feeble, advocate in his cause—he then should have doubted that his noble Friend had pursued the best course in the defence of Colonel Prince, by substituting the words of the accused for the arguments which his noble Friend might have used. It was plain that a man who made that speech had corrected it for the press; it was manifestly a speech reported by himself, because if it were not so, then he must say that the reporters of after-dinner speeches in Canada were far superior to any that were to be found in Europe. But if it were only a report of a speech made, he must say that it was a most striking and able defence, and one of the most touching narratives he had ever heard, and the more touching and the more striking because it was made by an eye witness of the scenes which he described. Colonel Prince had now, then, no right to complain of being condemned without a hearing; or of being attacked behind his back—for Colonel Prince stood in the place occupied by his noble Friend. If Colonel Prince were in that House he could not have done better for himself
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than his noble Friend had done for him, in putting forward his own case in his own words. Their Lordships had however now to go to the rest of the case, of which they had not heard; and first, as to the verdict of the meeting at Toronto. It was said that they were all united together—that they were all of one opinion—and that they had received the defence of Colonel Prince with the greatest acclamation. Now he must own that he should have been better satisfied with the applause and the acclamation, if it had been bestowed upon Colonel Prince, not by the meeting in Toronto, where the matter did not take place—where they took Colonel Prince’s own account, and where they knew personally as little of the real facts as any of their Lordships.
Lord Ellenborough begged the noble and learned Lord to look to the proceedings of the Court of Inquiry.
Lord Brougham said, that he was coming to the Court of Inquiry. But how was the case made out for Colonel Prince by the opinion of the meeting at Toronto? They knew nothing personally of the matter—they heard only his own statement of the facts. He did not think that such an appeal from the law—from the administrators of the law of the land and of justice—could be sanctioned by their Lordships. Nor did he think it was a right course of argument for his noble Friend to pursue, to read the vituperations resolutions which had been passed at a meeting in Canada, and which he did not deny contained the gravest charges against the Government, because it was not more vigorous in the execution of the laws—which blamed the Government because it had not carried on the law with sufficient vigour—and which complained that so few persons had been executed—that a greater number had not been tried; or that they had not been hanged after trial—he knew all this; but then he was bound to say in common fairness, that when a Government thought proper to exercise mercy to persons under prosecution, he was bound to admit until the contrary could be proved, that they were in the right, and that those who censured them were in the wrong. What would any man say of a meeting in Middlesex or Westminster, complaining that A, B, and C, had no been brought to trial, and that D had been tried and not been executed; and, when they had thus
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called for the blood of these men, they then declare that the Government should be responsible for all the outrages that might be committed in Surrey, Yorkshire, Kent, or other disturbed districts, and all this simply because the Government did not choose to hang all the men the meeting wished to see executed? He supposed that noble Lords were not so anxious to defend Colonel Prince, as to give up their own colleagues; but whether they did so or not, the law of the land determined otherwise. He, therefore, treated very lightly the statement of his noble Friend, and which was the foundation of his whole argument, that there was great discontent in Canada, because so few men had been executed—that they declared that if the Government did not hang more men than it thought fit to hang, that they would be obliged to have recourse to retributive justice, and take it into their own hands! Did his noble Friend—did any other noble Lord—defend such conduct? If the Government did not choose to hang a number such as would be sufficient to please the people in Toronto, then they gave notice to Government, they would take the law into their own hands—that is, into the hands of a mob—and thus act over again that which was the horror and the scorn of all—the Lynch-law of the most savage parts of America.
It was, then, because the Government did not do this, that Colonel Prince took the law into his own hands, by shooting those men the moment they fell into his power, for that was the defence of Colonel Prince.
Lord Ellenborough— there was also the opinion of the Attorney-general of Canada.
Lord Brougham—Yes: but if the opinion of the Attorney-general had been given in the language which had been read, it was, he could only say, new to him. If it could be brought forward as so actually given, in the defence of Colonel Prince, it was no doubt an extenuation; but he could not have expected—he could not have foreseen—any such defence being in the possession of Colonel Prince. How could any lawyer ever dream of its being possible that any other man, calling himself, and exercising too, the office of Attorney-general, could give such an opinion. How any lawyer could have formed an opinion so inconceivable, so outrageous, he was wholly at a loss to imagine. He was, indeed, the more surprised when he heard some of their Lordships
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cheer that opinion. They were the highest court of judicature in the realm; in their hands was the administration of the criminal law; and they who were judges in the last resort; and yet he had heard half a dozen at least of their Lordships cheer an opinion, which was the grossest outrage on all law that had ever been put on paper, not merely by a lawyer, but by the most ignorant man that ever existed. It was had from beginning to end—it was absurd and monstrous from the beginning to the end. It began by stating that which was the least outrageous proposition of all, but in proportion as it became more outrageous, the more was it cheered by their Lordships, who were the judges in the last resort of criminal law.
