Crime and Punishment

The Queen vs. Kelly

‘Shocking Murder’

It was on Good Friday, 9 April 1841, that John Kelly killed his brother-in-law Michael Hourigan.

Bytown Gazette, 15 April 1841

According to an account published in the Bathurst Courier, the two men had spent the afternoon drinking at Henry Smith’s brewery, where they had been overhead quarrelling “warmly” over a child, but had then seemed to make it up. After leaving the brewery in the late afternoon, however, John Kelly and Michael Hourigan got into a fight “on the road near Captain Bradley’s.”1 Kelly stabbed his brother-in-law several times with a knife, and the injuries proved fatal.

It was, in the words of the Bytown Gazette, a “shocking murder” and a “sad catastrophy.”

The fight took place “on the road near Captain
Bradley’s,” whose property is shown on this 1830
township survey.2

Who was Michael Hourigan?

Michael Hourigan was the son, and eldest known child, of Timothy Hourigan and Mary Lahey. Born about 1816, probably at or near Ballymacegan, in the parish of Lorrha, Co. Tipperary, Michael emigrated to Upper Canada in the summer of 1825, along with his parents and his siblings Mary and Patrick. Shortly after their arrival in Canada, the family met with grave misfortune when Timothy Hourigan was killed by the fall of a tree (an occupational hazard for early Upper Canadian settlers).

Me self, me brother, and brother in law settled and improved on it, until the following summer me brother in law was killed by the fall of a tree. The widow and three children fell in charge to us.

patt lahy to peter robinson

Mary (Lahey) Hourigan was now a widow with three young children, and with a fourth child on the way (Thomas Hourigan, born in February 1826). The unhappy circumstances of the family were later related by Mary’s brother Patrick Lahey in a letter to Peter Robinson, written in a desperate (and failed) attempt to prevent the Lahey family’s eviction from Lot 8, Concession 2 in March township:3

Sir. At my coming to this Country which is now four years this faul I stoped in the township of March and paid Frederick W. Richardson ten dollars for his goodwill of Lot No. 8 in said township the north west half. I could have sat on many a better lot that was vacant at the time. But he tol’d me as I was not able to pay for it that any other man could throw me out and he tol’d me it was a Crown lot and that he got provision of leave from John Burk and would make good same to me. But he having cut away all the oak was in a hurry to part with it. Me self, me brother (James Lahey), and brother in law (Timothy Hourigan) settled and improved on it until the following summer me brother in law was killed by the fall of a tree. The widow and three children fell in charge to us.

patt lahy to peter robinson

On 8 January 1826, Mary Hourigan submitted a petition to the Crown, asking for a piece of land for “the support of herself and her fatherless Children:”

Petitioner with her husband Timothy Horahan and children arrived in this Country in the year 1825, the 26th August, of which year her husband was killed by the falling of a tree whilst working for the support of his wife and large family, who have been left destitute by his death. Petitioner has four Children, 3 boys & 1 girl, one of whom was born six months after her being deprived of her husband. Petitioner most humbly begs that a lot of land may be assigned to her for the support of herself and her fatherless Children, her husband having been killed before his being located to any Land, and yr Petitioner shall ever pray. Mary X [her mark] Horahan.

petition of mary horahan
Petition of Mary Hourigan (here Horahan) 4

The petition was supported by a character reference, which certified “the deceased husband and his Widow to be persons of very good character and worthy of the Commiseration of His Excellency the Governor in Chief,” and which was signed by four members of the local elite, including Tory landowner and politician Hamnett Pinhey, and Captain John Benning Monk (under whom Denis Killeen had served in the 97th Regiment of Foot, and for whom he had worked as a “soldier servant” in March township).

The Widow Hourigan’s petition was successful; and in July 1827 she moved her family to Lot 19, Concession 2 of March township, for which she received a Crown patent on 24 February 1831.

In 1835, Mary (Lahey) Hourigan made a payment of £5 toward a piece of land for her eldest son Michael. Unfortunately, the record of this payment got lost, and it took Hamnet Pinhey ten years to recover the money. “The poor woman now seeking restitution of her money,” wrote Pinhey in March 1845, “is in great affliction — purchased this lot through me for her son, then a young lad, and just as he had become the support of his mother was by some ruffians most brutally murdered.”5 By the time she finally received a refund of her money, in July 1845, her son Michael had been dead four years, the victim not of “some ruffians,” but of his own brother-in-law John Kelly.


