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Crooked Methods & High Contempt — The Kennedy newspaper scandal of 1892

October 5, 2013

On April 12, 1892 two stalwart men of British Columbian law enforcement boarded the ferry Surrey at the New Westminster wharf below Fourth Street,  watching warily the passengers disembarking. Frederick S Hussey and William Moresby were no plodding constables, but the two most respected lawmen in the Province.
Hussey was Chief Superintendent of the provincial Police, based in Victoria; Moresby was Governor of the provincial jail at New Westminster and  the most accomplished and highly respected investigator on the Mainland.
These two heavyweights were not on the lookout for murderers or Fenian extremists: their quarry was a couple of aproned and ink-stained newspapermen, the Kennedy Brothers, publishers of The Columbian.
Robert Kennedy and his brother James M Kennedy were being hunted down on a warrant issued by the Speaker of the Legislature,  charged with  "a scandalous libel" of  elected members and "high contempt" of the assembly.

As the ferry angled downstream toward the South Westminster landing, the Fraser River was crowded with small crafts of fishermen trying their luck on the first open day of the oolachan run.  The day before, Hussey had visited the offices of the Columbian,  but the brothers had given him and his deputies the slip. Now with the aid of Governor Moresby, he was headed over to the Kennedy farm, up the Scott Road, to try to catch them at home.

Outrageous Presumption

British Columbian - Kennedy BrosThe second session of the sixth Parliament of British Columbia had begun quietly enough and in workmanlike manner, on January 28, 1892.   However, on St Patrick’s day an article was published in The Columbian newspaper at New Westminster that would divert the attention of the House, provoking hours of debate,  generating dozens of  columns of editorial opinion,  making outlaws of a couple of newspaper publishers, and fermenting public opposition,  before rising to a dramatic conclusion in late April with the arrest and imprisonment of the Kennedy Brothers,  James M Kennedy and Robert Kennedy.

At issue was a proposal for a tram line between Vancouver and New Westminster, to compete with one recently opened up.  A committee of the legislature decided that it would not serve the public interest and this aroused the ire of the Kennedys.  On March 17th, 1892 they wrote a provocative leader, under the heading “Outrageous Presumption,” criticising the committee. An excerpt:


"The conduct of certain members of the House — to wit, the Attorney-General and a majority of the Private Bills Committee — in the matter of the charter which has been applied for by the Twin Cities Railway and Telephone Company, for power to construct and operate an electric or steam railway line and also to construct and operate telegraph and telephone lines, between the cities of Westminster and Vancouver, has been, since the very introduction of the bill, a scandal and an outrage on free institutions and pure government, if, indeed, these can be mentioned in the same breath; and the acme of rottenness and impudence was reached on Tuesday last, when the Private Bills Committee reported to the House that they had decided not to grant the petition of the Twin Cities Railway and Telephone Company.
The history of the treatment of this bill and others for a like purpose, so far, in the House, if read between the lines ever so cursorily, throws a perfect glare of light upon the dark and devious ways and crooked methods pursued in such matters, where unscrupulous politicians are induced, by the most questionable means, to make private and monopolistic interests paramount over all considerations of right principles or the public welfare."


The Columbian alleged the  Attorney-General had a personal bias against the proposal and had sent the matter to the committee "for mock trial and private strangulation."

 

Raising umbrage: "a question of privilege."

The article went off in the Legislature on March 22nd, when Mr Martin rose on a question of privilege.  He claimed the editorial "was the most offensive insult the House had ever been subjected to."  It was

"a tissue of falsehoods from beginning to end, and from the very nature of the serious charges made therein was calculated to heap great discredit on the Private Bills committee, and send abroad to all the world the impression that the members of the Legislature of the Province of British Columbia were a set of scoundrels who had their price and could be bought, and as a matter of fact, were bought."

Other members were roused to their feet to condemn the piece.

Dr Milne:  "the Columbian article [was] one of the most impudent and insulting he had ever seen."
Mr Hunter:  "one of the grossest and most disgusting libels ever perpetrated on any one."
Mr Eberts, a member of the committee:  "it was one of the most libellous articles he had ever seen. The man who wrote the article was a coward, and the man who prompted him was a coward. If the House was not protected, the paper might write even worse articles."