It stated that a foreigner could not commit high treason. Colonel Prince, who had first been an attorney on the Oxford circuit, and had left it to go to America, must have known the absurdity of such an opinion. But what was the remedy which this opinion of the Attorney-general proposed—that as the foreigner could not be punished as a traitor, he might be treated as an outlaw! When before was it ever heard of a man being called an outlaw, until after due process of law and proclamation against him? But did a lawyer ever speak of a man being treated as an outlaw—that is, a man placed without the protection of the law—which was the sense in which the word was used by poetasters and romance-writers, and others not particular in the use of language, and therefore did not care for using it correctly—as they called a man “a felon,” who had never committed a felony in his life—suppose a man were an outlaw, that did not entitle another to shoot him, as the vulgar notion appeared to be.
What man that had ever read even Blackstone could fall into such an absurdity? Even if a man were really an outlaw, and after proper sentence pronounced to that effect, and he should himself put that man to death, he would be guilty of murder. But what said the Attorney-general of Canada? That a man could be treated as an outlaw, and then he drew the inference, that he could be shot on the spot as an outlaw. Such a proposition was absolutely groundless in point of law. But then his noble Friend had not read the answer of the Secretary of State to him, denying that it was the law.
Lord Ellenborough—it was not denied at all.
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Lord Brougham—That was a very great oversight, and somewhat altered the case; for Colonel Prince might be at the same time a very good soldier and a very had lawyer.
Lord Ellenborough—The opinion was sent on the 19th January, 1838.
Lord Brougham—He certainly must regret that such very had law should have been permitted to pass unnoticed and uncensured; for, according to that, no man’s life was safe. But he had now to call their Lordships’ attention to his statement of this affair, and which gave a very different version of Colonel Prince’s conduct from that which they had heard. It was given, too, by those who saw and knew what was the conduct of Colonel Prince.
Lord Ellenborough rose to order. He had to remark that the noble Marquess had refused to give all the evidence which had been stated before the Court of Inquiry. He apprehended that what his noble and learned Friend was about to read, was stated before the Court of Inquiry.
Lord Brougham was, he said, about to refer to the allegation of the 8th of December, 1838, made by Robert Mercer. It was signed by Colonel Mercer, who was in the habit of friendly intercourse with Colonel Prince, and who had no prejudice against Colonel Prince; on the contrary, the lieutenant of Colonel Prince was the son of Colonel Mercer, and he admitted, that he had always been treated with the greatest civility by Lieutenant Mercer, and never had one word to say against him. This Lieutenant Mercer took a different view of Colonel Prince’s conduct than that which the gentleman himself entertained respecting it.
First, then, as to the opinion of the people amongst whom Colonel Prince lived: he began by saying, “The Contemptible,” for he was a gentleman who used strong language when he had his own defence to make: he said, “the contemptible and ungrateful people with whom I had the misfortune to be connected for five years;”—and this, too, is the same Colonel Prince’s manner of answer to obligations from some of his quondam friends, who were disgusted at his outrageous conduct—”In answer to all my quondam friends, I treat their expressions and opinions with the utter contempt which their ignorance, ingratitude, and prejudice are deserving of.” Colonel Prince would not take his verdict from his friends, the Mercers; he would not look for a verdict
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from his friends who were on the spot, and in whose neighbourhood he had lived for five years, and amongst whom he had been making a fortune—them he treated with contempt, and their opinions he disregarded; but he appealed to the verdict of the absent and the ignorant people of Toronto, who met to celebrate his achievements, because he had put to death several, when they were crying out for the death of many others. This was the verdict upon which Colonel Prince relied—while he rejected the verdict of those who were on the spot, and who were all witnesses of the fact. What, then, was the character of the witnesses who were against him?
Up to this time no disrespectful words had been used; but as the using strong language in one party begets, if it does not justify, similar language on the other, he is therefore told by Mr. Mercer, “You are at perfect liberty to treat with contempt your quondam friends, as you may thus save them the trouble of doing the same by you.” Now, who were they that made representations to Sir George Arthur upon this subject? The senior officer of militia, Colonel Elliott, Mr. Charles Elliott, Mr. Baber—and the representations were also signed by Mr. Arkin and Mr. Woods. Now, from whom should be ask a character of these men? Was it from Sir George Arthur, or from Colonel Airy? No; but it was from Colonel Prince himself, who stated that they were in the battle, and in his dispatch he said of them, “that they behaved with the greatest gallantry in the affair at Windsor.” Their lordships had then their account of this matter; and there were the affidavits of four witnesses. It was said, that the affidavits of those witnesses were extra-judicial, and that being voluntarily made, they could not be prosecuted for perjury. That was not quite true, although the former profession of Colonel Prince might have led him to such a conclusion, for he believed that a voluntary affidavit, containing false allegations, was indictable. It proved, however, this—that taking it as a statement, it was made under all the solemnity and impression of an oath, and it was under that impression they made the horrible, revolting, and disgusting statement of the conduct of this individual. Colonel Prince had observed a prudent generality in his statement; he carefully took care not to specify the time, when the whole Question hung upon the
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point of time—whether it was during or after the battle that the men were put to death; but still, after all, Colonel Prince had said enough to convict himself. He said, that the men were put to death—that he ordered them to be shot on the spot—either during the expectation of being attacked, or when they were marching to meet the enemy. Did the noble Duke opposite ever, in the anxious expectation of an attack from the foe, order four prisoners to be shot?—or did he, because he was marching up to meet the enemy, put those to death who had surrendered upon the faith of quarter being granted to them? And yet this was Colonel Prince’s own account of the transaction! But the fact was, that the men were put to death after the attack was over. This was the fact, according to the statement on oath by four eye-witnesses; this, too, was the statement of thirteen persons, five of them being justices of the peace, and one of them a district judge; this, too, was the statement of Adjutant Cheeseman.
