John Prince

A look at the prominent local historical figure’s defence
​of the 1st Earl FitzHardinge

Written by Mitchell Harris 

John Prince

---

If you take a walk through Bellevue Park on a hot summer day, you will likely encounter something seemingly out of place among the vibrant, buzzing life of the playgrounds, the green fields, the river and the ponds: a lone gravesite. A few feet away, a plaque erected by the Ontario Archeological and Historic Sites Board will inform you that this is the final resting place of the “colourful and eccentric” John Prince (1796-1870), the first Judge of the Algoma District who lived in Sault Ste. Marie between 1860 and 1870.

The young John Prince

John Prince: Early Life
​
John Prince was indeed a colourful and eccentric figure of Sault Ste. Marie's history. Born to a wealthy family in Hereford, England on March 12, 1796, he used inheritance money left by his paternal grandfather to study law at Oxford in 1815. Possessing a talent for the legal profession, he graduated from Oxford in 1821 and joined the law firm of Thomas Holmes Bosworth in Westerham, becoming a senior partner within two years.
​
He married Mary Ann Millington in London in 1823 and relocated his family to Cheltenham, joining the law firm of Joseph Cooper Straford as a junior partner. Prince’s biographer, Alan Douglas, speculates that Cheltenham, a spa town known for its natural mineral baths, was the ideal place for Prince to attract business from elite aristocratic families who settled there after King George III popularized the town with a visit in 1788, and who often found themselves in trouble with the law.

As solicitor and attorney for Straford and Prince, it was Prince’s job to find new clients, research cases, write legal documents, file motions and prepare arguments for trial. It was in 1825 that Straford and Prince would defend Colonel William FitzHardinge Berkeley in an assault case that tied together many social, political and juridical issues of the time such as class inequality, freedom of the press, vigilantism, provocation as a defence, and the treatment of women in English society. It was Prince’s biggest case to date.

Colonel Berkeley

The defendant, William Berkeley, was the first son of Frederick Berkeley, the 5th Earl of Berkeley. However, due to insufficient evidence of his parents’ marriage at the time of his birth, the Committee of Privileges passed over William for the inheritance of his father’s title, and instead bestowed it upon Frederick’s seventh child, Thomas, ten years William’s junior.

William was not left empty-handed, though. After his father’s death in 1810, he inherited several of his father’s estates in Gloucestershire, including Berkeley Castle, as well as a yearly salary of £20,000 (CAD $4.8 million today). He also became Colonel of the Royal South Gloucestershire Light Infantry Militia.

Col. Berkeley continued to fight a legal battle for his right to inherit his father’s title. It was during this time that he met Maria Foote, an actress in Cheltenham. According to various reports, Col. Berkeley was immediately enamoured with Foote, showering her with gifts and funding her extravagant theatre performances to sold-out crowds.
​
Following English social customs at the time, Foote wanted to be married before starting a family with the Colonel. However, there was a problem with this plan: Col. Berkeley’s marriage to Foote could weaken his case for inheritance of his father’s title. Because of this, the Colonel promised to marry her after the inheritance matter had been decided. With the Colonel’s promise of eventual marriage, Col. Berkeley and Foote started a family together.

As Shakespeare said, the course of true love never did run smooth. Shortly after having his children, the Colonel began to withdraw his affection from Foote. A few months later, they had become estranged.

The scandal caused by Col. Berkeley’s love games with Foote became a hot topic of newspapers in Gloucestershire and beyond, and the Colonel, often the villain in these articles, was not treated with the respect he thought he deserved as a man of his rank. Thus he began plotting his revenge.

The Horsewhipping of Jasper Tomsett Judge

According to court documents, a vicious attack took place on the afternoon of March 14, 1825. On this day, a man appeared at the home of Jasper Tomsett Judge, the editor of The Cheltenham Journal, a newspaper that had been particularly outspoken about Col. Berkeley in recent months. The man informed Judge’s maidservant in the doorway that he had a letter to deliver to Judge. He was welcomed in, and that is when the man overpowered the maidservant and held the door open so that Col. Berkeley and another man, hiding around the corner, could invade the home.

The three men found Judge in his study room. Locking the door behind them, Col. Berkeley produced a horsewhip and began lashing the defenceless Judge. The Colonel’s accomplices cheered him on and prevented Judge’s escape. All the maidservant could do was listen in horror to Judge’s screams through the locked door.