Who was John Kelly?

I know very little about John Kelly. He was born about 1813 in Ireland (county unknown), and was a resident of March township by 1838. Unfortunately, the record of his marriage to Mary Hourigan, daughter of Timothy Hourigan and Mary Lahey, and sister of Michael, does not supply the names of his parents.

Marriage of John Kelly and Mary Hourigan (here Horrigan), 20 August 18386

At his trial, he was described as a “shantyman,” which term might refer specifically to someone we would now call a “lumberjack,” but which might also be applied more loosely to an Irish labourer. The designation certainly suggests that he was not a farmer/landholder. Apparently some of his neighbours, not to mention his mother-in-law, thought he was a “dangerous character.”

Indeed, so concerned was his mother-in-law Mary Lahey, aka the Widow Hourigan, over Kelly’s propensity to violence that she took custody of his young daughter Ann, who was both her grandchild and her goddaughter.

Baptism of Ann Kelly, “aged 3 months,” 23 September 1839. Her baptismal sponsors were Michael
Nash and The Widow Hourogan (Hourigan).7

It was the Hourigans’ custody of the child Ann Kelly which led to the deadly altercation between the two brothers-in-law.


A Fatal Affray

Irish Labourer. Rideau Canal, Long Island on the Rideau River, August 1830,’ by J.P. Cockburn. Royal Ontario Museum

The following is based on an account published in the Bathurst Courier (28 May 1841), which enlivened its recital of the facts of the case with bits and pieces of boilerplate didacticism (much like the tabloid press of today).

On Good Friday, 9 April 1841, John Kelly arrived at Henry Smith’s brewery “between 9 and 10 o’clock” in the morning, and “stopt some hours there.” His brother-in-law Michael Hourigan (spelled Horrogan in the newspaper account) came to Smith’s brewery at about 2 o’clock in the afternoon. While there initially appeared to be “some coolness between them,” the two men “finally made it up over some beer, at the suggestion of Horrogan.” However, the truce was short-lived; and Kelly and Hourigan “got disputing warmly afterwards about a child” (two-year old Ann Kelly, daughter of John Kelly and his wife Mary Hourigan and granddaughter and goddaughter of Mary [Lahey] Hourigan) in the presence of Henry Smith the brewer.

they finally made it up over some beer…[but] got disputing warmly afterwards about a child…

After leaving Smith’s brewery (whether together or separately is not clear), Kelly and Hourigan were seen together by two witnesses, John Brennan and William Headley, both residents of March township. William Headley was apparently the first of the two witnesses to see the two men together, when he and his wife came by in a sleigh. Having been shown “a stab on the side of [the deceased’s] head, inflicted by the prisoner,” Headley urged Michael Hourigan to get into his sleigh. Unfortunately, Hourigan refused, stating that “he would have satisfaction;” and Headley and his wife drove on.

When John Brennan saw the two men, Michael Hourigan was ahead of John Kelly, “who seemed to be in a violent rage, with a knife in his hand.” Brennan was “afraid of prisoner, and kept out of his way, advising deceased to do so also, and go with him,” but Hourigan refused, “stating he would go back and fight Kelly.” Brennan saw Kelly stab Hourigan and knock him down, before jumping on him and “inflicting some further blows.”

After a struggle, Brennan succeeded in “wrenching the knife from prisoner,” while Hourigan fainted away. Brennan then went to his neighbour Morgan’s house for assistance, and was followed by Kelly, who was driven away only when Brennan “went into the stable and got a pitch-fork, threatening to stick prisoner if he would touch him.” Kelly “went off up the road, he had a stick in his hand.” When Brennan returned to the scene of the fight “about a quarter of an hour” later (and without neighbour Morgan, who was sick), he found Michael Hourigan lying dead.