Members believed the undisguised suggestion was that the committee men were politicians who would take bribes.

Premier John Robson  called the article a "gross breach of privilege."
 
"It was the pride of this House that it was prepared, when a matter of this kind came up, to cast aside party lines and political differences, and all the members were prepared to stand shoulder to shoulder against any person, it made no difference who it was, who should be guilty of such a gross outrage as had just been reported to the House."

Robson, former publisher of The Columbian,  moved, seconded by the Attorney-General, Mr Davie:

"That the attention of this House having been directed to a leading article appearing in the Daily Columbian newspaper, published on Thursday, the 17th March, 1892,  intituled "Outrageous Presumption;"
Resolved, That in the opinion of this House the said leading article is a scandalous libel against certain Members of this House, and is a high contempt of the privileges and of the constitutional authority of this House, and it appearing that the said Daily Columbian newspaper is published by James M. Kennedy and Robert Kennedy, both residents of the City of New Westminster;
Be it further resolved, that the said James M. Kennedy and Robert Kennedy be summoned to appear at the bar of this House on Tuesday next, the 29th day of March, inst., at the hour of two o’clock, P.M., to answer for the said scandalous libel and for the contempt aforesaid."

This motion passed with 22 members voting for — including James Punch of Brownsville,  a sitting government member for New Westminster district. 

Cat’s-paws and reflexes

Some Opposition members supported the bill at this point, including Thomas Keith of Nanaimo, the first "labour" member elected in the province. Keith was a member of the committee and felt the article was "a most gratuitous insult . . .unfair, unjust and cowardly," even though the Columbian exempted him from criticism.  Mr Keith later withdrew his support of the motion, prompting bitter recriminations from the Government side.

Only six were opposed to this summoning of the Kennedy Bros, most notably JC Brown, the member for New Westminster City.  Brown was also City alderman and Postmaster. 

In the debates which followed over a period of many weeks, it was suggested more than once that JC Brown was the real author of the article, the publishers being mere "catspaws" in the controversy.  Mr Brown defended the article as "simply a reflex of popular opinion."

In retrospect, the most rational argument was stated by Charles Augustus Semlin, who stated his opposition to the motion at the beginning.

"Mr Semlin did not think the article was at all well-advised; but he thought too much was being made of it. Equally hard articles had been written before, and equally hard articles were today seen in many of the newspapers of Canada. He advised the members of the Private Bills committee to be above fear and above reproach, and no harm would come of such attacks upon them as this. There was such a thing as going to the other extreme now, and making a martyr of the editor who had offended."

Semlin was a member of the committee but only the only other, with Keith,  to be reserved from criticism by the Columbian.

Mr Carter-Cotton,  MPP and a newspaperman, did not seek to palliate the offensiveness of the article, but cautioned that "the House would regret hasty action."  He himself was lately called "a liar and a sneak," but he  would be kept busy forever, calling editors to the bar, if he responded to each such insult thrown his way.

Such reasoning attracted lofty scorn from the Attorney-General, Mr Theodore Davie–

"Much better would it be for them to advocate that every man in the penitentiaries should be turned loose than that the offenders against the honor and integrity and character of their fellow-men should be allowed to escape punishment."

It appeared that satisfaction must be had and the course was set.

Emotions ran rampant over this matter, consuming columns of news and editorial comment regarding these "insinuations of boodling" in all the newspapers of the province, and prompting hyperbolic exchanges from all sides, inside and outside the House.

The original issue raised by the Kennedys — the tramway — was lost sight of, and soon also, for some, the issue of libel or fair comment was left behind.

The action taken was by the House, as an affront to the integrity of its members, but to the Kennedys, and indeed many of the public,  the issue became one of freedom from an overbearing and repressive government. Hundreds of citizens at  New Westminster were rallied to form an alliance with their embattled local publishers and raised a considerable sum of money to fund their defence.