The Marquess of Normanby understood that the noble and learned Lord was about to make charges against Colonel Prince, which had been already submitted to a Court of Inquiry.
Lord Brougham—The Court of Inquiry admitted the charges.
The Marquess of Normanby—It negatived all the aggravating circumstances.
Lord Brougham—The Court of Inquiry had come to a very extraordinary decision. They had given a very had judgment, and he did Dot mean to rely on it. He would quote Sir George Arthur’s opinion. Sir George Arthur said, “As to the invidious colouring which characterises the details of the facts in the address, it is not in any way substantiated by the evidence.” This said that the colouring was not supported by the evidence, but it did negative the facts. It left the substance and substratum of the charge untouched.
Lord Wharncliffe—Read the finding of the Court of Inquiry.
Lord Brougham—There was no finding, or at least the finding was not published. He would now read to them the statements of the officers to whom he had before referred. They had heard Colonel Prince’s evidence in favour of himself; they had allowed him to tell his own story in the way he chose; his noble Friends near him had listened with great composure and exemplary patience to the most violent attacks upon themselves, and they must
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now hear the statement of these thirteen officers, five of whom were justices of the peace, on the other side. They had heard one man’s story, but they did not seem disposed to hear the story against him; but he said, that they should hear it.
Lord Ellenborough said, that he had abstained from reading that part of Colonel Prince’s statement relative to the affidavits of these thirteen officers, in which he affirmed their falsity.
Lord Brougham—Only false as to the aggravating circumstances. However, he would not read the affidavits, but the statements which had been made by those officers, and of which there had been no denial, but an affirmance by the sentence of the Court, and Colonel Arthur’s judgment and reprimand. Their lordships should hear what grounds there were for the statement, that prisoners had been butchered in cold blood. These officers said, “Adjutant Cheeseman brought in a prisoner, who had been just taken, and surrendered him to Colonel Prince, and Colonel Prince immediately ordered him to be shot, which was done accordingly.” The fact was not denied; and Colonel Prince himself, in his letter, said, “Just at the close, and immediately after the engagement, four men were brought in, all of whom I ordered to be shot on the spot, which was done accordingly.”
Colonel Prince had not been very judicious in his defence, for his accounts of the transaction given at different times did not quite agree, At the dinner he said, that it was “while he was in momentary expectation of an attack, and was marching to meet the enemy.” Now, there was a very wide and marked distinction between the two cases. He (Lord Brougham) passed over a great deal of the statement of these officers. Three-fourths of it were occupied with complaints that Colonel Prince had not done his duty against the brigands. So little anxious were these thirteen persons to favour the party to which the prisoners belonged, they charged Colonel Prince with not having done his duty against the brigands. When they were retreating, Lieutenant Ranken offered, with fifty men, to attack them; but Colonel Prince would not budge from Sandwich, and while he was waiting for reinforcements the four men were shot. The document went on to say,— While we were waiting here for reinforcements,
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a prisoner was brought in wounded to Colonel Prince in the town, who was surrounded by several men in the most frequented part of the main street; and while the wretched man held up his hands, pleading in the most piteous manner for mercy, Colonel Prince ordered him to be shot. This happened after an officer, on hearing Colonel Prince, had told the unfortunate man to run for it, and said to the twelve men who were about to shoot him, ‘You scoundrels, do you mean to murder your prisoner?’ The wretched man did run for it, but he was shot on the spot by Colonel Prince’s repeated orders. This took place in the presence of several ladies and children, whom the noise had brought to their doors. This, by the way, did not look very like the expectation of a battle.
As to the third case, they continued,— Another prisoner, also severely wounded, was brought in. Charles Elliot entreated Colonel Prince to reserve him to be dealt with according to the laws of the country, but Colonel Prince, using an oath, said he must be shot—and he was shot immediately. As to the fourth case, it was this:— Colonel Prince had just reached Windsor, when he was informed that a wounded man was lying at William Johnson’s house. The man was most miserably wounded, his leg having been shattered by a bullet. He was taken after the action to William Johnson’s, and promised surgical aid for his wound. Colonel Prince was told when he arrived at Windsor, that there was a wounded man lying there who had been taken prisoner in the action. He ordered him to be shot, which was done accordingly. The fifth case did not seem to have been adverted to—and he (Lord Brougham) much wondered at it—either by Sir George Arthur or the Court of Inquiry.