In English society of the nineteenth century, horsewhipping was a common revenge meted to newspaper editors who crossed the wrong people. A similar case had recently occurred in Brighton, where the son of an Earl horsewhipped an editor in the street for negative remarks published in his newspaper. “The punishment of the horsewhip,” the defence counsel in Judge v Berkeley would argue, “is a good, old, English, legitimate mode of punishment.”

The horsewhipping of Judge, however, was much more brutal than any of its precedents. Col. Berkeley repeatedly lashed Judge over his body and face until his lip split in half and his eye and cheek were cut through to the bone. Judge was covered in his own blood, as was the sofa on which he had been sitting and the floor and walls around him.

The two accomplices eventually had to restrain Col. Berkeley so that he did not accidentally kill his victim.

When they ceased their initial attack and unlocked the door, Judge attempted to run up a staircase to escape. This angered the three men. Another round of lashing commenced in the foyer, this time in front of the maidservant, who fainted.

The two attacks lasted a total of fifteen minutes. Judge, beaten within an inch of his life, was unable to leave his bed for two weeks. Doctors came to check on Judge three times a day: one prescribed twelve leeches to lessen the swelling around his eyes and temples, and an oculist informed Judge that he might never regain full sight in his injured eye.

Judge v Berkeley

Five months later, Judge brought a charge of assault against Berkeley and his unknown accomplices. Judge sought 5000 pounds in damages (CAD $1.2 million today). A pretrial motion written and signed by Prince identified two elite men, Lord Sussex Lennox and Robert Carr Hammond, as Col. Berkeley’s accomplices
in exchange for the plaintiff dropping his charges against those men. Thus, Col. Berkeley was the sole responsible defendant.

The assault trial of Col. Berkeley was heard by Justice James Burrough and ten male jurors on August 4, 1825, in Hereford, Prince’s hometown. While Prince was physically present at the trial, he did not lead the defence (in fact, his only appearance in the court proceedings are two terse, disorderly interruptions of the plaintiff's attorney’s closing argument). William Elias Taunton, who would later be knighted and appointed as a justice of the King’s Bench in 1830, took up this task on behalf of Straford and Prince.

In his opening statement, the plaintiff’s attorney, Charles Phillips, told the jury: “You are today to decide upon a great general principle, whether our homes are sacred, whether our persons are to be secure, or whether we are to prepare and arm ourselves against every atrocious confederacy which may set the laws at defiance.”

Among the plaintiff’s witnesses were Judge’s maidservant, his doctors and oculist, and a Cheltenham saddler, who testified that two men resembling Lennox and Hammond came to him the morning of the attack, looking to purchase the heaviest horsewhip in stock.
“I ask you,” Phillips said to the jury, “shall their [Berkeley and his accomplices’] fortunes become the passports to crime? Shall they elevate them into village tyrants? Shall they expose our persons to their violence, and our houses to their intrusion? Shall it give them a power which even the Sovereign possesses not?”

The plaintiff’s case was strong: there was no denying the assault, the identity of the assailants, and the severity of Judge’s injuries. The defence of Col. Berkeley had a lot to answer for.

Taunton began his defence by acknowledging the severity of the Colonel’s assault. “I do not mean to say that the horsewhipping in this case was not a severe one. It was undoubtedly, the occasion called for it, and I say, severe as it was, there was nothing excessive in it. All I can say is that this chastisement was deserved and that Mr. Judge has only himself to thank for it.”

Why did Judge deserve to be assaulted? According to the defence, it was because between January and March 1825, The Cheltenham Journal published no less than eight pieces slandering Col. Berkeley. Four of these articles denigrated the Colonel over his relationship with Foote, two vilified the Colonel’s mother for the circumstances of his birth out of wedlock and the Colonel’s subsequent inheritance dispute, and two ridiculed the annual Berkeley Hunt Ball of 1825, organized by Col. Berkeley, for its lack of attendance by women, who had caught on to the Colonel’s nefarious ways.

In the words of defence witness Samuel Young Griffith, proprietor of the rival Cheltenham Chronicle, “No Englishman could allow such scurrilous articles to pass unnoticed.”

“Berkeley acted – I won’t say legally – but under galling provocation at the moment, and under feelings irritated almost to madness by reiterated insult,” the defence argued.

Among the defence’s witnesses were William Whitehead and William Hughes, the owners of The Cheltenham Journal, John Hadley, a printer in Cheltenham, and Thomas Davis, a former friend of Judge.
Whitehead and Hughes both testified that they reproached Judge for his articles on Col. Berkeley and warned him that if he did not stop, they would both quit the newspaper. Judge was apparently unmoved

by their concerns, informing them that he could continue the newspaper with his friends if they left. Moreover, Judge said he had a “duty” as editor to publish articles on Col. Berkeley that exposed the truth of his antics.