At some point afterwards (it is not clear when, from the account given in the Courier), Dr. Hill, “a Surgeon in the township of March,” was called upon “to examine the wounds of the deceased.” Hill found four wounds, “the fatal one being a stab on the femoral vein, the others were but slight.” Hill testified that the deceased “could not have existed longer than 6 or 7 minutes after the fatal stab was given.”


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 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. How would these Scottish jurymen respond to the “not guilty” plea of an Irish Catholic labourer on trial for his life?

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.

he would willingly forfeit his life to have the life of one of his family connexions…

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

“The prisoner’s look,” declared 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.” This conviction of Kelly’s guilt, however, 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.

Bathurst Courier, 21 May 1841

In so doing, approved the Courier, 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 at Kingston. John Kelly entered the Provincial Penitentiary on 21 May 1841, as prisoner number 502, from the District of Bathurst, for the crime of Manslaughter, with a sentence of one year.

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 had awaited trial at the Bathurst District Gaol in Perth, his wife Mary had given 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.8

Baptism of Michael Kelly, 6 June 18419

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 was six weeks old, and his father John was three weeks into his one-year sentence for manslaughter at the penitentiary in Kingston. What an ordeal this must have been for John Kelly’s wife Mary.


Hard Times, Hard Labour

Charles Dickens visited the
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 very harsh experience indeed. Though touted as a model of the new, and more humane approach to punishment and rehabilitation — when Charles Dickens visited the 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, 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.”10

Postcard from the Dominion Penitentiary, Kingston, Ontario

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 John Kelly go next?


The Burial of Dame John Kelly

When I first started researching this story, I had no idea what had happened to John Kelly after his release from prison. Nor did I have any expectation of finding him, once I had determined that he had not returned to settle in March township. According to family lore, he had “gone to the States,” which certainly didn’t sound too promising. With a common surname like Kelly, and with the even commoner forenames of John, Mary (his wife) and Ann (his daughter), searching for this family in the American records seemed like looking for a needle in a haystack.

It was while searching for another record (unrelated to the Kellys and the Hourigans, as a matter of fact) in the parish registers for the Mission at Mattawa that I happened upon the burial record for Mary Hourigan, who was buried as  “Mary Horrigan, Dame John Kelly,” wife of the deceased John Kelly:

Burial of Mary Hourigan, widow of John Kelly, 13 August 190111

The discovery of Mary Hourigan’s burial record put me on a completely different tack (north rather than south), which led to the discovery of more records, which led to a significant revision of the story of John Kelly. Far from “going to the States,” John Kelly had remained in Canada (and in the Ottawa Valley region) with his wife Mary Hourigan, with whom he had had, in addition to daughter Ann and son Michael, another nine children.


John Kelly, Farmer & Hotel-keeper

Between about 1843 and 1862, John Kelly and Mary Hourigan had another five daughters and four sons. With the exception of Daniel (born about 1843, died August 1863), these children were all baptized at St. Alphonsus, Chapeau, Pontiac Co., Québec. In the 1861 census, the family can be found at Allumette (L’Isle-aux-Allumettes), Pontiac Co., where John Kelly is listed as a Farmer. By 1871, the family had returned to the Ontario side of the Ottawa River, to Deux Rivieres, Renfrew Co., where John Kelly was both a farmer and (as per the 1881 census) a hotel-keeper.

John Kelly died in December 1893, at about 80 years of age. He was buried at St. Lawrence RC Cemetery in Deux Rivieres.

From shantyman to convict to farmer to hotel-keeper … he had certainly led an interesting life! Did he feel any guilt and remorse, I have to wonder, over his brutal attack on his brother-in-law Michael Hourigan? And did John Kelly’s wife Mary remain in touch with her Hourigan family in March township? or had the fatal stabbing of 25-year-old Michael created an impossible rift within the family?


The Widow Hourigan

And what happened to the Widow Hourigan, and to her other two sons, Patrick and Thomas? Both sons married and had children, but both seem to have died fairly young (Thomas Hourigan certainly died before December 1857; and Patrick may have also died before that date). Their mother, on the other hand, lived on to a ripe old age.