 

A fearless press — publishers on the lam

By the motion of the Legislature, the Kennedys were summoned to appear before the House on March 29th, 1892.  They successfully evaded a direct receipt of the summons and went into hiding,  prompting much speculation as to their whereabouts, some saying they had fled across the frontier to the United States.

The Colonist newspaper noted great interest among the public. "This unusual excitement will, in all probability, draw full galleries at the Legislature today."

When the Kennedys did not show up in Victoria to answer for themselves, further action was taken by the House, which in the meantime had taken pause to consider the right course of procedure.

"Be it therefore resolved that the matter of the scandalous libel and contempt be referred to a select committee. . .with the power to call for persons, books and papers and to report to the House from time to time."

This motion passed, but with a reduced majority from the original resolution, with 11 members now opposed to any further action against the Kennedys.

The government next discovered that the powers, privileges and immunities of members of the House which it sought to defend had never before been articulated in legislation, and it devised a bill to define the rules which the Kennedys had transgressed.

Bill 71, "An Act respecting the Legislative Assembly," was introduced by the Attorney-General on April 1st, 1892.

With some doubts raised as to the constitutionality of the bill, and whether it could be applied retroactively, the bill passed third reading on April 7th. 

(It is not reported that the Act received Royal Assent on this date, and in reports of Acts reported as receiving Royal Assent on the closing day of this session, Bill 71 is not on the list.)

The Columbian, meanwhile, relishing its role as underdog-on-high, was unrelenting in asserting its rights.

"Much better, particularly at such a time as the present, when, in a free and fearless press appears the only salvation for the country as against the flood of political corruption and unscrupulousness that threatens to submerge it, that the press should be too outspoken, if possible, than that it should be reduced to a mere sycophantic machine that should only dare squeak when the Grand High Russian Censor pulled the strings."

Wanted Kennedys – a city wild with excitement -  Hussey &  Moresby on the hunt

On  Saturday, April 9, 1892 the select committee of the House presented its report to the legislature, recommending:
"that the House proceed against the said James M Kennedy and Robert Kennedy, for the said scandalous libel and contempt."

One member of the committee, Mr Thomas Forster, the second labour member for Nanaimo — who continued to represent that constituency after taking up a homestead at Tynehead in Surrey –  rose to state that while he approved of the report coming before the House, he thought the matter should now be dropped.

Following receipt of the report, the Attorney-General moved, before the House —

"Be it resolved in pursuance of the recommendation of a Select Committee of this House, that James M Kennedy and Robert Kennedy, both of the City of New Westminster, be summoned to personally appear at the bar of this House, on Tuesday, the 12th day of April instant, at the hour of 2:30 o’clock p.m., to answer as to a certain article appearing on Thursday, the 17th of March, 1892, in The Daily Columbian newspaper (where it is stated that the said Robert Kennedy and James M Kennedy are the publishers) entitled, ‘An Outrageous Presumption,’ which article is a scandalous libel upon certain members of this House."

This resolution passed with a count of 22 for, to 9 against.

No time was wasted in taking action.  Immediately a telegraphic summons was despatched by Provincial Police Superintendent Hussey to Deputy Sheriff Armstrong at New Westminster and promptly served on the Kennedys at the premises of the Columbian.  But next morning when Hussey arrived at New Westminster to serve the Kennedys personally, they evaded him, as he did not recognize them.  Hussey returned with the local Governor of the Provincial Jail, Mr Moresby,  but the Kennedys were no where to be found.

From press reports —
"It is rumoured that, taking legal advice, they have determined to evade summons, and have taken train for the South, till the House prorogues. In this manner they expect to  give the whole affair a twelve months’ ‘hoist.’  Superintendent of Police Hussey, with his posse, hold the fort today. The excitement is intense."

"The city is wild with excitement, to-night, over the Kennedy affair. . ."

Acting on a tip, or a hunch,  that the Kennedys were hiding out at the family farm, Hussey and Moresby boarded the Surrey ferry and made for the South Westminster landing.  They returned to the City empty-handed.