It was this:—Captain Broderick had taken one of the brigands prisoner, a man who had sued to him for mercy. Now he (Lord Brougham) must here say, that he was the last person to say a word in favour of these brigands, or of their atrocious and desperate conduct in those inroads, which had been not only sordid in their object, and predatory in their character, but had been accompanied by every circumstance of aggravation and horror. It was enough to make the blood curdle in the veins to think of a frontier so ill protected against violations of the law by the American Government, whose duty it was to protect it, or they ceased to deserve the name of a government. It was shocking to think, that any honest man might meet with such a fate as that
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of Dr. Hume, who was put to death and mangled, with circumstances of cruelty too horrible to relate. He (Lord Brougham) agreed in every word that might be said in reprobation of the horror of such proceedings. But, however that might be, however guilty those persons might be of every species of enormity, those who put them to death without law or legal trial were guilty of neither more nor less than absolute murder. Captain Broderick, as he had said, had taken a prisoner, and when the man sued for mercy, had told him, “You have fallen into the hands of a British officer.”
Colonel Prince, however, having continued his march fourteen miles, fell in with the prisoner and ordered him to be shot, although Captain Broderick had given him quarter, and told him that he had fallen into the hands of a British officer, and therefore that his life was safe. Colonel Prince ordered this man to be shot, and it was instantly done. Did Colonel Prince express sorrow for these proceedings? On the contrary, in his letter he expresses Deep regret that he did not shoot every scoundrel of them as fast as he was brought in. On the next occasion he would assuredly do so; nor should the solicitations of sympathizers on one side, nor of marauders on the other, nor the cowardly apprehensions, miscalled humanity, of others, drive him from his purpose. This was Colonel Prince’s resolution.
What he designated as “the cowardly apprehensions, miscalled humanity,” of some persons, was explained by a circumstance which he would mention. The Indians had taken seven prisoners, and one or two of them proposed that they should be shot; but one of their chiefs said, “No; we are Christian men, and can’t shoot a captive.” That was the Indian notion of Christian mercy and forbearance. These prisoners were then brought to Colonel Prince, an Englishman, an emigrant attorney to the New World, who, however, without very good grace, talked in the greatest contempt of broken-down adventurers—and who ordered them to be shot; but at that moment Captain Elliot and three others, one of whom was an English clergyman, interfered, and one of them used the expression, “For God’s sake, don’t let a white man murder those whom an Indian has spared.” That was a very natural appeal to be made under the circumstances, and
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it had its effect; for the Colonel suspended his orders, but he at the same time expressed his disapprobation of the interference, and made them responsible for his not having shot the men—a responsibility which he had no doubt would not weigh very heavily upon them for the remainder of their lives; but the feeling of Colonel Prince on the matter was expressed in the letter which he had already read to their Lordships; for there could be no doubt that, when he talked of the cowardly apprehension, miscalled humanity, he referred to the interference which had been exercised on that occasion.
The law on the subject was so well known that it could hardly be necessary to refer to it; indeed, he should have thought it wholly unnecessary but for the cheering that had taken place, which would almost induce one to believe that some of their Lordships had no better acquaintance with the law of the land than if they had been Attorney-generals for Canada. Suppose a man who had shot another was pointed out to him an hour after, and that he then put the murderer to death, he should himself be guilty of murder. Even if he saw a murder committed, and put the murderer to death, he should be guilty of murder, unless it was done in self-defence. Suppose even that he saw a man convicted after a trial by a jury of his peers and sentenced to die—nay, suppose him outside the prison door on his way to the place of execution, and that he should then destroy him—even in this case, and their Lordships would admit it was a strong one, he should be guilty of murder. This was the law. Now, what said Sir George Arthur? As to the facts of the case, there was no variance in the main between the statements he had read, and the admissions of Colonel Prince. Colonel Prince had avoided particulars as to time and place in his statements, but they were not inconsistent with the representation of the thirteen officers. Colonel Prince had seen those representations. He knew what the charges against him were, and by whom they were made. He knew the evidence against him, and that the witnesses were some of the most respectable parties in the province. He had, therefore, full opportunities to make the best defence that his conduct admitted of. After the evidence had been taken by the Court of inquiry—evidence which he was sorry to hear could not he produced—after
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the court had given its verdict, judgment was given by Sir George Arthur with the whole case before him. This document set forth, in the first place, that an inquiry had taken place, and that The invidious colouring which characterises the details of the facts in the address signed by Colonel Elliott and others, was not in any way borne out by the evidence. Sir George Arthur had dismissed Colonel Elliott for his conduct, but that certainly did not prove Colonel Prince not guilty; it was quite beside the question. In the document it was farther stated, that Governor Arthur Most deeply regrets that, under circumstances of impending danger and highly excited feelings, Colonel Prince should have been induced to anticipate the result of legal proceedings, in directing summary execution of four of the captured criminals, while he exonerates him from the charge of wanton cruelty. “Directing summary executions,” indeed! He had put four cases, every one of which the English law calls murder; but, according to Colonel Arthur’s account, be might in each of these cases have killed the man who had committed a murder, and the Governor’s description of the offence would be an “anticipation of the result of legal proceedings,” by directing the summary punishment of the individual.
