The Queen vs. Kelly: Part Two


The Queen vs. Kelly


John Kelly stood trial for the murder of Michael Hourigan  on Thursday, 20 May 1841. The case of The Queen vs. Kelly was tried at the Bathurst Assizes, at the original Bathurst courthouse in Perth, Lanark County, Upper Canada (now Ontario). Kelly entered a plea of "not guilty."

Judge Jones
Judge Jonas Jones, Court of Queen's
Bench, presided over the Bathurst
Assizes at Perth
The Grand Jury at the May 1841 Bathurst Assizes was composed of the following men: G. Lyon (jury foreman); John Haggatt; W.R.F. Berford; Joshua Adams; G.H. Sache;Edward Malloch; Thomas Reed; George Tennant; Ebenezer Wilson; Doctor Barrie; John Richey; Anthony Leslie; Alexander Fraser; John McNaughton; John Ferguson; and Joseph Maxwell. Given the demographics of early Perth, it’s not surprising to find that many of these names were Scottish.

The Queen’s Counsel was a Mr. Cartwright; the counsel for the prisoner was Daniel McMartin, a prominent early Perth lawyer of Loyalist origins. Witnesses for the prosecution were  John Brennan; William Headley; Henry Smith; and Dr. Hill. There were no witnesses for the defense.

As reported by the Bathurst Courier, there are a couple of things worth noting about the testimony given at John Kelly’s trial.

First, the Crown witnesses all offered damning testimony of past threats, and of threats overheard on the day of the fatal stabbing. John Brennan testified that Kelly had previously made “threats against the lives of some of his connexions.” On cross-examination, he clarified that “the prisoner, in his threats, did not mention deceased in particular, but the Horrogans [Hourigans].” William Headley “stated prisoner was a dangerous character, he took an axe to kill witness's brother, some time before.” Henry Smith, the brewer, “heard prisoner say he would willingly forfeit his life to have the life of one of his family connexions.” And Dr. Hill, the surgeon, testified that he had “heard of some threats having been used unless they [i.e., John Kelly’s Hourigan-Lahey inlaws] would give up his child.”


Second, in his defense of Kelly, Daniel McMartin apparently took care to establish that the carrying of a knife was not in itself unusual, and therefore not a sign of criminal intent. Thus, when cross-examined by McMartin, John Brennan, who “had worked with prisoner,” admitted that “it was common to use case knives in shanties for eating with, similar to that produced, each man had his own knife.” Henry Smith also testified that “such knives as that produced, [were] commonly used by shanty men.” Presumably McMartin was concerned to convince the jury that Kelly did not seek out his brother-in-law with the intent to kill and with a murder weapon in hand, that he had not acted with malice aforethought, in other words.

The Verdict

dominion penitentiary
Postcard from the Dominion
Penitentiary, Kingston, Ontario
"The prisoner’s look," opined the Bathurst Courier, "was not better than his character, it certainly had a tendency to create the conviction of his guilt in the minds of all who beheld him." However, this conviction of Kelly’s guilt was apparently not shared by the men who sat on his jury. While the Crown had sought a murder conviction, the jury returned a verdict of manslaughter.

In so doing, wrote the Courier approvingly, the jury had followed “that humane maxim of the British law, to lean toward mercy, where there may be room for a doubt.” Presumably the jury had been swayed by the eloquence of Daniel McMartin, who had “addressed the jury at some length, in a manner highly creditable to himself, and becoming to the important occasion, when life or death were at issue.” They may have also, and more specifically, been influenced by McMartin’s emphasis on the knife as a commonplace item carried by all shantymen.

In any case, John Kelly was spared the death penalty. Instead, he was sentenced to twelve months of hard labour at the penitentiary. John Kelly entered the Dominion Penitentiary at Kingston on 15 May 1841, as prisoner number 502, from the District of Bathurst, for the crime of Manslaughter, with a sentence of one year.

return of convicts
Return of Prisoners received into the Provincial Penitentiary in the year ending 1st October, 1841,
Appendix H, Appendix to the Second Volume of the journals of the Legislative Assembly of the
province of Canada, Kingston, HMSO, 1842.

The Birth of Michael Kelly

As John Kelly awaited trial at the Bathurst District Gaol in Perth, his wife Mary gave birth to their second child. Michael Kelly was born 25 April 1841 (presumably at March township); and was baptized 6 June 1841 (Notre Dame, Bytown), with Michael [Baird?] and Judah Whelan serving as godparents.

michael kelly
Baptism of Michael Kelly, 6 June 1841. Ottawa (basilique Notre Dame/Notre Dame Basilica), Register
of Baptisms, Marriages and Burials, 1841-1844; database,, Ontario, Canada, Catholic Church
Records (Drouin Collection), 1747-1967.

Michael Kelly was baptized conditionally, which indicates he had already been privately baptized at home, perhaps by an anxious mother or other relation who did not expect the child to live. In any case, at the time of his official church baptism, Michael Kelly was six weeks old, and his father John Kelly was three weeks into his one-year sentence for manslaughter at the Dominion Penitentiary in Kingston.

Hard Times, Hard Labour

american notes
Charles Dickens visited the Dominion
Penitentiary at Kingston on 7 May 1842, at
which point John Kelly was one of its inmates
While we don’t have any details specific to Kelly’s one-year confinement in the penitentiary, we can assume it was a harsh, if not hellish experience. Though touted as a model of the new, and more humane approach to punishment and rehabilitation — when Charles Dickens visited the Dominion Penitentiary in 1842, he described it as "an admirable gaol,…well and wisely governed, and excellently regulated, in every respect" — the new prison at Kingston was governed by a warden who was as sadistic as he was corrupt. Henry Smith, the first warden of the penitentiary, charged admission for tours of the facility, and "he made sure his patrons got a good horror show." According to Don Townson's account of Kingston’s sadistic Warden Smith (Maclean's, 24 September 1960), the prison tours included "a visit to the dark cell and a leisurely march past convicts being punished with the lash, the ball and chain, the Oregon boot, the water hose and the sweat box." Smith meted out harsh physical punishment to children as young as ten years old, for such offences as "staring, winking, and laughing."

Smith's reign of terror came to an end in 1848. When the penitentiary physician, Dr. James Sampson, laid charges against the warden, Smith "resigned under fire" after an investigation into his abuses.

Whatever punishments and privations he suffered during his year of hard labour, John Kelly certainly survived the ordeal. Kelly was released from prison on 21 May 1842, as prisoner number 502, from the Bathurst district, at which point he was described as 29 years of age, 5 ft 11 inches in height, with a “sallow complexion,” blue eyes, and brown hair. Upon release, Kelly was given a "Travelling allowance" of 18 shillings and 4 pence.

Where did he go next?

Go to Part One. Go to Part Three.

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