On Monday, April 12th at 2:30 p.m, at the time appointed for the Kennedys to appear, the Speaker took the chair and instructed the Sergeant-at-Arms to call three times outside the House for James M Kennedy and Robert Kennedy. 

He was informed the Kennedys were not here. 

Accordingly, the Attorney-General moved that the Kennedys in failing to appear, were "guilty of a contempt," and that a warrant be issued for their arrest.
This resolution passed with a vote of 20 to 10.

During their time on the lam,  the Kennedys were interviewed in hiding  "in the quietest retreat your reporter ever longed to get away from."   The Kennedys stated "we are not seeking notoriety, simply justice for ourselves, and license for the provincial press. We evaded arrest to suit our personal convenience."

The Colonist newspaper declared the Kennedys "not heroes," and the Daily World stated they "have been posing as martyrs of the press."  Both newspapers thought they should honor the summons and appear before the legislature.

Meanwhile in New Westminster a thousand people showed up at a rally to show support for the embattled publishers and declare that "we consider the action of the Government, in this matter, to be directed against the people as well as against them."

 

Tired of life on the run —  the Kennedys in custody

On April 19th the Kennedys appeared before Governor Morseby of the Provincial Jail and offered to give themselves up to the Speaker’s warrant. Victoria was notified and the next day a deputy officer for the Sergeant-At-Arms of the Legislature arrived to take them into custody. After one night at the Provincial Jail they  appeared before the legislature on April 21.

Bar of the House - BC LegislatureQuestioned by the Speaker of the House, James M Kennedy in reply read a prepared statement that the House, at the time the article was written,  "had no jurisdiction to punish as for contempt for the publication of an alleged libel committed out of doors." Nor could the "Legislative Assembly Privileges Act, 1892" enacted after the alleged libel, be applied retroactively. In addition the Kennedys believed their article was fair comment, in that they believed the public interest was better served by competition in the tramways between Vancouver and New Westminster, and neither did they "make any personal charges against any of your committee, or any member thereof, or against any member of your Honorable House."

The Attorney-General moved that the Kennedys, having been convicted of a contempt of the House,  remain in custody overnight and be brought to the Bar the next day at 11 o’clock a.m.

Debate on this issue continued until 6 o’clock p.m. and after a two hour break resumed in the evening and continued until well past midnight.  Opposition arguments to the measures were based mainly on the issue of freedom of the press.   A vote was called shortly before 1 a.m. and resulted in a division of 19 to 10 in favour of the incarceration of the Kennedys for the remainder of the session.

A scant 10 hours later the House was once again sitting, with the Kennedys present. Informed that the House had found them guilty of contempt, they were asked if they had any further statement to make, and replied "Nothing whatever."

A motion was made by the Attorney-General Mr Davie that the Kennedys, for their offence of contempt, be committed to custody.  The motion passed with a margin of 21 to 10.

Later the morning of April 22nd, 1892 Speaker of the House, DW Higgins, issued his formal warrant that the Kennedys be held in detention for the rest of the session.

"To the Sergeant-at-Arms attending the Legislative Assembly of British Columbia:  Whereas James M Kennedy and Robert Kennedy having been adjudged guilty of a contempt have been ordered into the custody of the Sergeant-at-Arms attending the Legislative Assembly. These are therefore to require you to take the bodies of Jas. M Kennedy and Robt. Kennedy and them to keep safely during the pleasure of the said Legislative Assembly or until the same shall be prorogued, or until the Legislative Assembly shall be dissolved, whichever event shall first be signified or happen. . ."
 
Attempts by lawyers to secure their release were unsuccessful and the Kennedys remained in custody — in relative comfort as they were not held in the cells — for a third night.

Business wrapped up  – House Prorogued — Kennedys released

On the 23rd of April legal arguments were submitted by a battery of lawyers for both sides before a Justice of the Supreme Court as representatives  for the Kennedys argued for a writ of habeas corpus.  After two hours the Justice remarked that further argument could wait until after 4 o’clock, as it was expected the House would be prorogued in any case before then.