No doubt it was an anticipation of legal proceedings, but it was called murder by the law of England. It contained no recognition of this new crime, discovered by the mealy-mouthed Governor of Upper Canada. In Hawkins, Blackstone, or East, he knew of no chapter in the pleas of the Crown, “On the anticipation of the course of legal proceedings by summary execution.” The offence to which this name was given was not, however, unknown to our law—it was called murder. What was the use of legal proceedings, if Colonel Prince, or any other, might (at his pleasure) anticipate them? What was the use of trying a man, if his guilt was pre-determined upon? If a man was brought to trial, he might be acquitted; but, notwithstanding that, Col. Prince called the prisoners whom he shot, brigands; they might, however, have been pronounced by a jury to be no brigands at all. His noble Friend had set up something of a defence, and it was the only injudicious thing his noble Friend had done. He had referred to a resolution
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of a popular meeting in Upper Canada, complaining that, though persons were tried and convicted, they were not hanged. But Colonel Prince, if he acted on this ground, that though the prisoners might be convicted, they would not he hanged, made no reference to it in his defence. He seemed to feel no defence necessary, and only regretted that he had not shot more of the brigands. These were the facts of this case, and he had felt it his bounden duty to call their Lordships’ attention to them. He could not retract one single word which he had formerly used with respect to the case, for the more he examined it, the worse was his opinion of it. He was not surprised that Colonel Prince’s friends should have given up his acquaintance. He was not astonished at the way in which be had been treated by the people of his neighbourhood, and by those quondam friends whom Colonel Prince said, he had the misfortune of living among for the last five years. They saw Colonel Prince’s conduct, and felt abhorrence at it, with the opinions and feelings of British subjects in their bosoms, in which indignation boiled over, as it had done in him. The noble Marquess had stated, the other night, that the Government here sent over an expression of its disapprobation of the conduct of Colonel Prince. That was a gentle phrase. He disapproved of murder, certainly; but his disapproval was merged in his abhorrence of it, and he must apply a much stronger word of censure to the greatest crime known to be committed by man.
It should always be considered, that either this anticipation should deserve no censure at all, or it amounted to an unauthorised killing of five persons, which he stigmatised as murder. Before he concluded, it was only fair that he should add that the only bright spot which he could perceive, in the whole case, was one which arose, he regretted to say it, from the blunder of the Law Officers of Canada, and the neglect of the Government here in not setting those blunders right. He thought that the opinion of the Attorney-general was calculated to mislead that person, and yet he could hardly consider that a person bred up in the law of this country should not at once have seen the absurdity of that opinion; but, as it came from high authority, and as it had been allowed to remain uncorrected,
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it was possible that Colonel Prince might have acted under its influence. However, though he wished to give Colonel Prince the benefit of that opinion, he could not withdraw his mind from the statement which Colonel Prince had made in his own defence, and in which he did not at all rely upon that opinion of the Attorney-general. He had now stated all the circumstances which had been urged in mitigation, and also the impression which those circumstances had made on his mind.
The Marquess of Normanby wished to state some facts connected with these transactions, which the noble Duke (Wellington) would probably like to hear before he made his observations. He was particularly anxious to make them after the allusion of the noble and learned Lord to the decorous silence which had been observed by the Members of the Government. He had thought it more convenient, that the noble Baron opposite should make the explanation which he had to offer, and that when he saw the terms of the motion he should give the best answer to the case brought forward.
He must begin by stating, that he felt—and he believed, in common with all their Lordships—the deepest regret that this transaction had taken place. With every allowance that could be made in consequence of the gross exaggeration and great misstatements that had been made—which had been submitted to the Court of Inquiry, and had operated very widely to the prejudice of Colonel Prince—the circumstance was most deeply to be regretted. He was sorry, that the noble and learned Lord in the course of his statement had gone into these misrepresentations, as if they had never met with contradiction. He felt it necessary to resist the motion of the noble and learned Lord on two grounds. In the first place, it was perfectly unusual, that the proceedings of a military court, whether a court of inquiry or a court martial, should be called for by Parliament.