They also warned Judge that the Colonel might come looking to beat him, to which Judge allegedly flexed his muscles and asked them candidly if the Colonel could match him physically.
“Judge behaved altogether so ungentlemanly,” said Hughes, “that I could not have anything to do with such a man as that.”

Davis alleged that Judge once asked him “Why does not Col. Berkeley behave like a man and send me a couple of hundred pound notes?” to stop Judge from writing more defamatory articles in the Journal.
In summary, the defence claimed Judge wanted to be assaulted by Col. Berkeley so that he could make money from bringing a lawsuit against him. Taunton said Judge’s “system of defamation” was motivated not by duty but by “a base and filthy motive of getting money,” extorting the Colonel for his own financial gain.
Phillips, in his closing argument for Judge, called the defendant’s case “base, disgusting, unfeeling and unnatural” and “falsehood upon this subject.”

“Mr. Taunton, in the most extraordinary speech that it has ever been my misfortune to hear in a court of justice, seems to me as if he gloried in this breach of the law,” said Phillips. “Gentlemen, undoubtedly editors are answerable for what they publish, but to what? Are they not answerable to the laws of the land? Is it to the bludgeon of any assailant that they are answerable? Do you wish to set that principle afloat? Do you wish to give any man who fancies himself provoked, or who is provoked, a privilege to murder the aggressor?”

“The laws against the press are severe enough, God knows, and Col. Berkeley, if he were a man of fifty times his birth and fortune as he is, has no right to usurp the prerogatives of the laws, and to take the administration of justice, or of vengeance, as in this case it was, into his own hands.”

“Is it to be told to the populace of this place that it was right for Col. Berkeley thus to treat a defenceless inhabitant of Cheltenham? But it is not law, Gentlemen, it is not morality, it is not virtue, and I trust in God your verdict will afford no corroboration to such an assertion this day.”

Before sending the jury to deliberate, Justice Burrough remarked “Col. Berkeley had no right to take the cudgels into his own hands.” He continued, however, “Some allowance must be made for human frailty, because it would be different if they had done the same thing coolly and deliberately.”

The jury took one hour to deliberate and returned to the court with their findings: Col. Berkeley was indeed guilty of assaulting Judge, but this was mitigated by Judge’s provocation of the Colonel in his newspaper. Thus, the damages awarded to Judge would be 500 pounds (approx. CAD $94,000 today), 10% of what Judge was seeking.

Prince’s Later Years

Was this justice served, or justice denied? Readers can decide for themselves. One thing is certain, however: a mitigated sentence was a victory for John Prince and his law firm, who now found themselves
in the good graces of the powerful Berkeley family, a family that could cover the costs of the damages awarded to Judge without issue. Even Phillips, Judge’s attorney, took notice of Prince’s talent for the legal profession, calling him “an industrious and zealous solicitor.”

In many ways, Judge v Berkeley shares parallels with a major event of Prince’s life in Canada. Prince moved to Canada in 1833, and in December 1838, while crushing a rebellion near the Detroit River as Colonel himself of the 3rd Essex militia, Prince ordered the summary execution of five prisoners of war.* It is no surprise that Prince, the son of a wealthy father and attorney of the wealthy Colonel Berkeley, found himself fighting on the side of Upper Canada’s rich and powerful oligarchs against republican rebels who were inspired by the recent American, French and Haitian revolutions and their ideals of freedom and equality. Furthermore, by executing captured prisoners, Prince, like Colonel Berkeley’s assault of Judge, demonstrated an eagerness to take the law into his own hands against transgressors, acting as judge, jury and executioner all by himself.

---

Prince’s residence in what is now Bellevue Park

---

​Surely, this is not the correct comportment for judge tasked with upholding law and order, no less the inaugural judge of the Algoma district. Today we ought to remember that history, even local history, does nothing by itself; it is real, living people who make it what it is. Yes, it can be said that John Prince was a “colourful and eccentric” figure of Sault Ste Marie’s past. But perhaps it is time to ask what these words mean, and whether or not we should continue using them to describe the man of the events recounted here.


* The plaque in Bellevue Park says four prisoners were executed, but his biographer, Alan Douglas, says five.

Sources:
Chauvin, Francis. "Independent Spirit of Late Col. Prince Revealed." Border Cities Star, 4 July 1925: 3.
Douglas, Alan R., ed. John Prince: A Collection of Documents. Toronto, ON: The Champlain Society, 1980.
Judge v Berkeley (1825) Hereford: S. C. Harper.