The second session of the 6th Parliament of British Columbia was prorogued in the late afternoon of April 23, 1892, and the Kennedys consequently released and were free to return home. 

The publishers had been asked by the citizens committee to delay their arrival for a couple of days pending arrangements for a celebration. They would be greeted in Vancouver and paraded by torchlight to a larger rally at New Westminster.  The brothers politely and appreciatively begged off these grand plans.  In a state of exhaustion over the ordeal of the past week, they took the first boat to the mainland.  The Colonist remarked that many MPPs left on the same boat, whose "cosmopolitan insensitiveness carried them all without any serious accident." 

The Kennedys arrived home quietly on Saturday night, rather ironically, via the tramway from Vancouver. 

 

Sounding off –  triumphal celebration — mopping up

At New Westminster, when the city found out the Kennedys were back in town, the Artillery Band was enlisted, and an impromptu parade was got up.

"Shortly after 9 o’clock the band marched up Columbia street playing a martial air, surrounded by a number of torch bearers, and halted in front of The Columbian office, where they played a spirited selection. By this time a crowd of several hundred persons had gathered and three rousing cheers were given for the Kennedys."

Robert Kennedy, James M Kennedy and MPPs JC Brown and Thomas Kitchen  were all called upon to make speeches.  The publishers touted a victory for press freedom, and the politicians made political hay.

JC Brown in particular relished the entire affair as a partisan victory for the Opposition. He claimed the business of the House had been rushed through and the House hastily prorogued to avoid a court order to release the Kennedys. The government had "really begged for an apology"  in order to let the Kennedys leave, but it had received "no such satisfaction."

While Mr Kitchen was speaking amid rising cheers,  the fire alarm bell rang loudly, and depending on which newspaper was reporting,  the crowd remained,  or partially dispersed at this time. 

It was generally taken that the alarm "was a ruse by some of Robson’s pets to try and break up the fun."

In response, the band played the national anthem and once again marched down Columbia Street.

In the week following, serious comment continued about the role of the press and the privileges of legislators, but at the end of the day, the Colonist remarked ruefully on the entire sorry episode that diverted the energy of the House for more than a month.

"As it is, the publishers of the Columbian have more capital out of that false and wholly indefensible article than they have out of anything that has ever appeared in their paper. This is not the kind of punishment that their offence deserved."

Notes and postscript.

  • There were three newspapermen among the sitting members, including Premier John Robson, Speaker DW Higgins, and FL Carter-Cotton.
  • On July 21, 1977, Dave Barrett, late NDP Premier, now sitting as Leader of the Opposition, rose on a question of privilege, complaining that a witness coming to appear before a committee had been interfered with in being told by some government members that the meeting was cancelled — the witness, for BC Rail,  promptly took the next ferry back to the mainland.
    Barrett cited the Kennedy case of 1892 as an example of the necessity for the House to take a stand in safeguarding the integrity of its membership and its procedures.  "Where a summons to appear before a committee was disregarded – indeed, was deliberately disobeyed – the House intervened to vindicate its dignity in the face of the defiance of the Kennedy brothers, publishers of a New Westminster newspaper in 1892."  Barrett,  an astute and studied Parliamentarian, as well as an able and accomplished politician, was himself, if memory serves, once escorted out of the House in like manner as the Kennedys were escorted in,  also vindicated in dignity nonetheless. 
  • The long and the short of it.
    The question of fair comment by the press and the treatment of those who enter political life continues to the present day — as does the opportunity to make use of such controversies to support any cause.  Witness the personal attacks by the Daily Mail on Labour leader Ed Miliband, his response, the public discussion, and attendant press editorializing, almost every commentator treading in alternate steps along both the high road and the low road.
  • Bells, whistles, ruses and abuses.
    From the Mainland Guardian, September 29, 1888.
    "Another Nuisance — Some discussion has been caused about steamboat whistles, but we cannot imagine anything more likely to disorder a nervous or diseased system than the horrible weirdlike clang clang of the fire bell. Our gallant firemen should stop the ringing when it is merely for exercise or they will be short of hands at a fire."
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