The Government, too, had as yet received only imperfect information of those proceedings. He had received a part of the evidence, but not the whole. That part of the evidence allowed him an opportunity, which perhaps was not perfectly regular; but after the House had heard the noble and learned Lord on the subject, he felt he should not be doing justice to Colonel Prince if, having in his possession a précis of the evidence of the thirteen gentlemen whose names were attached
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to the document which had been referred to, he did not state that their evidence did not in any respect support what had been alleged. With respect to the fifth case, to which the noble and learned Lord had alluded—that of the prisoner taken by Captain Broderick—there was a distinct disavowal on the part of all the gentlemen of having any knowledge of this case. Every one of the witnesses, on being asked, said, that of the prisoner No. 5 he knew nothing. It was obvious what the impression created on the minds of the Court of Inquiry and of Governor Arthur was, for otherwise he would not have alluded, as he frequently did, to the number of prisoners as four.
With respect to one of those witnesses (Colonel Elliott) he so little shared in the feelings of the noble and learned Lord relative to this transaction, that he took the chair at a public meeting of the county of Essex, in the neighbourhood where these things had taken place, at which a resolution was passed approving of the principles of Colonel Prince’s proceedings, and wishing that they might come into general operation
Lord Brougham— The approval was limited.
The Marquess of Normanby —The resolution was one of approval, and Colonel Elliott had been certainly in the chair. It happened after the transactions had taken place, and Colonel Elliott must have attended the meeting to approve of the principles of Colonel Prince’s proceedings. Sir George Arthur, in a communication to him had alluded to the private misunderstandings which led to the allegations, on the part of some of the individuals, against Colonel Prince, who had previously never taken any part in opposition to his proceedings.
He could not think it necessary for him to refer to what had been touched upon by the noble Baron opposite; but he could not but think, that some mitigation of the conduct of Colonel Prince was to be found in the atrocious cruelties committed on the same morning by a merciless banditti, whose object was plunder to be obtained by the sacrifice of human life. It was impossible, that the fate of Assistant-surgeon Hume should not have created a deep impression on the minds of Colonel Prince and of those under his command, and over whom he could have had but an imperfect control. A great deal depended upon the actual period at which the facts occurred, and he would state strictly as he believed the order in which, and the time when, they really occurred. On the 4th of December in the morning, Colonel
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Prince being in his house, about half a mile from the town of Sandwich, was roused by an alarm that the town of Windsor, between two and three miles distant, was in the hands of brigands. The number was variously reported, but all agreed that it was very considerable. Colonel Prince collected, he believed, not more than 150 men at the first intelligence, and started for Windsor, believing it to be in the possession of the brigands. He found a considerable body of them posted in the neighbourhood, from which they were driven towards the woods, Colonel Prince following them all the way. On his arrival at the border of the woods intelligence was brought to him that Sandwich, the place he had left in the morning, was in possession of a considerable body of these marauders.
Colonel Prince upon this determined to march at once to Sandwich, and retreated, as he said, from Windsor in double quick time. He did not know whether, after attacking the brigands at Windsor, he might not have to sustain an attack from those whom he imagined were at Sandwich. In this way he (the Marquess of Normanby) thought that Colonel Prince’s report to Colonel Airy might be reconciled with his speech at the dinner. On one occasion he said the four prisoners were brought in “immediately at the close of the engagement.” This was the engagement at Windsor; and on the second occasion he said it was during the anxious period in which he was expecting an attack of the enemy. This was the attack from those whom he believed to be at Sandwich. There was no doubt, that Colonel Prince at the time must have laboured under considerable anxiety. He did not know whether there was any place left to which he could retreat, or whether Sandwich (in which his ammunition and stores were deposited) was in the hands of the marauders. Considering not only these circumstances, but the general unhappy state of excitement caused by the atrocious inroads of those merciless ruffians, by whom all feelings of humanity were disregarded, and all comforts of home and feelings of security destroyed, it was less surprising, though not less deeply to be deplored, that Colonel Prince should have taken such means of punishment. It was his (the Marquess of Normanby’s) duty to take every means in his power to prevent the recurrence of such proceedings, and to convince the parties exposed to these inroads, that, besides the guilt of such retaliation, it must utterly destroy public sympathy with their sufferings, With respect
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to the opinion of the Attorney-general of Canada he could hardly speak, as it had not occurred during his period of office. He believed the opinion had been given in consequence of a doubt expressed as to whether these persons could be tried as traitors. In the opinion of the Attorney-general they could not. But no time had been lost in correcting this mistake; and in consequence many of those men had been tried for treason. With reference to this transaction, when be (Lord Normanby) came into his present office, he found a dispatch of his noble Friend, stating, that he would suspend his opinion till Governor Arthur had made further inquiries.
On looking further, he found, that in March the noble Lord had written again to Governor Arthur for information. A few days after this a despatch arrived from Governor Arthur informing him of the Court of Inquiry. He (Lord Normanby) wrote a reply, approving of the Court of Inquiry. He had not yet got an answer, but he had the proceedings and the finding of the Court of Inquiry, and also part of the evidence, showing, that thirteen gentlemen did not in any respect support the allegations which had been made in the first instance. With reference to the motion for papers, he should not have the slightest objection to grant them; but unless the House had the proceedings throughout, it would be useless to call for the proceedings of the Court of Inquiry. With respect to the correspondence, he should have a strong objection to produce it, because he thought it would not be fair to Sir G. Arthur.