Patrick Hourigan married Ann Teevens, daughter of Bernard Teevens and Mary McNulty, on 13 November 1848 (St. Philip’s, Richmond). On 14 September 1849, Ann (Teevens) Hourigan gave birth to twin sons, John and Thomas. By early 1852, as per the 1851 census, Patrick Hourigan was enumerated as a widower, and his sons were living with their maternal grandparents.12 I have not found Patrick in any later Canadian census records; and, given that his mother did not leave him any land, I suspect he died before December 1857.

Thomas Hourigan married Julia Moran, daughter of James Moran and Margaret Jamieson, on 13 May 1850 (Notre Dame, Bytown/Ottawa). The couple had four children, only one of whom married and had children (Margaret Amelia, who married Hugh Andrew Lunney in 1881). Thomas died circa 1857 (certainly by December 1857), at about 30 years of age.

Mary Lahey, aka the Widow Hourigan, lived the rest of her life in March township, first with her son Thomas and daughter-in-law Julia, and then (from at least 1861) with her nephew and godson John Lahey and his wife Margaret Jane Killeen. She died between 1871 and 1881.13

between mary horahan and julia horahan

On 10 December 1857, Mary Horahan [Hourigan], widow of Timothy, gave half of her 100-acre lot to her daughter-in-law Julia Horahan [Hourigan], widow of Thomas.14

Bargain and sale of land between Mary Horahan [Hourigan] and Julia Horahan [Hourigan]15

However, Julia (Moran) Hourigan would not own the land outright: instead, the land was to be held in trust for her eldest son James. James died in October 1870, at 17 years of age, and it was his younger brother Thomas who eventually inherited the land. When Thomas Hourigan died in 1899, he dictated a deathbed will in which he left his farm to his sister Margaret Amelia (“Mrs. Hugh A. Lunny”).

  1. Bathurst Courier, 28 May 1841
  2. Early patent plan of Huntley Township and March Township, ca. 1830. Archives of Ontario, RG 1-100-0-0-1037.
  3. Patt Lahy to Peter Robinson, 10 July 1828. March Township, Township Papers (ca. 1783-ca. 1870), Ontario Crown Lands Department
  4. Library and Archives Canada, RG 1, L-3, vol. 233, Canada Land Petitions, H bundle 15, 1827, no. 15
  5. Hamnett Pinhey to T. Bouthillier, 1 March 1845. March Township, Township Papers (ca. 1783-ca. 1870), Ontario Crown Lands Department
  6. Ottawa, Notre Dame of Ottawa, Baptism, Marriage, Burial, Confirmation; Ottawa; 1825, 1829-47. Database, Ancestry.ca, Ontario, Canada, Roman Catholic Baptisms, Marriages, and Burials, 1760-1923
  7. Ottawa (basilique Notre Dame/Notre Dame Basilica), Register of Baptisms, Marriages and Burials, 1836-1840. Database, Ancestry.ca, Ontario, Canada Catholic Church Records (Drouin Collection), 1747-1967
  8. Did Mary (Hourigan) Kelly name her son after her brother Michael, the brother that her husband had so recently killed?
  9. Ottawa (basilique Notre Dame/Notre Dame Basilica), Register of Baptisms, Marriages and Burials, 1841-1844; database, ancestry.ca, Ontario, Canada, Catholic Church Records (Drouin Collection), 1747-1967
  10. Maclean’s, 24 September 1960
  11. Mattawa, Ontario, Canada, Ontario; Canada, Roman Catholic Baptisms, Marriages, and Burials, 1760-1923, Ancestry.ca.
  12. Did Ann (Teevens) Hourigan die in childbirth in 1849, I have to wonder? There is no burial record.
  13. After the 1871 census enumeration, but before the 1881 enumeration.
  14. Technically/legally, she sold the land to her daughter-in-law, but for the sum of a mere 5 shillings, so effectively a gift. While she had originally been granted a 200-acre lot, in 1838 Mary Hourigan had sold 100 acres to her nephew Edward Fahey.
  15. Dated 10 December 1857; registered 21 December 1857. Land records of the townships of Carleton County, 1819-1977, March Township (v. F1, 3296-28447, 1-48) 1847-1869; (v. 616, 3292-48) 1847-1869, FamilySearch.