He had done everything in his power to strengthen the hands of Sir G. Arthur, and he believed that the discretionary power which had been conferred upon him had been exercised with a sound judgment and with beneficial effect. He had no doubt that Sir George Arthur was fully aware of the responsibility of his situation, and that being so, he would en deavour to discharge the arduous duties connected with it with justice, firmness, and mercy. From all the communications he had had with Sir G. Arthur, he felt assured, that the embarrassments under which he necessarily laboured would be very much increased by the production of any further correspondence; and he was glad of the present opportunity publicly to state his determination, while he had that confidence in Sir G. Arthur, to continue to extend to him the difficult discretion with which he was invested; for by so acting he felt
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convinced, that he would be not only doing justice to the individual, but doing what would be most beneficial for the public service.
The Duke of Wellington had readily given way to the noble Marquess, and he was very glad he had done so. His object in addressing their Lordships at all, was to remind them of the situation in which the House stood respecting this question, and to point out what he thought it requisite they should well consider, namely, that they were not exactly proceeding in the usual course of justice in discussing a question of this kind, at this particular stage of the proceedings. The noble and learned Lord having heard of this transaction, came down to the House the day before yesterday, and pronounced a very strong, a very hostile opinion on it, though not stronger than it deserved. His noble Friend near him had considered it his duty to make known to their Lordships some circumstances which had come to his knowledge from having perused the papers on the subject. The noble Secretary for the Colonies had said that the Government had stated their disapprobation of the proceedings. This was the position in which the, question stood on Tuesday. Their Lordships had now this case; they had gone into the consideration of the whole of the circumstances on both sides—circumstances which occurred six months ago, and which involved the commission, the honour, perhaps the life, of an individual employed in the service of the country, and also the conduct and character of the Governor of Upper Canada.
Of that functionary’s conduct the noble Marquess had justly pronounced his approbation. Their Lordships had left out of the question altogether that which he supposed no man could well have a doubt about; namely, that if Colonel Prince had misconducted himself as a military man—and that was his character in this transaction—there was another person concerned in this matter; namely, his gallant Friend, Sir John Colborne, whose duty it would have been to have brought Colonel Prince to a court-martial, and to have punished him according to the finding of that court. Besides, the gallant Colonel was liable to be tried for his life before the ordinary tribunals of the country. Having all this before the House, and in the minds of their Lordships, they had now come six months after the transaction
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to the discussion in that House of dl the details, and expected that justice would be administered, whether in a civil or military tribunal after such a discussion. He never heard of such a discussion taking place in that House of Parliament in reference to any one liable to such charges until after the trial was over, the evidence heard, the sentence pronounced, and the House was thus rendered competent to express an unbiassed opinion upon it. Under these circumstances he could not help feeling that their Lordships were not in a situation to discuss this matter. His noble Friend who sat near him had described to their Lordships the nature of the war carried on in this province, and he would not enter upon the question at any length, after the opinion which had been stated by the noble and learned Lord opposite. He had no wish to weaken an opinion so pronounced, than which nothing could be stronger.
The noble Secretary for the Colonies had also stated that he concurred in that opinion. He (the Duke of Wellington) had already drawn attention to this subject on the legitimate occasion, on voting an address to her Majesty. He had then stated the probability—nay, the certainty, that we should at last come in that country to a system of retaliation, and that if the thing were not stopped, a state of warfare would arise more barbarous than any ever known; which riot only could not be equalled in the present times, but which he believed had never been paralleled in history. He could now tell their Lordships what he knew to be a fact, that such a system of warfare was actually going on there; and his opinion was, that it would be a deep disgrace to the country to continue to endure it.
If her Majesty had not the power to assert her rights, to protect her loyal subjects on that frontier, we ought to abandon the province, and withdraw at once from the country. He was aware that some persons in this country wished us to abandon the province for other reasons. In those reasons he did not at all concur; his opinion was, that it was most desirable to retain this colony. His conviction was, that our honour required that we should maintain it. Measures having been taken by other nations to deprive us of these colonies, our honour imperatively demanded that our utmost energies should be exerted to preserve them. But he must say this, that if we did not grant
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protection to the lives and property of the Queen’s loyal subjects in these provinces, if Parliament would not vote the forces necessary to give that protection on the frontiers—we ought to abandon them altogether, and thus put an end to the system of warfare now carried on. It was a war full of the greatest horror, misery, and outrage. At this moment, our guards and picquets were necessarily kept on the whole line of frontier, from one end of the country to the other. If by any accident we were obliged to withdraw our troops from one part of the line, the persons very appropriately designated brigands came over in sledges or some other description of carriage, crossed the country, and the houses of the inhabitants everywhere in that particular direction were destroyed, life taken, and property plundered. All along this frontier there was a perpetual fire kept up from the side of the United States, across the imaginary line, upon our guards, our picquets, and even on the single sentinels posted along the line.
In war, every means was justifiable on both sides to get the better of the enemy; but, certainly, he had never before, in the whole course of his experience, heard of such a thing as firing on single sentries, not to say guards or picquets. Yet this species of warfare was going on at present in this province. There had lately been a message brought down with respect to uniting this province with the other province; but had we possession? Was there a single spot of ground, except that on which the troops stood, on which her Majesty’s authority could be enforced? When first these events occurred, he (the Duke of Wellington) recommended the Government to provide a sufficient force; he told them, that there ought to be no such thing for a great country like this as a little war. He recommended that a large army and a large fleet should be assembled on the Saint Lawrence at the opening of the season 1838. These recommendations were not acted upon. They were not adopted, and the House had nothing to do, but to look at a little distance from us to see the reason why these recommendations were not adopted. What had been the consequence? That Government had been under the necessity of employing in its service the inhabitants of the country, the militia, the various local corps, instead of having bodies of regular disciplined troops commanded by
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officers who knew their duty and how to perform it. It was owing to this, that these unhappy events had occurred—events which no one man more deplored than he himself— and the guilty persons engaged in which he was most desirous to see punished. It was most unfortunate that it should have been found necessary to make use of what he could but call an inferior description of troops. Horrors such as those which had been witnessed could hardly be prevented, except with regular troops carrying on their operations under the command of officers of character, conduct, and experience.
This was the only remedy for such evils as those, which must invariably prevail, more or less, wherever irregular acts of revenge were carried on by bodies of men acting on principles of civil war. He had in his experience more than once had the offer of men of this description, but he had always sent them away, preferring rather to have a limited body of troops than to have with him troops of this description, who would not obey the orders they received. His opinion was, that unless a sufficient army was provided, we must in the end, abandon the country. Volunteers and that description of troops would always carry on war after the manner of civil war, and the same consequences would always ensue. It was impossible that the war could continue to be carried on as it had hitherto been conducted, without the same results.
Lord Glenelg said, that a large augmentation had already taken place of the force in Canada; it was not necessary to specify the exact amount, but at this moment a very large force was stationed in Upper Canada, and he would venture, with respect to put it to the noble Duke, whether he thought a still further augmentation should take place, and whether it would be possible so to augment the regular forces stationed there, as to depend entirely upon them for the defence of the colony. He wished to advert to the observation which had been made as to his not having in his answer to a despatch, alluded to the opinion of the Attorney-general of Canada. He could not but remind the House of what had been stated by his noble and learned Friend—namely, that Colonel Prince had ‘not rested his defence upon that opinion of the Attorney-general, but upon the emergency of the occasion. According to the
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Attorney-general’s opinion, it was impossible to bring the culprits to trial as traitors, because they were foreigners, but he thought they might be tried as outlaws. In his (Lord Glenelg’s) answer to the despatch, he said, that he had already written so fully respecting the matters to which it related, that his approval only was necessary. The fact was, that that was by no means, the first time that the point adverted to in the opinion of the Attorney-general for Canada had been brought under the consideration of the Government. On the contrary, it had long been a question tinder discussion, and the opinion which the Attorney-general for Canada had formed was not confined to the law officers of the Crown, but was also held by individuals occupying high judicial situations in the colony. That opinion had for some time been before the Government, and had been submitted to the consideration of the law officers of the Crown in this country. A series of correspondence had taken place conveying the result of this consideration and contesting the validity of the opinion of the colonial authorities. The discussion continued for some months, and when he alluded in his answer to the despatch to what he had already written respecting the matters to which it referred, no one could doubt, that he meant the discussion between the law authorities of the colony and those of this country, who differed, and the latter of whom were supported by the opinion of the Government. It could not, therefore, be said, that the authorities in the colony were not aware of the opinion of the Government upon the subject, for the opinion had been in the strongest manner already communicated to them.
Lord Brougham rejoiced at having originated this discussion, if for no other reason, because it had been the means of drawing from the noble Duke opposite the solemn opinion which he had that night given upon the detestable warfare now raging upon the American frontier. He (Lord Brougham) felt quite sure, that the great name of the noble Duke, as well as the strong and powerful reasoning by which he had supported his opinion, would not be without their effect in America, but would eventually induce the Government of that country to arouse itself, and call upon its citizens to put an end to a system, which if they had not the power to repress, they
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could hardly be called a civilized community. There was no one who was more desirous than he of the prosperity of America, but he was anxious that the people of that country should see, that no difference, whatever, of opinion existed here, as to the proceedings now taking place upon the American frontier; all, including those who were the strongest advocates of the just claims of America, were entirely agreed upon this subject.
Motion agreed to.